The protection of the collective rights of groups and individuals

International law since 1945 has focused primarily upon the protection of individual human rights, as can be seen from the Universal Declaration of Human Rights. In recent years, however, more attention has been given

to various expressions of the concept of collective rights, although it is often difficult to maintain a strict differentiation between individual and collective rights. Some rights are purely individual, such as the right to life or freedom of expression, others are individual rights that are necessarily expressed collectively, such as freedom of assembly or the right to manifest one's own religion. Some rights are purely collective, such as the right to self-determination or the physical protection of the group as such through the prohibition of genocide, others constitute collective manifestations of individual rights, such as the right of persons belonging to minorities to enjoy their own culture and practise their own religion or use their own language. In addition, the question of the balancing of the legitimate rights of the state, groups and individuals is in practice crucial and sometimes not sufficiently considered. States, groups and individuals have legitimate rights and interests that should not be ignored. All within a state have an interest in ensuring the efficient functioning of that state in a manner consistent with respect for the rights of groups and individuals, while the balancing of the rights of groups and individuals may itself prove difficult and complex.

Prohibition of genocide

The physical protection of the group as a distinct identity is clearly the first and paramount factor. The Convention on the Prevention and Punishment of the Crime of Genocide signed in 1948 reaffirmed that genocide, whether committed in time of war or peace, was a crime under international law. Genocide was defined as 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.

The Convention, which does not have an implementation system, provides that persons charged with genocide shall be tried by a competent tribunal of the state in the territory of which the act was committed or by an international penal tribunal. Several points should be noted. First, the question of intent is such that states may deny genocidal activity by noting that the relevant intent to destroy in whole or in part was in fact absent. Secondly, the groups protected do not include political groups. Thirdly, the concept of cultural genocide is not included, and fourthly there is virtually no mention of means to prevent the crime.

In the 1990s, the issue of genocide unfortunately ceased to be an item of primarily historical concern. Events in the former Yugoslavia and in Rwanda stimulated increasing anxiety in this context. The Statutes of both the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, established to deal with international crimes committed by individuals within defined geographic and chronological jurisdictional limits, have provided for the prosecution of individuals for the crime of genocide. A significant case-law has now developed through these tribunals. The importance of establishing the specific intent to destroy the group in question in whole or in part was emphasised by the Yugoslav Tribunal in the Jelisii. case, while it has been held with regard to the difficulties in establishing the critical intent requirement that recourse may be had in the absence of confessions to inferences from facts. Further, the definition of membership of the groups specifically referred to in the relevant instruments has been carefully analysed. In Akayesu , "the Trial Chamber of the Rwanda Tribunal leaned towards the objective definition of membership of groups, but this has been mitigated by other cases emphasising the importance of subjective element".

The Akayesu case has also been important in emphasising that rape and sexual violence may amount to genocide when committed with the necessary specific intent to commit genocide. The Rwanda Tribunal has also held that genocide may be committed by omission as well as by act. In addition, the question of state responsibility for the crime of genocide has been raised. The International Court of Justice in the Case Coizcerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) was faced with Bosnian claims that Yugoslavia had violated the Genocide Convention.' The Court in its Order of 8 April 1993 on the Request for the Indication of Provisional Measures held that article 9 of the Convention provided a valid jurisdictional basis, while reaffirming the view expressed in the Advisory Opinion on Reservations to the Genocide Convention that the crime of genocide 'shocks the conscience of mankind, results in great losses to humanity..and is contrary to moral law and to the spirit and aims of the United Nations ' . The Court called

upon both parties not to take any action that might aggravate or extend the dispute over the prevention or punishment of the crime of genocide.

The government of Yugoslavia (Serbia and Montenegro) was requested

to take all measures within its power to prevent commission of the crime of genocide, and was specifically called upon to ensure that 'any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide. These provisional measures were reaffirmed by the Court in its Order on Provisional Measures of 13 September 1993 as measures which should be 'immediately and effectively implemented. On 11 July 1996, the Court rejected the Preliminary Objections raised b Yugoslavia. In particular, the Court emphasised that it followed from the object and purpose of the Genocide Convention that the rights and obligations contained therein were rights and obligations erga omnes and that the obligation upon each state to prevent and punish the crime of genocide was not dependent upon the type of conflict involved in the particular situation (whether international or domestic) and was not territorially limited by the convention. The type of state responsibility envisaged under article 9 of the Convention did not exclude any form of state responsibility. In addition, the Court observed that the Convention did not contain any clause the object or effect of which was to limit the scope of its jurisdiction ratione temporis so as to exclude events prior to a particular date.''' Yugoslavia subsequently withdrew the counter-claims it had introduced against Bosnia, while introducing an application in April 2001 for revision of the 1996 judgment on the basis that a 'new fact' had appeared since that state had become a new member of the UN during 2000.