By Charles H. Camp, Hagar Sivan and Kale Wright
Introduction
More and more cases are being filed with the International Court of Justice (“ICJ”) to enforce alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in 1948 (“Genocide Convention”) and ratified by 153 States. The Genocide Convention makes genocide a crime under international law and obligates States to preventing and punish anyone committing acts of genocide. Article IX of the Genocide Convention mandates that disputes “relating to the interpretation, application or fulfilment of the present Convention… shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
Of paramount importance in our World today are pending cases at the ICJ brought by numerous countries around the World for alleged genocide in Israel, Gaza, Russia and Ukraine.
Voluntary Compliance With ICJ Judgments Does Not Work
Under the U.N. Charter, nations are expected to comply with ICJ decisions in matters to which they are parties. Should a party to an ICJ ruling fail to comply, the U.N. Charter permits the aggrieved to request the Security Council take non-forcible means to compel compliance with a ruling. However, with growing criticism of the ICJ’s ability to enforce its decisions—and countries such as Russia permanently serving on the Security Council and able to block all decisions adverse to Russia—States must look to other tribunals yet to be created, or to their own courts, in order to effectively enforce ICJ Judgments issued under the Genocide Convention.
Since the ICJ itself does not have a mechanism to enforce its own Judgments, to be effective, ICJ Judgments must be made enforceable by States and their victims of genocide. Otherwise, what is the relevance to affected States and their victims of the ICJ Judgments eventually to be issued by the Court? The answer is that ICJ Judgments issued pursuant to the Genocide Convention must be enforceable to the same extent as obligations under the Genocide Convention are enforceable.
Nations have long debated whether the Genocide Convention is directly enforceable, i.e., whether it is “self-executing,” or whether each nation must enact laws implementing the Convention.
This debate appears to center around the fact that when States, including the United States, ratified the United Nations Charter, the ratification made ICJ decisions of “binding force . . . between the parties and in respect to that particular case,” Statute of the International Court of Justice (ICJ Statute) Art. 59, 59 Stat. 1062, and obligated such States to “comply with the decision of the International Court of Justice in any case to which it is a party,” U.N. Charter Art. 94(1), 59 Stat. 1051. Nevertheless, U.S. Courts, like others around the World, continue to hold that the Genocide Convention is not self-executing.
Fortunately, President Ronald Reagan signed the Genocide Convention Implementation Act effective November 25, 1988, ratifying the Genocide Convention and making it enforceable in the United States. The Act established the criminal offense of genocide in the U.S. and set forth penalties to be imposed upon those who attempt to or commit any acts of genocide as well as directly and publicly incite acts of genocide.
Supreme Court Opinions On The Enforcement Of ICJ Decisions
Historically, the United States Supreme Court—in considering ICJ decisions not involving self-executing treaties or treaties made enforceable in the United States through implementing legislation—has stated that it would not enforce ICJ decisions adverse to the interests of the United States.
In Medellin v. Texas, a Mexican national turned to the Court to enforce an ICJ decision issued pursuant to the non-self-executing 1963 Vienna Convention on Consular Relations, United Nations, Treaty Series, vo1. 596, p. 261, which would have called for review of his sentence. The Supreme Court held that ICJ interpretations were not binding upon domestic courts. The Court reasoned that the U.S.’s consent to ICJ jurisdiction binds the U.S. in the international sphere but not domestically. Due to separation of powers, the Court refused to recognize any domestic obligation under the ICJ decision, stating instead that it is the legislature’s responsibility to create such an obligation. Therefore, the Court stressed that for it to enforce the decision, Congress would have to expressly create a domestic obligation through implementing legislation–despite the fact, as noted by the Medellin dissent, that President Bush previously stated that Congress need not enact additional legislation to create treaty obligations in the domestic sphere.
Critically, none of the cases before the Supreme Court considered the enforceability of ICJ Judgments issued pursuant to self-executing treaties or treaties made enforceable in the United States by implementing legislation such as the U.S. Genocide Convention Implementation Act of 1987.
Conclusion
Given prior decisions of the United States Supreme Court and the critical differences between prior cases decided by the Supreme Court not involving self-executing treaties or those implemented by United States legislation, and the indisputable fact that the United States has made the Genocide Convention enforceable in the United States, ICJ Judgments issued pursuant to the Genocide Convention should be enforceable in and by the United States and, where permitted by the U.S. Foreign Sovereign Immunities Act—including where a State found to have committed genocide is designated as a state sponsor of terrorism—by victims of genocide or their assignees.
Indeed, all States in our complex World where genocide is occurring every day, must work together to enforce ICJ Judgments domestically and internationally to prevent continuing violations of the Genocide Convention.
About the Authors
Charles H. Camp is an international lawyer with over thirty years of experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. In 2001, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in Washington, D.C. to focus on effective, personalized representation in complex, international matters. Mr. Camp teaches international negotiations at the George Washington University Law School.
Hagar Sivan is a Law Clerk at the Law Offices of Charles H. Camp, P.C. She holds a Bachelor of Arts in Anthropology and International relations and is currently pursuing a Juris Doctorate at the George Washington University Law School.
Kale Wright is a Law Clerk at the Law Offices of Charles H. Camp, P.C. She graduated from Duke University in 2022 and is currently pursuing a Juris Doctorate at the George Washington University Law School.
