CYIL 2015

137 / 464

123
JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION
But it is much worse if the government of that entity incites the perpetration of
genocide or similar acts against its own inhabitants.34 In this case the State itself is
commiting genocide, since its public incitement testifies to certain criminal intent.
Usually this is a continuing act which requires a countermeasure of self-help for its
cessation taken by the international community against the guilty State.35 However,
using counter-genocide as a countermeasure to the genocide is not possible.36 The
case of Serbia’s tragic adventure (1999) is proof of this.
After the failure of measures which did not involve the use of armed force, as
mainly decided by the Security Council in accordance with Article 41 of the UN
Charter (S/RES/1160, 31 March 1998),37 self-help using force was used, as ethnic
cleansing against the Albanians in Kosovo continued (with the deaths of over 1,500
Kosovar Albanians and 400,000 people forced from their homes). The international
community became gravely concerned about the escalating conflict, its humanitarian
consequences, and the risk of it spreading to other countries, particularly to
neighboring Macedonia, where a population of 25% Albanians lives, in comparison
with 64.2% Macedonians for the whole population (2,022,547, census 2002).
NATO governments decided upon military action, carried out on 23 March 1999.38
In the case of Rwanda, the genocide committed there can be described as the
most horrific massacre in history. The ending of that genocidal mass slaughter was
wholly in the hands of the holder of territorial sovereignty, which means the Rwanda
government, which even agreed to punish the perpetrators. The assassination of Tutsi
and moderate Hutu in Rwanda by members of the Hutu majority was mostly the
result of tribal differences; it was the culmination of longstanding ethnic competition
and tensions between the Hutu majority and the minority Tutsi. During the
approximate 100-day period from 7 April to mid-July 1994 an estimated 800,000–
1,000,000 Rwandans were killed, constituting as much as 20% of the country’s total
34 In this relation relevant passages of the Genocide convetion (see note 28 above) are cited: Article 2.
– “In the present Convention, genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such: • (a) Killing members
of the group; • (b) Causing serious bodily or mental harm to members of the group; • (c) Deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in whole or
in part; • (d) Imposing measures intended to prevent births within the group; • (e) Forcibly transferring
children of the group to another group.” Article 3. – “The following acts shall be punishable: • (a)
Genocide; • (b) Conspiracy to commit genocide; • (c) Direct and public incitement to commit
genocide; • (d) Attempt to commit genocide; • (e) Complicity in genocide”.
35 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Article 30 –
“The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act,
if it is continuing; (…)”.
36 See Report of the International Law Commission (2001), Commentary to Article 26. Compliance with
peremptory norms, p. 85, para 4: “(…) countermeasures may not derogate from (…) (a peremptory
norm): for example, a genocide cannot justify a counter-genocide.”
37 Cf.
38 For details see