JOBNAME: Heieck PAGE: 1 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
1. The P5’s duty to prevent genocide under the Genocide Convention
1 INTRODUCTION
Chapter 1 will discuss the duty to prevent genocide under Article I of the Convention on the Prevention and Punishment of Crime of Genocide (Genocide Convention).1 Chapter 1 will then analyze the scope and breach of the duty to prevent genocide as promulgated by the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)(Bosnian Genocide case).2 To explicate the scope and breach of this duty, Chapter 1 will focus on the due diligence standard as a matter of general international law and as applied in the Bosnian Genocide case. Based on this analysis, Chapter 1 will then review the ramifications of the due diligence standard on all states parties to the Genocide Convention, with a particular focus on China, France, Russia, the UK, and the US, which are the five permanent members of the Security Council (P5) and the ‘great powers’ in the international order. Chapter 1 will conclude by arguing that the duty to prevent genocide requires that these five states must do everything within their collective and individual power to prevent an imminent genocide from occurring and to suppress an active genocide from continuing, by voting for, and not vetoing, either expressly or impliedly, draft Security Council resolutions under Chapter VII. Chapter 1 will further contend that, in the event the Security Council becomes deadlocked as a result of an internationally wrongful veto, the remaining non-vetoing members of the P5 must cooperate outside the Security Council in a variety of ways in an attempt to prevent the genocide. Chapter 1 will finally argue that, if
1 Convention on the Prevention and Punishment of the Crime of Genocide (1948), 78 UNTS 277 [hereinafter Genocide Convention]. 2 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43 [hereinafter Bosnian Geno- cide case].
13
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 1 / Date: 24/5 JOBNAME: Heieck PAGE: 2 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
14 A duty to prevent genocide
international cooperation fails, the ‘lesser powers’ must not recognize as lawful the genocidal situation, nor aid and assist the genocidal actors, while the ‘great powers’ – in particular the US – must engage in military intervention for human protection purposes in an attempt to prevent the genocide.
2 THE GENOCIDE CONVENTION
Article I of the Genocide Convention provides that the ‘Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’.3 William Schabas has observed that, ‘while the final Convention has much to say about punishment of genocide, there is little to suggest what prevention of genocide really means’.4 In fact, according to Schabas, ‘nothing in the debates about [i.e. the travaux préparatoires of] article I provides the slightest clue as to the scope of the obligation to prevent’.5 In 2007, however, the ICJ removed much of this uncertainty when it rendered its final judgment in the Bosnian Genocide case. In that case, the ICJ defined (partially) the scope of the duty to prevent genocide,6 expounded the breach of this duty,7 and ultimately held Serbia internationally responsible for breaching its duty to prevent the genocide at Srebrenica.8
3 THE BOSNIAN GENOCIDE CASE
3.1 Factual and Procedural Background
3.1.1 Factual background As the ICJ rightfully acknowledged in the Bosnian Genocide case, the ‘atrocities committed in and around Srebrenica are nowhere better
3 Genocide Convention, at art. I. 4 W. SCHABAS, Genocide in International Law: The Crime of Crimes, 2nd edn., Cambridge University Press, Cambridge 2009, at 81. 5 Ibid. See also O. BEN-NAFTALI, ‘The Obligations to Prevent and to Punish Genocide’ in P. GAETA (ed.), The UN Genocide Convention: A Commentary, Oxford University Press, Oxford 2009, at 30–1. 6 Bosnian Genocide case, at paras. 428–30. 7 Ibid. at para. 431. 8 Ibid. at para. 438.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 2 / Date: 24/5 JOBNAME: Heieck PAGE: 3 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 15
summarized than in the first paragraph of the Judgment of the Trial Chamber in the Krstic´ case’:9
The events surrounding the Bosnian Serb take-over of the United Nations (‘UN’) ‘safe area’ of Srebrenica in Bosnia and Herzegovina, in July 1995, have become well known to the world. Despite a UN Security resolution declaring that the enclave was to be ‘free from armed attack or any other hostile act’, units of the Bosnian Serb Army (‘VRS’) launched an attack and captured the town. Within a few days, approximately 25,000 Bosnian Mus- lims, most of them women, children and elderly people who were living in the area, were uprooted and, in an atmosphere of terror, loaded onto overcrowded buses by the Bosnian Serb forces and transported across the confrontation lines into Bosnian Muslim-held territory. The military aged Bosnian Muslim men of Srebrenica, however, were consigned to a separate fate. As thousands of them attempted to flee the area, they were taken prisoner, detained in brutal conditions and then executed. More than 7,000 people were never seen again.10
These atrocities became known as the ‘Srebrenica Massacre’, the first case of genocide on European soil since the Holocaust of World War II.
3.1.2 Procedural background The ICJ’s Provisional Measures Order of 8 April 1993 At the first pro- visional measures stage of the Bosnian Genocide case,11 the ICJ indi- cated several provisional measures for Yugoslavia (Serbia and Montenegro) and Bosnia and Herzegovina pursuant to Article I of the Genocide Convention.12 The Court first noted that ‘all parties to the Convention have … undertaken “to prevent and to punish” the crime of genocide’ as a result of Article I.13 The ICJ then determined that, in light of the factual circumstances of the case, which evidenced the existence of a ‘grave risk of acts of genocide being committed, Yugoslavia and
9 Ibid. at para. 278 (quoting Prosecutor v. Krstic´ (ICTY-IT-98-33-T), Judgment, 2.8.2001 [hereinafter Krstic´ case], at para. 1 (footnotes omitted)). 10 Ibid. (quoting Krstic´ case, at para. 1). Since the issuance of the Krstic´ judgment, this number has been increased to over 8000 dead and/or missing. Families are still identifying the remains of their fallen relatives. 11 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugo- slavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 3 [hereinafter Bosnian Genocide order for provisional measures]. 12 Ibid. at para. 52. 13 Ibid. at para. 45 (quoting Genocide Convention, at art. I).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 3 / Date: 24/7 JOBNAME: Heieck PAGE: 4 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
16 A duty to prevent genocide
Bosnia-Herzegovina, whether or not any such acts in the past may be legally imputable to them, are under a clear obligation to do all in their power to prevent the commission of any such acts in the future’.14 Based on the legal requirements of the duty to prevent genocide under Article I and the factual circumstances of the case, the ICJ concluded by ordering Yugoslavia (Serbia and Montenegro) to ‘take all measures within its power to prevent commission of the crime of genocide’ by all ‘organ- izations and persons which may be subject to its … influence’.15
Security Council Resolution 819 of 16 April 1993 Due to the deterior- ating situation in the Srebrenica enclave, the Security Council adopted Resolution 819 on 16 April 1993, which, inter alia, ‘took note’ of the ICJ’s provisional measures order that ‘the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) should immediately … take all measures within its power to prevent the commission of the crime of genocide’ in accordance with Article I of the Genocide Convention.16 Based on the legal requirements of Article I, the Security Council then made a number of binding demands on Yugoslavia (Serbia and Montenegro) under Chapter VII of the UN Charter,17 including, but not limited to: (1) ‘that all parties and others concerned treat Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act’; (2) that the ‘Bosnian Serb paramilitary units’ immediately cease their armed attacks against Srebrenica and that said units immediately ‘withdraw from the areas surrounding Srebren- ica’; and (3) ‘that the Federal Republic of Yugoslavia (Serbia and Montenegro) immediately cease the supply of military arms, equipment and services to the Bosnian Serb paramilitary units in the Republic of Bosnia and Herzegovina’.18
The ICJ’s Provisional Measures Order of 13 September 1993 At the second provisional measures stage of the Bosnian Genocide case,19 the
14 Ibid. 15 Ibid. 16 Security Council Resolution 819 (Bosnia and Herzegovina), UN Doc.S/ RES/819 (16.4.1993), at 1. 17 Charter of the United Nations (1945), 892 UNTS 119 (1945) [hereinafter UN Charter]. 18 Ibid. at 2. 19 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla- via (Serbia and Montenegro)), Provisional Measures, Order of 13 September
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 4 / Date: 24/5 JOBNAME: Heieck PAGE: 5 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 17
ICJ ruled that it could not indicate further provisional measures for either party, but reaffirmed the provisional measures that it had already ordered on 8 April 1993: ‘the present perilous situation demands, not an indication of provisional measures additional to those indicated by the Court’s Order of 8 April 1993 … but immediate and effective implemen- tation of those measures’.20 In his separate opinion,21 Judge ad hoc Lauterpacht concurred with the Majority’s decision, but argued that additional measures should have been indicated against Yugoslavia (Ser- bia and Montenegro) in light of new evidence.22 In addition, Judge ad hoc Lauterpacht expressly stated that the prohibition of genocide was a jus cogens norm23 and that the prevention of genocide was an erga omnes partes obligation.24
The ICJ’s Preliminary Objections Decision of 11 July 1996 At the pre- liminary objections stage of the Bosnian Genocide case,25 the ICJ found that it had jurisdiction over Bosnia and Herzegovina and Yugoslavia (Serbia and Montenegro), and that the former’s claims were admissible.26 In addition, the ICJ held that ‘the rights and obligations enshrined by the [Genocide] Convention’ – including the duty to prevent genocide under Article I – ‘are rights and obligations erga omnes’.27 The Court further held that ‘the obligation each state thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention’.28 The
1993, I.C.J. Reports 1993, p. 325 [hereinafter Bosnian Genocide order for further provisional measures]. 20 Ibid. at para. 59. 21 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla- via (Serbia and Montenegro)), Provisional Measures, Order of 13 September 1993, Separate Opinion Judge Lauterpacht, I.C.J. Reports 1993, p. 407 [herein- after Bosnian Genocide order (sep. op. Lauterpacht)]. 22 Ibid. at para. 123. 23 Ibid. at para. 100. 24 Ibid. at para. 86, 105. See BEN-NAFTALI, supra note 5, at 38 (observing that ‘[t]he Separate opinion of Judge ad hoc Lauterpacht began, however, to articulate this issue, drawing on both the jus cogens and the erga omnes nature of the obligation to prevent’). 25 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla- via (Serbia and Montenegro)), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595 [hereinafter Bosnian Genocide preliminary objections judgment]. 26 Ibid. at para. 47. 27 Ibid. at para. 31. 28 Ibid.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 5 / Date: 24/5 JOBNAME: Heieck PAGE: 6 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
18 A duty to prevent genocide
ICJ based these determinations on the object and purpose of the Genocide Convention, as expressed in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion (hereinafter Reservations to Genocide Convention opinion).29
3.2 Primary Issue in the Case and Preliminary Observations of the Court
At the merits stage of the Bosnian Genocide case, one of the main issues was whether Serbia had breached its duty to prevent genocide under Article I of the Genocide Convention when it failed to take any measures to prevent the Srebrenica Massacre.30 Before the ICJ addressed the scope and breach of this duty, however, it offered some preliminary obser- vations regarding: (1) the concept of the duty to prevent in general; (2) the relationship between the duty to prevent genocide and the duty not to commit (i.e. the prohibition of) genocide; and (3) the contrast between the duty to prevent genocide and the duty to punish genocide. The ICJ’s preliminary observations in this regard were limited to the relevant articles under the Genocide Convention.
3.2.1 The concept of the duty to prevent in general The ICJ first noted that the concept of the ‘duty to prevent’ exists in several instruments other than the Genocide Convention,31 including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984);32 the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Includ- ing Diplomatic Agents (1973);33 the Convention on the Safety of United
29 Ibid. (quoting Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15 [hereinafter Reservations to Genocide Convention opinion], at 23.) 30 Bosnian Genocide case, at paras. 425–38. 31 Ibid. at para. 429. 32 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), 1465 UNTS 85 [hereinafter the Convention Against Torture], at art. 2(1) (providing that ‘[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’). It is important to note that Genocide Convention does not provide for a similar jurisdictional limitation with respect to the duty to prevent genocide. See Genocide Convention, at art. I. 33 Convention on the Prevention and Punishment of Crimes Against Inter- nationally Protected Persons, Including Diplomatic Agents (1973), 1035 UNTS 107, at art. 4 (providing that ‘State Parties shall co-operate in the prevention of
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 6 / Date: 24/5 JOBNAME: Heieck PAGE: 7 SESS: 6 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 19
Nations and Associated Personnel (1994);34 and the International Con- vention for the Suppression of Terrorist Bombings (1998).35 The Court then observed that the ‘content of the duty to prevent varies from one instrument to another, according to the wording of the relevant pro- visions, and depending on the nature of the acts to be prevented’.36 The ICJ next explained that its decision ‘does not, in this case, purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for states to prevent certain acts’.37 The Court emphasized that, ‘[s]till less does the decision of the Court purport to find whether, apart from the texts applicable to specific fields, there is a general obligation on states to prevent the commission by other persons or entities of acts contrary to certain norms of general international law’.38 Instead, the Court con- tended that it would ‘confine itself to determining the specific scope of the duty to prevent in the Genocide Convention, and to the extent that such a determination is necessary to the decision to be given on the dispute before it’.39 The ICJ’s parting comments on the concept of the duty to prevent raise two common issues in the jurisprudence of the Court. The first issue deals with the ‘doctrine of avoidance’. In US Constitutional Law, the doctrine of avoidance simply means that a court will not render a judgment on a constitutional question if there exists another, non- constitutional ground on which the court may base its decision.40 In other words, a US court will not rule upon a constitutional issue unless it is absolutely necessary. At the international level, a similar doctrine of
the crimes set forth in article 2, particularly by: (a) taking all practicable measures to prevent preparations in their respective territories for the commission of those crimes within or outside their territories; (b) exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those crimes’). 34 Convention on the Safety of United Nations and Associated Personnel (1994), 2051 UNTS 363, at art. 11 (providing, in relevant part, that ‘States Parties shall cooperate in the prevention of the crimes set out in article 9’). 35 International Convention for the Suppression of Terrorist Bombings (1998), 2149 UNTS 256, at art. 15 (providing, in relevant part, that ‘States Parties shall cooperate in the prevention of the offences set forth in article 2’). 36 Bosnian Genocide case, at para. 429. 37 Ibid. 38 Ibid. 39 Ibid. 40 See, e.g., Ashwander v. Tennessee Valley Auth. 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 7 / Date: 26/7 JOBNAME: Heieck PAGE: 8 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
20 A duty to prevent genocide
avoidance exists, albeit in a slightly modified form. As evidenced by its case law, the ICJ does not generally rule upon an issue that is not absolutely necessary to adjudicate the case at hand.41 In the Bosnian Genocide case, the ICJ was presented with the question of whether Serbia had breached its duty to prevent under Article I of the Genocide Convention. As a result, the Court purported to limit its decision to this conventional question in the context of the factual circumstances of the case. However, the ICJ’s caveat does not mean that the ratio decidendi of the Bosnian Genocide case is not applicable to the scope of the duty to prevent genocide under customary international law or jus cogens,orto the scope of other customary or peremptory duties to prevent that might exist.42 The second issue raised by the ICJ’s comments deals with the doctrine of stare decisis (which is Latin for ‘to stand by things decided’). Article 59 of the Statute of the International Court of Justice (the ICJ Statute)43 provides that the ‘decision of the Court has no binding force except between the parties and in respect of that particular case’.44 This provision has led to the widely held view that stare decisis, or case precedent, does not exist in international law.45 This proposition is somewhat of a legal fiction, however. ‘[I]t is natural that in practice[,] awards and judgments will exercise a very powerful influence upon other tribunals in relation to determinations of fact and responsibility, and in relation to their appraisal of the law.’46 This phenomenon has arisen in the jurisprudence of the ICJ, which routinely cites to its own case law in
41 But see the Court’s obiter dictum in the Barcelona Traction case, at paras. 33–4 (noting that the prohibitions of aggression, genocide, slavery and racial discrimination were obligations erga omnes). Case Concerning Barcelona Trac- tion, Light, and Power Co., Ltd. (Belgium v. Spain), I.C.J. Reports 1970,p.3. 42 See SCHABAS, supra note 4, at 533. Whether the ratio decidendi of the Bosnian Genocide case applies to the duties to prevent war crimes, crimes against humanity, and ethnic cleansing – the other three ‘core crimes’ under the R2P umbrella – are beyond the scope of this book. 43 Statute of the International Court of Justice (1945), 15 UNCIO 355 (1945) [hereinafter ICJ Statute]. 44 Statute of the International Court of Justice (1945), 15 UNCIO 355 (1945), at art. 59. 45 J. COLLIER and V. LOWE, The Settlement of Disputes in International Law: Institutions and Procedures 1st edn., Oxford University Press, Oxford 1999, 262. 46 Ibid. at 262–3 (citing R.Y. JENNINGS, ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 ICLQ (Inter- national and Comparative Law Quarterly)1.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 8 / Date: 24/5 JOBNAME: Heieck PAGE: 9 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 21
deciding pending cases.47 Despite its exhortations to the contrary, there- fore, the ICJ’s decision in the Bosnian Genocide case carries significant weight with respect to the duty to prevent genocide outside of the conventional context and factual circumstances related to the dispute between Bosnia and Serbia.
3.2.2 The relationship between the duty to prevent genocide and the duty not to commit (i.e. the prohibition of) genocide In addition to addressing the concept of the duty to prevent in general, the ICJ discussed the relationship between the duty to prevent and the duty not to commit (i.e. the prohibition of) genocide under Article I of the Genocide Convention. As already noted, Article I provides that ‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’. While Article I expressly provides for the duty to prevent and the duty to punish genocide (the relationship between which will be discussed in greater detail in section 3.2.3 of this chapter), ‘[t]he Article does not expressis verbis require states to refrain from themselves committing genocide’.48 However, after analyzing Art- icle I in accordance with the interpretive rules of the law of treaties under customary international law,49 as codified in Articles 31 and 32 of the
47 See, e.g., Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 3, at paras. 49 (quoting Reservations to Genocide Convention opinion, at p. 23); Bosnian Genocide preliminary objections judg- ment, at para. 31 (quoting Reservations to Genocide Convention opinion, at p. 23); Bosnian Genocide case, at para. 432 (quoting Bosnian Genocide provisional measures order, at para. 52(A)(2)); Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006,p.6 [hereinafter Rwanda case], at para. 64 (quoting Reservations to Genocide Convention opinion, at p. 23; Bosnian Genocide preliminary objections judg- ment, at para 31). 48 Bosnian Genocide case, at para. 166. 49 Ibid. at paras. 160–7, esp. para. 160 (citing Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174, at para. 94; Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 48, at para. 83; LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 501, at para. 99; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 645, at para. 37). See also Kasikili/Sedudu Island (Botswana/Namibia),
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 9 / Date: 24/5 JOBNAME: Heieck PAGE: 10 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
22 A duty to prevent genocide
Vienna Convention on the Law of Treaties (VCLT),50 the ICJ concluded that, ‘in the view of the Court, taking into account the established purpose of the [Genocide] Convention,51 the effect of Article I is to prohibit states from themselves committing genocide’.52 The Court reached this conclusion based on a two-part rationale: (1) genocide is a crime under international law, an act which the states parties to the Genocide Convention logically agreed not to commit; and (2) the duty to prevent genocide necessarily entails the duty not to commit genocide.53 As further support for this view, the ICJ held that the prohibition of genocide constitutes a rule of customary international law54 and a norm of jus cogens.55
3.2.3 The contrast between the duty to prevent genocide and the duty to punish genocide After addressing the relationship between the prevention and prohibition of genocide, the ICJ discussed the similarities and differences between the duty to prevent and the duty to punish under the relevant articles of
Judgment, I.C.J. Reports 1999, p. 1045, at para. 18 (citing Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 21, at para. 41; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 812, at para. 23). 50 Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331 (1980), [hereinafter VCLT], at arts. 31 and 32. 51 For the object and purpose of the Genocide Convention, see Reservations to Genocide Convention opinion, at pp. 23–4. 52 Bosnian Genocide case, at para. 166 (emphasis added). See ibid. at para. 161 (citing The Crime of Genocide, General Assembly Resolution 96(I), UN Doc.A/RES/96(I), 11.12.1946 [hereinafter GA Res. 96(I)], at 188–9; Reserva- tions to Genocide Convention opinion, at p. 23). 53 Ibid. But see P. G AETA, ‘On What Conditions Can a State Be Held Responsible for Genocide?’ (2007) 18(4) EJIL (European Journal of Inter- national Law) 631–48, passim (strongly criticizing the ICJ’s rationale in finding the prohibition of genocide in Article I of the Genocide Convention in this manner). 54 Ibid. at paras. 161 (quoting Reservations to Genocide Convention opin- ion, at p. 23) (quoting GA Res. 96(I), at 188–9; Genocide Convention, at preamble)). 55 Ibid. (citing Rwanda case, at para. 64 (holding that the prohibition of genocide was ‘assuredly’ a jus cogens norm)). See also id. (quoting Bosnian Genocide preliminary objections judgment, at para. 31 (noting that ‘[i]t follows that “the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes”’)).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 10 / Date: 24/5 JOBNAME: Heieck PAGE: 11 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 23
the Genocide Convention.56 The Court noted at the outset that ‘[d]espite the clear links between the duty to prevent genocide and the duty to punish its perpetrators, these are, in the view of the Court, two distinct yet connected obligations, each of which must be considered in turn’.57 The Court observed that ‘[i]t is … true that one of the most effective ways of preventing criminal acts, in general, is to provide penalties for persons committing such acts, and to impose those penalties effectively on those who commit the acts one is trying to prevent’.58 Notwith- standing the preventive effect of the punishment of genocide, and the codification of the duties to prevent and to punish in Article I of the Genocide Convention, the Court concluded that the similarities between the two duties ended there.59 In support of this conclusion, the ICJ noted that, while the Genocide Convention discusses in detail the duty to punish perpetrators of genocide in Articles III to VII,60 the Convention expressly mentions the duty to prevent genocide (outside of Article I) only in Article VIII.61 Article VIII
56 Bosnian Genocide case, at paras. 425–7 (analyzing Articles I, III, IV, V, VI, VII, and VIII of the Genocide Convention). 57 Ibid. at para. 425. 58 Ibid. at para. 426. For empirical evidence supporting the Court’s claim of the preventive effect of the duty to punish genocide, see G. DANCY, B. MARCHESI,F.MONTAL, and K. SIKKINK, ‘The ICC’s Deterrent Impact – What the Evidence Shows’, openDemocracy 3.2.2015
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 11 / Date: 24/5 JOBNAME: Heieck PAGE: 12 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
24 A duty to prevent genocide
provides that ‘[a]ny Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III’.62 The ‘may call upon’ language in Article VIII is revealing because ‘it declares nothing more than something to which all member States of the United Nations are entitled in any case’,63 which is the permissive right to ‘bring any dispute, or any situation [which might lead to international friction or give rise to a dispute], to the attention of the Security Council’.64 This fact led the ICJ to conclude that Article VIII ‘may be seen as completing the system by supporting both prevention and suppression, in this case at the political level rather than as a matter of legal responsibility’.65 In other words, while Articles III to VII of the Genocide Convention impose legal obligations on states, Article VIII does not. Despite the disparate treatment of the duty to punish and the duty to prevent in the aforementioned articles, the ICJ held that the duty to prevent genocide under Article I has not only a ‘separate legal existence’ but also a ‘normative and compelling’ force all of its own.66 For this reason, the Court determined that the duty to prevent genocide ‘has its own scope, which extends beyond the particular case envisaged in Article VIII, namely reference to the competent organs of the United Nations, for them to take such action as they deem appropriate’.67 Moreover, the Court emphasized that ‘[e]ven if and when these organs have been called upon this does not mean that the States parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring, while respecting the United Nations Charter and any decisions that may have been taken by its competent organs’.68 Some scholars have cited this last clause – ‘while respecting the United Nations Charter and any decisions that may have been taken by
62 Genocide Convention, at art. VIII (emphasis added). 63 SCHABAS, supra note 4, at 85. See, e.g., UN Charter, at art. 35. 64 UN Charter, at art. 35 (quoting UN Charter, at art. 34). See Bosnian Genocide order for further provisional measures, at para. 47 (noting that ‘Article VIII, even assuming it to be applicable to the Court as one of the “competent organs of the United Nations”, appears not to confer on it any functions or competence additional to those provided for in [the ICJ] Statute’). 65 Bosnian Genocide case, at para. 159 (emphasis added). See SCHABAS, supra note 4, at 533–4. 66 Bosnian Genocide case, at para. 427. 67 Ibid. 68 Ibid. (emphasis added).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 12 / Date: 24/7 JOBNAME: Heieck PAGE: 13 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 25
its competent organs’ – as evidence that the duty to prevent genocide is not a peremptory norm of general international law, as its normative status would arguably be subservient to the supremacy of the UN Charter and the decisions of the Security Council as a result of Article 103.69 While this issue will be discussed in greater detail in Chapter 4, several facts militate against this view. The most important fact is that the ICJ included this contested clause in the context of a two-part ‘argument in the alternative’ vis-à-vis the state’s duty to prevent genocide. In the primary argument, the ICJ determined, in effect, that the duty to prevent genocide under Article I has a ‘separate legal existence’ and ‘normative and compelling’ force independent of not only Article VIII, but also the provisions of the UN Charter and the decisions of the ‘competent’ UN organs.70 In light of this independence, the Court concluded that the duty to prevent genocide ‘has its own scope’ (which will be discussed in greater detail in section 3.3 of this chapter), which requires the states parties to the Genocide Convention to ‘take such action as they deem appropriate’ within or without the Security Council context.71 Only in the secondary argument – i.e. the argument in the alternative – is the contested clause injected.72 In the secondary argument, the ICJ deter- mined that, even if the Security Council has been called upon to act, as permitted by Article VIII of the Genocide Convention and Article 35 of the UN Charter, the states parties to the Genocide Convention are still not excused from their duty under Article I to ‘take such action as they can to prevent genocide from occurring’, provided they do so ‘while respecting the United Nations Charter and any decisions that may have been taken by its competent organs’.73 While the contested clause may therefore appear to place legal limitations on the exercise of the states’ duty to prevent genocide under Article I of the Genocide Convention once the Security Council has been called upon to act under Article 35 of the UN Charter, it does not. As noted above, the contested clause in the secondary argument has no legal force and effect on the states parties to the Genocide Convention, because the ICJ made the comment in the
69 See, e.g.,M.VENTURA and D. AKANDE, ‘Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention’, EJIL:Talk!, 6.9.2013
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 13 / Date: 24/5 JOBNAME: Heieck PAGE: 14 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
26 A duty to prevent genocide
context of discussing Article VIII, which, as the Court said, imposes no legal obligations on states. Moreover, the travaux préparatoires of Article VIII makes it clear that the drafters of the Genocide Convention had no intention of requiring prior authorization by the Security Council, or any other organs of the UN for that matter, to carry out the duty to prevent genocide as expressed in Article I.74 Throughout the drafting history of the Genocide Convention, the Soviet Union repeatedly insisted on inserting a provision that would require any actions aimed at preventing or suppressing genocide to proceed exclusively through the Security Council.75 However, at each attempt to include such a provision, the Soviet Union was met with stiff resistance, and its proposal was consistently rejected and ultimately dropped from the final draft of the Convention.76 Furthermore, at one point during the drafting process, Article VIII was deleted altogether,77 although it was reinserted later.78 As a result of its drafting history, ‘most commentators have tended to dismiss article VIII as relatively insignificant’.79 For example, ‘Nehemiah Robinson observed that the “low value” the drafters gave to the provision is shown by the fact that it was originally deleted’,80 while ‘Benjamin Whitaker wrote that article VIII adds nothing new to the [Genocide] Convention’.81 Thus, neither Article VIII of the Genocide Convention,
74 SCHABAS, supra note 4, at 85, 534–8. 75 Ibid. at 535–8. 76 Ibid. at 537. This was the result of the post-war power play between the US and the USSR. Illustrative of this phenomenon was the USSR’s abstention from voting for the Universal Declaration on Human Rights (UDHR). The grounds for the Soviet abstention were that the UDHR neither safeguarded the notion of self-determination nor outlawed the crime of Nazism. When it came to the formulation of Article VIII of the Genocide Convention, ‘[t]he Soviet Union pushed for a stronger formulation, considering that it should be an obligation upon States to report the genocide to the Security Council so that measures could be taken in accordance with Chapter VI of the Charter’. Ibid. at 535 (citing ‘Basic Principles of a Convention on Genocide’, UN Doc. E/AC.25/7). ‘It seems the Soviets were concerned not so much with the powers of the Security Council, where they held a veto, as with the alternative, which was litigation before the International Court of Justice. Making the Council the principal body could, conceivably, obstruct the role of the Court.’ Ibid. 77 Ibid. 78 Ibid. at 538. 79 Ibid. 80 Ibid. (citing N. ROBINSON, The Genocide Convention: A Commentary, Institute of Jewish Affairs 1960, 90). 81 Ibid. (citing B. WHITAKER, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, 38 U.N. ESCOR
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 14 / Date: 24/5 JOBNAME: Heieck PAGE: 15 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 27
nor the Court’s comments – ‘while respecting the United Nations Charter and any decisions that may have been taken by its competent organs’ – in the context of its discussion on Article VIII, impose any legal obligations on states to seek prior authorization from the Security Council, or any other organs of the UN, before discharging their duty to prevent genocide. While such actions may be politically preferable in certain circumstances, they are not legally required. As such, any reliance on Article VIII, or the Court’s aforementioned comments, as support for the view that the duty to prevent genocide is limited by the provisions of the UN Charter or the decisions of the Security Council, and thus not a peremptory norm of general international law, is misplaced. In sum, although both the duty to prevent and the duty to punish are included in Article I of the Genocide Convention, they impose distinct legal obligations on states. The latter is widely described throughout the Genocide Convention, while the former is not. Nevertheless, the duty to prevent genocide is so ‘normative and compelling’ that it cannot be abrogated even if the relevant UN organs, once called upon, fail to act: such a failure ‘does not mean that the states parties to the Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring’.82 The questions become then, what is the scope of this ‘compelling’ duty, and how may it be breached? These questions will be addressed in the remaining sections of Chapter 1 below.
3.3 The Scope and Breach of the Duty to Prevent Genocide
In defining the scope and breach of the duty to prevent genocide in the Bosnian Genocide case, the ICJ had to first develop the law and then apply the law to the facts of the case. The Court accomplished this task by adopting a specific ‘due diligence standard’, which establishes the standard of care by which the conduct of states is to be judged in order to determine whether the duty to prevent genocide has been breached. In paragraph 430 of the judgment, the ICJ observed the following about the due diligence standard:
[I]t is clear that the obligation [to prevent genocide] is one of conduct and not one of result, in the sense that a State cannot be under an obligation to
Comm. on Human Rights, Subcomm. on Prevention of Discrimination and Protection of Minorities, (Agenda Item 4), 8–9, UN Doc.E/CN.4/Sub.2/1985/6 (1985), at para. 66). 82 Bosnian Genocide case, at para. 427.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 15 / Date: 24/5 JOBNAME: Heieck PAGE: 16 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
28 A duty to prevent genocide
succeed, whatever the circumstances, in preventing the commission of geno- cide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of ‘due diligence’, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly dis- charged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each comply- ing with its obligation to prevent, might have achieved the result – averting the commission of genocide – which the efforts of only one State were insufficient to produce.
In paragraph 431, the Court continued its explication of the due diligence standard by noting that:
[a] State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.
Put differently, according to the Court, the due diligence standard provides that if a state has the capacity to effectively influence genocidal actors and the knowledge that there exists a serious risk that genocide might occur, the state has a positive legal duty to use its best efforts within the means available to it to prevent the genocide from occurring.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 16 / Date: 24/5 JOBNAME: Heieck PAGE: 17 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 29
Before discussing the specifics of this standard, and the consequences thereof in the Bosnian Genocide case (and beyond), however, it is necessary to review the due diligence standard in general, in order to situate the former in the context of the latter and to elucidate how the duty to prevent genocide applies to all states parties to the Genocide Convention, including, in particular, China, France, Russia, the UK, and the US.
3.3.1 The due diligence standard in general Over the centuries, numerous international legal scholars,83 claims com- missions,84 arbitration awards,85 and judicial cases86 have observed,
83 For a detailed historical exposition of the positions of scholars on due diligence and related matters, see J.A. HESSBRUEGGE, ‘The Historical Develop- ment of Attribution and Due Diligence in International Law’ (2003–2004) 36 N.Y.U. J. Int’l L. and Pol. (New York University Journal of International Law and Politics) 265 (citing, inter alia,GENTILI,GROTIUS,ZOUCHE,PUFENDORF,WOLFF, VATTEL,PHILLIMORE,HALL,OPPENHEIM, and TRIEPEL); R.P. BARNIDGE, ‘The Due Diligence Principle under International Law’, 2006, 1
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 17 / Date: 24/5 JOBNAME: Heieck PAGE: 18 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
30 A duty to prevent genocide
either expressly or impliedly, in areas as varied as environmental law, the law of the sea, diplomatic law, the law on the protection of foreign nationals, human rights law, and humanitarian law,87 that the duty to prevent a given activity, such as genocide, necessarily entails the appli- cation of the due diligence standard. Generally speaking, due diligence (or negligence)88 refers to the standard of care (or vigilance)89 required of states with respect to a potential harm. This standard of care is deter- mined at the level of primary, as opposed to secondary, rules; meaning, the contours of a specific due diligence standard are determined by the subject matter of the corresponding primary obligation found in treaties and custom, such as the duty to prevent genocide,90 rather than the secondary obligations reflected in the 2001 Articles on Responsibility of
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226 [hereinafter Nuclear Weapons], at 241–2; Gabcˇikovo- Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997,p.7 [hereinafter Gabcˇikovo-Nagymaros], at 78; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168 [hereinafter Armed Activities (DRC v. Uganda)], at paras. 178, 247, 248, 250; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14 [hereinafter Pulp Mills], at para. 205; Bosnian Genocide case, at para. 430. See BARNIDGE, supra note 83, at 34–9, 43, 47–50, 62, 64; KOIVUROVA, infra note 87, at 36–43. 87 BARNIDGE, supra note 83, at passim. See T. KOIVUROVA, ‘Due Diligence’ in Max Planck Encyclopedia of Public International Law (MPEPIL), last updated 2.2010, at paras. 29, 32, 33, 45; International Committee of the Red Cross (ICRC), Commentary on the First Geneva Convention: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edn., 2016, at para. 165. 88 BARNIDGE, supra note 83, at 2 (citing R.P. MAZZESCHI, ‘Forms of International Responsibility for Environmental Harm’ in F. FRANCIONI and T. SCOVAZZI (eds.), International Responsibility for Environmental Harm, Graham and Trotman, London 1991, at 15, 16; I. BROWNLIE, Principles of Public International Law, 6th edn., Oxford University Press, Oxford 2003, 425; A. CASSESE, International Law, 2nd edn., Oxford University Press, Oxford 2005, 250–1; M.N. SHAW, International Law, 5th edn., Cambridge University Press, Cambridge 2003, 698). See Youmans, at 159; BARNIDGE, supra note 83, at 18; KOIVUROVA, supra note 87, at paras. 1, 43. 89 Gabcˇikovo-Nagymaros,at78;Armed Activities (DRC v. Uganda),at para. 247. 90 For the duty to prevent genocide as a conventional norm, see Genocide Convention, at art. I. For the duty to prevent genocide as a customary norm, see SCHABAS, supra note 4, at 533. See also GA Res. 96(I), at 188–9; Reservations to Genocide Convention opinion, at 23; Genocide Convention, at preamble, art. I; SCHABAS, supra note 4, at 55–6, 114, 526.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 18 / Date: 24/5 JOBNAME: Heieck PAGE: 19 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 31
States for Internationally Wrongful Acts (ARSIWA),91 such as attribu- tion.92 The subject matter of primary obligations is, in turn, dependent upon the presence of both objective and subjective elements.93
Objective element: linkage As a preliminary matter, it is worth noting that due diligence is generally concerned with the state’s obligations in relation to the conduct of non-state, or ‘private’, actors.94 The term ‘private actors’ has been broadly defined in the literature as ‘all persons lacking the status of State organs [or agents]’.95 Thus, if an actor is neither a de jure nor a de facto organ or agent of a particular state, then the actor is considered a ‘private actor’ for purposes of that state’s responsibility.96 However, when it comes to state responsibility for prohibited conduct, due diligence demands that ‘it is the omission on the part of the state, not the injurious act by the private actor, for which the state may be responsible’.97 In other words, ‘[p]urely private acts will not engage the State’s responsibility, although the State may in certain circumstances be liable for its [own] failure to prevent those acts’.98 Bearing this in mind, it is necessary to consider what the due diligence standard requires. According to established case law, due diligence requires some degree of linkage between (a) private actors who are engaged in a
91 ARSIWA, at ch. II. 92 J. CRAWFORD and S. OLLESON, ‘The Continuing Debate on a UN Convention on State Responsibility’ (2005) 54(4) ICLQ 959, 968; CASSESE, supra note 88, at 244; BARNIDGE, supra note 83, at 9, 12, 14–15; KOIVUROVA, supra note 87, at para. 5. 93 KOIVUROVA, supra note 87, at para. 2. 94 Velásquez Rodríguez, at para. 172; Armed Activities (DRC v. Uganda),at para. 248; KOIVUROVA, supra note 87, at paras. 7, 31, 32, 33. 95 A. KEES, ‘Responsibility of States for Private Actors’ in MPEPIL, last updated 3.2011, at para. 2 (citing Bosnian Genocide case, at paras. 385–95; ARSIWA, at art. 4). 96 Ibid. 97 BARNIDGE, supra note 83, at 21 (quoting B.A. FREY, ‘Small Arms and Light Weapons: The Tools Used to Violate Human Rights’ (2004) 3 Disarmament Forum: Human Rights, Human Security and Disarmament 37, 42
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 19 / Date: 24/7 JOBNAME: Heieck PAGE: 20 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
32 A duty to prevent genocide
prohibited activity, and (b) the state whose international responsibility is in question. As with all aspects of the due diligence standard, however, the particular primary obligation determines the requisite degree of linkage, which in turn depends on a variety of objective considerations, such as territory,99 jurisdiction,100 control,101 or influence.102 And while ‘[d]ue diligence does not require similar measures from all States, as lack of economic and technological capacity may mitigate the attendant obliga- tions for developing countries’,103 due diligence nevertheless imposes ‘obligations to co-operate’ on all states, regardless of their level of develop- ment, in order to ensure that the primary duty to prevent is met104 – a task which ‘requires continuous effort’on the part of states.105 Naturally, ‘[s]uch standards vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation’.106
Subjective element: knowledge Regarding the subjective element, due diligence usually requires some degree of knowledge of the risk of the
99 See, e.g., Massey, at 159; AAPL, at 609–10; Trail Smelter, at 713; Corfu Channel, at 18, 22–23; Pulp Mills, at para. 205. 100 See, e.g., Nuclear Weapons, at 241–2; Trail Smelter, at 713; Pulp Mills,at para. 205. 101 See, e.g., Nuclear Weapons, at 241–2; Corfu Channel, at 18, 22–3. On the difference between effective control over an area (i.e. ‘spatial mode of juris- diction’) and effective control over an individual (i.e. ‘personal mode of jurisdiction’, see M. MILANOVIC,‘Al-Skeini and Al-Jedda in Strasbourg’ 23(1) EJIL 121, 122 (2012) (citing App. No. 15318/89, Loizidou v. Turkey, Judgment (preliminary objections), 23.02.1995; App. No. 15318/89, Loizidou v. Turkey, Judgment (merits), 28.11.1996; App. Nos. 6780/74 and 6950/75, Cyprus v. Turkey (dec.), 26.05.1975; App. No. 11755/85, Stocké v. Germany, Commission Report, 12.10.1989, at para. 166; Lopez Burgos v. Uruguay, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40) at 176 (1981); General Comment No. 31, Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc.CCPR/C/21/Rev.1/Add.13 (2004), at para. 10). 102 Bosnian Genocide case, at para. 430; ICRC, Commentary on the First Geneva Convention, 2016, at para. 165. 103 KOIVUROVA, supra note 87, at paras. 19, 39, 40. 104 Ibid. at paras. 19, 21. 105 Ibid. at para. 22 (quoting APTH Commentaries, infra note 107, at 420). See ARSIWA, at art. 14(3). 106 J. CRAWFORD, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, Cambridge 2005 (2002), at 82.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 20 / Date: 24/5 JOBNAME: Heieck PAGE: 21 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 33
occurrence of the relevant harm,107 which must be ‘significant’108 or ‘serious’.109 In assessing the knowledge, or foreseeability, of this risk, a ‘reasonable government’ standard, quite similar to the ‘reasonable per- son’ standard in American tort law,110 is often employed.111 Depending on the particular primary obligation, this standard of knowledge may be either actual or constructive.112 Actual knowledge naturally refers to the knowledge that a particular state actually has,113 whereas constructive knowledge refers to the knowledge that a reasonable state has or should have had under like circumstances.114 ‘[W]here the risk is serious or irreversible’, however, ‘due diligence “could involve, inter alia, taking
107 Corfu Channel, at 18, 22–3; Tehran Hostages, at 32–3; Youmans, at 112. See BARNIDGE, supra note 83, at 57–60 (citing ILC, Articles on Prevention of Transboundary Harm from Hazardous Activities,inREPORT OF THE INTER- NATIONAL LAW COMMISSION ON THE WORK OF ITS FIFTY-THIRD SESSION 370, arts. 1–4, U.N. Doc.A/56/10 Supp. No. 10 (2001) [hereinafter APTH]; ILC, Commentaries, Articles on Prevention of Transboundary Harm from Hazardous Activities, in REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS FIFTY-THIRD SESSION 377, 385, 388, U.N. Doc.A/56/10 Supp. No. 10 (2001) [hereinafter APTH Commentaries]). 108 BARNIDGE, supra note 83, at 57–60 (citing APTH, at arts. 1–4; APTH Commentaries, at 387, 390); KOIVUROVA, supra note 87, at para. 42 (citing Pulp Mills, at para. 205). 109 KOIVUROVA, supra note 87, at para. 18. 110 BARNIDGE, supra note 83, at 60 (citing H.L.A. HART, The Concept of Law, 2nd edn., Oxford University Press, Oxford 1994, 132–3). 111 AAPL, at 612; APTH Commentaries, at 395; Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L/143/56, art. 1, at 56, 59. See BARNIDGE, supra note 83, at 53, 59, 61; KOIVUROVA, supra note 87, at paras. 1, 16. 112 Tehran Hostages, at 32–3; CRAWFORD, supra note 106, at 81–2. See also supra ibid. at 438. 113 CRAWFORD, supra note 106, at 82; CRAWFORD and OLLESON, supra note 98, at 968. See BARNIDGE, supra note 83, at 2 (citing MAZZESCHI, supra note 88, at 16); M. BEDJAOUI, ‘Responsibility of States: Fault and Strict Liability’ (1987) 10 EPIL (Encyclopedia of Public International Law) 358, 359. 114 BARNIDGE, supra note 83, at 60 (citing APTH Commentaries, at 385) (noting that such knowledge generally required an ‘appreciation of possible harm resulting from an activity which a properly informed observer had or ought to have had’ in light of the facts and circumstances)). See also Corfu Channel,at18 (discussing the ‘knew or ought to have known’ standard with respect Albania’s knowledge of the mine-laying in its territorial waters); BARNIDGE, supra note 83, at 36–7 (discussing the relevance of ‘circumstantial evidence and factual inferences’ in proving Albania’s knowledge in Corfu Channel).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 21 / Date: 24/5 JOBNAME: Heieck PAGE: 22 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
34 A duty to prevent genocide
such measures as are appropriate by way of abundant caution, even if full … certainty does not exist, to avoid or prevent serious or irreversible damage”’.115
The presence of the objective and subjective elements triggers the duty to prevent the wrongful conduct If a state has both the requisite linkage to private actors engaged in unlawful conduct and the knowledge that there exists a serious risk that harm will result from such conduct, the state’s duty to prevent the given conduct is triggered. It is important to note, however, that due diligence imposes ‘obligations of conduct’ rather than ‘obligations of result’.116 Obligations of result require states to achieve the result sought by the primary obligation, whereas obligations of conduct (or means) require states to use their ‘best efforts’ to reach the relevant result without ‘guaranteeing’ that the result will actually be achieved.117 In other words, obligations of conduct are positive obliga- tions118 that require states to act if they have the means to do so.119 Whether a state has used its ‘best efforts’ in discharging its positive obligations is determined ex ante by whether the state has taken all appropriate, necessary, and proportional measures at its disposal with respect to the activity in question.120
3.3.2 The due diligence standard in the Bosnian Genocide case Objective element: capacity to effectively influence With respect to the objective linkage requirement, the ICJ noted in the Bosnian Genocide case that the scope of the duty to prevent genocide ‘is not territorially
115 KOIVUROVA, supra note 87, at para. 18 (quoting APTH Commentaries (citing Rio Declaration on Environment and Development, U.N. Doc.A/ CONF.151/26/Rev.1, vol. I, 3, princ. 15, 394–5 (14.6.1992))). 116 P. D UPUY, ‘Reviewing the Difficulties of Codification: On Ago’s Classi- fication of Obligations of Means and Obligations of Result in Relation to State Responsibility’ (1999) 10(2) EJIL 371, 379. See CRAWFORD, supra note 106, at 140; BARNIDGE, supra note 83, at 50; KOIVUROVA, supra note 87, at paras. 3, 8; ICRC, Commentary on the First Geneva Convention, 2016, at para. 165. 117 DUPUY, supra note 116, at 379; CRAWFORD, supra note 106, at 140. 118 DUPUY, supra note 116, at 379. See M.P. CARAZO,‘Velásquez Rodríguez v Honduras Case’ in MPEPIL, last updated 6.2008, at para. 23; ICRC, Commen- tary on the First Geneva Convention, 2016, at para. 164. 119 Tehran Hostages, at 32–3. See KOIVUROVA, supra note 87, at para. 19. 120 See, e.g., Sambiaggo, at 509–10; Janes,at86;Youmans, at 112–14; Lake Lanoux, at 123; AAPL, at 616; Corfu Channel, at 18, 22–3; Tehran Hostages,at 32–3; Armed Activities (DRC v. Uganda), at para. 248. See CRAWFORD, supra note 106, at 140; KOIVUROVA, supra note 87, at paras. 17, 35, 36–43.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 22 / Date: 24/5 JOBNAME: Heieck PAGE: 23 SESS: 4 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 35
limited, nor is it dependent on any other single threshold criterion’,121 such as jurisdiction or control over a territory on which genocide is likely to occur.122 Instead, the Court determined that the scope of this duty is dependent upon a state’s ‘capacity to effectively influence’ the relevant genocidal actors, which ‘varies greatly from one State to another’.123 The ICJ emphasized that this capacity depends not only on the means at the state’s disposal, but also on ‘the geographical distance of the State concerned from the scene of events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events’.124 As a consequence, the ICJ recognized that those states with greater capacity to effectively influence must use their individual best efforts to prevent genocide. With that said, the Court also emphasized that ‘it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide’.125 Aside from being ‘generally difficult to prove’, the Court noted, ‘this is irrelevant to the breach of the obligation of the conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result – averting the commission of genocide – which the efforts of only one State were insufficient to produce’,126 In other words, in addition to requiring a state’s individual best efforts, the ICJ determined that the due diligence standard of the duty to prevent genocide, like the general due diligence standard discussed above, contemplates a duty to cooperate on the part of all states parties to the Genocide Convention, regardless of their means, to use their collective best efforts to prevent genocide as well. The Court’s adoption of the ‘capacity to effectively influence’ vis-à-vis the linkage requirement of the due diligence standard was an appropriate interpretation of the duty to prevent genocide under Article I of the Genocide Convention, because the latter, unlike the other conventions to which the Court referred in its earlier analysis on the duty to prevent in general, is not encumbered by notions of territory, jurisdiction, or
121 MILANOVIC, infra note 170, at 685 (citing the Bosnian Genocide case, at para. 430). See Bosnian Genocide case, at para. 153. 122 MILANOVIC, infra note 170, at 685–6. 123 Bosnian Genocide case, at para. 430. 124 Ibid. (emphasis added). 125 Ibid. 126 Ibid.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 23 / Date: 4/6 JOBNAME: Heieck PAGE: 24 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
36 A duty to prevent genocide
control.127 Article I provides, quite broadly, that the ‘Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’. In determining the degree of linkage required by the duty to prevent genocide in Article I, it is necessary to analyze the object and purpose of the Genocide Convention,128 because, as mentioned above, ‘[s]uch standards vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation’.129 According to the ICJ in the Reservations to Genocide Convention opinion, the object and purpose of the Genocide Convention can best be described and deter- mined as follows:
The solution of these problems must be found in the special characteristics of the Genocide Convention. The origins and character of that Convention, the objects pursued by the General Assembly and the contracting parties, the relations which exist between the provisions of the Convention, inter se, and between those provisions and these objects, furnish elements of interpretation of the will of the General Assembly and the parties. The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96(1) of the General Assembly, December 11th 1946). The first consequence arising from this conception is that the principles underlying the
127 See Convention Against Torture, at art. 2(1) (providing that ‘[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’); Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, at art. 4 (providing that ‘State Parties shall co-operate in the prevention of the crimes set forth in article 2, particularly by: (a) taking all practicable measures to prevent preparations in their respective territories for the commission of those crimes within or outside their territories; (b) exchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those crimes’); Convention on the Safety of United Nations and Associated Personnel, at art. 11 (providing, in relevant part, that ‘States Parties shall cooperate in the prevention of the crimes set out in article 9’); International Convention for the Suppression of Terrorist Bombings, at art. 15 (providing, in relevant part, that ‘States Parties shall cooperate in the prevention of the offences set forth in article 2’). 128 See CRAWFORD, supra note 106, at 82. See Bosnian Genocide preliminary objections judgment, at para. 31. 129 CRAWFORD, supra note 106, at 82.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 24 / Date: 24/5 JOBNAME: Heieck PAGE: 25 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 37
Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope. It was in fact approved on December 9th, 1948, by a resolution which was unanimously adopted by fifty-six States. The objects of such a convention must also be considered. The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality. In such a convention the con- tracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.130
This communal, as opposed to unilateral or bilateral, interest in preserv- ing the ‘high ideals’ of the Genocide Convention to protect national, ethnic, racial, and religious groups from destruction, in whole or in part, in peacetime or in war, is one of the main reasons why the ‘capacity to effectively influence’ is the appropriate consideration by which the due diligence linkage requirement must be measured. In light of the universal nature – i.e. object and purpose – of the Genocide Convention, about which the above-quoted passage describes, and of which Article I forms an integral part, it was therefore reasonable, if not required, for the ICJ to refrain from imposing traditional limitations of territory, jurisdiction, or control on the due diligence linkage requirement. In other words, it was appropriate for the ICJ to interpret Article I as requiring a ‘universal’ linkage between the state and the genocidal actors in question, one tempered only by the former’s ‘capacity to effectively influence’ the latter – wherever they may be found. It is worth noting, however, that the Court also stated that ‘[t]he State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by
130 Reservations to Genocide Convention opinion, at 23 (quoting GA Res. 96(I), at 188–9; Genocide Convention, at preamble) (emphasis added).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 25 / Date: 24/5 JOBNAME: Heieck PAGE: 26 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
38 A duty to prevent genocide
international law’.131 While it is somewhat circular to suggest that the capacity to effectively influence – the objective element of the due diligence standard – must be ‘assessed by legal criteria’, the Court’s statement that in discharging its duty to prevent genocide, a state must act ‘within the limits permitted by international law’, is downright cryptic. Some critics contend that, much like the Court’s comments with respect to Article VIII, ‘within the limits permitted by international law’ means that a state must obtain prior authorization from the Security Council before acting.132 However, there is no support for this view anywhere in either the Genocide Convention or the Bosnian Genocide case. The Court’s only guidance on the possible meaning of the vague phrase ‘within the limits permitted by international law’ appears in the following clause: ‘seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situation and persons facing the danger, or the reality, of genocide’.133 This statement seems to suggest that ‘within the limits permitted by international law’ does not refer to ‘legal limits’ stricto sensu, but to the factual circumstances by which the bearer of the duty to prevent genocide is identified – i.e. the state(s) with the necessary means, geographical proximity, and/or ‘strength of … political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events’.134 These considerations determine a state’s ‘legal position vis-à-vis the situation and persons facing the danger, or the reality, of genocide’ under the due diligence standard, which establishes the legal criteria by which a state’s duty to prevent genocide is assessed. Therefore, any interpretation that the vague ‘within the limits permitted by international law’ somehow specifically equates to ‘prior authorization by the Security Council’ is untenable. Furthermore, if the ICJ wanted to subordinate the duty to prevent genocide to a conventional or customary rule of international law, it
131 Bosnian Genocide case, at para. 430 (emphasis added). The only other case in which the phrase ‘within the limits permitted by law’ is referenced is the Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, P.C.I.J. Reports 1923, Series B, No. 4, p. 23 (noting that ‘[f]rom one point of view, it might well be said that the jurisdiction of a State is exclusive within the limits fixed by international law – using this expression in its wider sense, that is to say, embracing both customary law and general as well as particular treaty law’). 132 See MILANOVIC, infra note 170, at 687 (opining that ‘within the limits permitted by international law’ means that states may not engage in unilateral (i.e. unauthorized) humanitarian intervention in discharging their duty to prevent genocide). 133 Bosnian Genocide case, at para. 430 (emphasis added). 134 Ibid.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 26 / Date: 24/5 JOBNAME: Heieck PAGE: 27 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 39
could have expressly done so. For example, in the Case Concerning the Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda) (hereinafter the Rwanda case),135 the Court expressly stated that, even though the prohibition of genocide was ‘assuredly’ a norm of jus cogens, the duty to punish perpetrators of genocide was insufficient to confer jurisdiction on the Court, which was ‘always based on the consent of the parties’.136 While the Court’s holding in the Rwanda case is highly questionable,137 it nevertheless demonstrates a prime example of the Court expressly subordinating one norm – the substantive norm of the duty to punish genocide – to another norm – the procedural norm of the Court’s consent-based jurisdiction. The fact that the Court did not make a similar express pronouncement in the Bosnian Genocide case, with respect to a rule as ‘normative and compelling’ as the duty to prevent genocide, is quite telling, and arguably supports the opposite position from that which is espoused by the aforementioned critics.138 Therefore, the ICJ correctly determined that the duty to prevent genocide necessitated the ‘capacity to effectively influence’, rather than considerations related to territory, jurisdiction, or control, in order to satisfy the due diligence linkage requirement. As applied to the facts of the case, the ICJ held that this linkage requirement of the due diligence standard was satisfied because Serbia had the capacity to effectively influence the VRS, the génocidaires of Srebrenica, ‘unlike that of any of the other States parties to the Genocide Convention’, due to not only Serbia’s close proximity to the Srebrenica enclave, but also Belgrade’s strong political, military, and financial links with the authorities and armed forces of the Republika Srpska.139 In support of its conclusion vis-à-vis Serbia’s strong political and military links with the Republika Srpska and the VRS, the ICJ observed that, upon the break-up of the Socialist Federal Republic of Yugoslavia (SFRY) in 1992, the Yugoslav Peoples’ Army (JNA), the ethnically heterogeneous army of the SFRY, was reorganized in accordance with
135 Rwanda case, at para. 64. 136 Ibid. 137 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) (New Application: 2002), Jurisdiction and Admissibil- ity, Judgment, I.C.J. Reports 2006, p. 55 (Dissenting Opinion of Judge Koroma), at passim. 138 Bosnian Genocide case, at para. 427. 139 Ibid. at paras. 237–41, 388, 394, 434, 435. See Prosecutor v. Tadic´ (ICTY-IT-94-1-T), Judgment, 7.5.1999 [hereinafter Tadic´ case], at para. 114.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 27 / Date: 24/5 JOBNAME: Heieck PAGE: 28 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
40 A duty to prevent genocide
Belgrade’s political goals of establishing a ‘Greater Serbia’.140 According to the Court, on ‘8 May 1992, all JNA troops who were not of Bosnian origin were withdrawn from Bosnia-Herzegovina. However, JNA troops of Bosnian Serb origin who were serving in Bosnia and Herzegovina were transformed into, or joined, the army of the Republika Srpska (the VRS), which was established on 12 May 1992, or the VRS Territorial Defence [force]’.141 The ICJ further found that ‘Bosnian Serb soldiers serving in JNA units elsewhere were transferred to Bosnia and Herze- govina and subsequently joined the VRS’.142 According to the Trial Chamber in the Tadic´ case, which the ICJ cited with approval in the Bosnian Genocide case, this new, ethnically homogenous (i.e. Serbian) army in Bosnia and Herzegovina ‘thus inherited both officers and men from the JNA and also substantial arms and equipment, including over 300 tanks, 800 armoured personnel carriers and over 800 pieces of heavy artillery’.143 The Trial Chamber further noted, again with the approval of the ICJ, that the ‘remainder of the former JNA was to become the army of the new Federal Republic of Yugoslavia (Serbia and Montenegro) and was to be known as the VJ’.144 After this reorganization was complete, ‘from 1993 onwards, around 1,800 VRS officers were “administered” by the 30th Personnel Centre of the VJ in Belgrade; this meant that matters like their payment, promotions, pensions, etc., were handled, not by the Republika Srpska, but by the army of [Serbia]’.145 In addition, ‘Belgrade actively supplied the VRS with arms and equipment throughout the war in Bosnia and Herzegovina’, including during the time of the Srebrenica Massacre.146 Based on the evidence submitted in the Tadic´ case, ‘90 percent of the material needs of the VRS were supplied by Belgrade’.147 In adopting this figure in its own judgment, the ICJ referenced a ‘“comprehensive review” given by General Mladic´[,] [the then Chief of Staff of the VRS,] at the Bosnian Serb Assembly on 16 April 1995’, in which Mladic´ admitted that ‘42.2 per cent of VRS supplies of infantry
140 Bosnian Genocide case, at para. 237. 141 Ibid. at para. 238. 142 Ibid. 143 Ibid. (quoting Tadic´ case, at para. 114). See also Bosnian Genocide case, at para. 239. 144 Bosnian Genocide case, at para. 238 (citing Tadic´ case, at para. 114). 145 Ibid. at para. 238. See also ibid. at para. 388. 146 Ibid. at para. 239. 147 Ibid.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 28 / Date: 24/5 JOBNAME: Heieck PAGE: 29 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 41
ammunition were inherited from the former JNA and 47 per cent of VRS requirements were supplied by the VJ’.148 In addition to the political and military ties between Serbia and the Republika Srpska, the ICJ addressed the financial support the former provided the latter throughout the course of the war.149 According to the Court, ‘the economies of the FRY, the Republika Srpska, and the Republika Srpska Krajina [Croatia] were integrated through the creation of a single economic entity, thus enabling the FRY Government to finance the armies of the two other bodies in addition to its own’.150 To accomplish this task, ‘the National Banks of the Republika Srpska and of the Republika Srpska Krajina were set up as under the control of, and directly subordinate to, the National Bank of Yugoslavia in Belgrade’.151 As a product of this reorganization, the ICJ noted that the budgetary demands of all three authorities were met as follows: ‘The national budget of the FRY was to a large extent financed through primary issues from the National Bank of Yugoslavia … through creating money by providing credit to the FRY budget[.] The same was the case for the budgets of the Republika Srpska and the Republika Srpska Krajina, which … had virtually no independent sources of income.’152 As a result, the ‘National Bank of Yugoslavia was making available funds (80 per cent of those available from primary issues) for “special purposes”, that is to say “to avoid the adverse effects of war on the economy of the Serbian Republic of Bosnia and Herzegovina”.’153 In light of these facts, the ‘Court [found] it established that [Serbia] was thus making its considerable military and financial support available to the Republika Srpska, and had it withdrawn that support, this would have greatly constrained the options that were available to the Republika Srpska authorities.’154 As a consequence, the ICJ determined that due to Serbia’s strong political, military, and financial ties to the Republika Srpska and the VRS, Serbia had the capacity to effectively influence the genocidal actors at Srebrenica ‘unlike that of any of the other States parties to the Genocide Convention’.155
148 Ibid. (citing the testimony of General Dannatt, one of the experts called by Bosnia and Herzegovina during the hearings in the Bosnian Genocide case). 149 Ibid. at para. 240. 150 Ibid. 151 Ibid. 152 Ibid. 153 Ibid. 154 Ibid. at para. 241 (emphasis added). 155 Ibid. at para. 434.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 29 / Date: 24/5 JOBNAME: Heieck PAGE: 30 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
42 A duty to prevent genocide
Subjective element: knew or should have known With respect to the subjective knowledge requirement, the ICJ noted, as mentioned above, that ‘a State’s obligation to prevent, and corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’156 The Court explained that this awareness, which triggers a state’s positive duty to act, may result from actual157 or constructive158 knowledge of the relevant events, which should be interpreted in light of any history of hatred, especially of genocide, between the relevant groups. The Court then observed that, if a state has or should have had this knowledge, and ‘has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means’ to prevent the genocide.159 As applied to the facts of the case, the ICJ held that this element of the due diligence standard was satisfied because Serbia had both actual and constructive knowledge of the existence of a serious risk of genocide at Srebrenica.160 Regarding Serbia’s actual knowledge of these events, the ICJ cited the ‘Fall of Srebrenica’ Report from the Secretary-General to the General Assembly, which, inter alia, ‘recount[ed] the visit to Bel- grade on 14 July 1995 of the European Union negotiator Mr. Bildt to meet with [Serbian President Slobodan] Miloševic´’.161 The Report noted that ‘Mr. Bildt, in substance, informed Mr. Miloševic´ of his serious concern [regarding Srebrenica] and “pressed the President to arrange immediate access for the UNHCR to assist the people of Srebrenica, and for the ICRC to start to register those who were being treated by the BSA [Bosnian Serb Army or VRS] as prisoners of war”’.162 As additional support, the Court cited the testimony of General Wesley Clark in the Miloševic´ case,163 in which General Clark not only recounted the substance of his conversation with President Miloševic´ about the dire
156 Ibid. at para. 432. 157 Ibid. at paras. 283, 285, 436 (relying on evidence in the Secretary- General’s Report, ‘The Fall of Srebrenica’). 158 Ibid. at para. 410 (relying on evidence which is ‘in the public domain and readily accessible’). 159 Ibid. at para. 431 (emphasis added). 160 Bosnian Genocide case, at paras. 228–30, 436–8. 161 Ibid. For a more comprehensive discussion of this important report, see Bosnian Genocide case, at paras. 228–30. 162 Ibid. 163 Ibid. at para. 437 (citing Prosecutor v. Miloševic´ (ICTY-IT-02-54-T), Decision on Motion for Judgment of Acquittal, 16.6.2004, at para. 240).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 30 / Date: 24/5 JOBNAME: Heieck PAGE: 31 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 43
situation in the Srebrenica enclave,164 but also opined ‘that the circum- stances indicated that Miloševic´ had foreknowledge of [VRS General Ratko Mladic´’s plans to carry out] “a military operation combined with a massacre” [at Srebrenica]’.165 Regarding Serbia’s constructive knowledge of these events, the Court noted that ‘the FRY leadership, and President Miloševic´ above all, were fully aware of the climate of deep-seated hatred between the Bosnian Serbs and the Muslims in the Srebrenica region’.166 Based on Serbia’s actual and constructive knowledge of these events, the ICJ concluded that ‘given all the international concern about what looked likely to happen at Srebrenica, given Miloševic´’s own observations to Mladic´, which made it clear that the dangers were known and that these dangers seemed to be of an order that could suggest intent to commit genocide, unless brought under control, it must have been clear that there was a serious risk of genocide in Srebrenica’.167 As a result, the Court ultimately held that Serbia’s positive duty to prevent the genocide in the Srebrenica enclave was triggered prior to the Srebrenica Massacre, because the objective and subjective elements of the due diligence standard were satisfied.
The presence of the objective and subjective elements triggers the duty to prevent genocide At the outset of its analysis, the ICJ noted that ‘it is clear that the obligation [to prevent genocide] is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide’.168 Instead, the Court noted that ‘the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible’.169 However, ‘[a] State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing genocide’.170 In this way, the ICJ
164 Ibid. (citing Prosecutor v. Miloševic´ (ICTY-IT-02-54-T), Transcript of Testimony of General Wesley Clark, 16.12.2003, at pp. 30494–5). 165 Ibid. (citing Prosecutor v. Miloševic´ (ICTY-IT-02-54-T), Transcript of Testimony of General Wesley Clark, 16.12.2003, at p. 30497). 166 Ibid. at para. 438. 167 Ibid. (emphasis added). 168 Ibid. at para. 430. 169 Ibid. 170 Ibid. See M. MILANOVIC, ‘State Responsibility for Genocide: A Follow- Up’ (2007) 18 EJIL 669, 685.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 31 / Date: 24/5 JOBNAME: Heieck PAGE: 32 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
44 A duty to prevent genocide
concluded that the duty to prevent genocide imposes positive obligations on states to use their ‘best efforts’171 to ‘adopt and implement suitable measures to prevent genocide from being committed’.172 Because Serbia failed to do anything to prevent the Srebrenica Massacre, the Court concluded that Serbia breached its duty to prevent genocide.173
3.3.3 Breach of the due diligence standard in the Bosnian Genocide case In discussing the nature and scope of Serbia’s breach, the ICJ noted the following in paragraph 431 of the Bosnian Genocide case:
[a] State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility: “[…] 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent.
171 Bosnian Genocide case, at para. 438. See CRAWFORD, supra note 106, at 140. 172 Bosnian Genocide case, at para. 432. 173 Ibid. at para. 438.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 32 / Date: 24/5 JOBNAME: Heieck PAGE: 33 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 45
The Court continued its discussion of breach by emphasizing the following in paragraph 438:
In view of [Serbia’s] undeniable influence and of the information, voicing serious concern, in their possession, the Yugoslav federal authorities should, in the view of the Court, have made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised. The FRY leadership, and President Miloševic´ above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region. As the Court has noted in paragraph 423 above, it has not been shown that the decision to eliminate physically the whole of the adult male population of the Muslim community of Srebrenica was brought to the attention of the Belgrade authorities [which is needed for complicity in genocide]. Nevertheless, given all the international concern about what looked likely to happen at Srebrenica, given Miloševic´’s own observations to Mladic´, which made it clear that the dangers were known and that these dangers seemed to be of an order that could suggest intent to commit genocide, unless brought under control, it must have been clear that there was a serious risk of genocide in Srebrenica. Yet [Serbia] has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed. It must therefore be concluded that the organs of [Serbia] did nothing to prevent the Srebrenica massacres, claiming that they were powerless to do so, which hardly tallies with their known influence over the VRS. As indicated above, for a State to be held responsible for breaching its obligation of prevention, it does not need to be proven that the State concerned definitely had the power to prevent the genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them.
In other words, the ICJ held that Serbia breached its duty to prevent genocide based on two grounds: first, the VRS’s killing of 7000 to 8000 Bosnian Muslim men at Srebrenica amounted to genocide;174 and second, Serbia’s failure to take any measures whatsoever to prevent the VRS from committing the genocide at Srebrenica fell below the standard of care required by the due diligence standard.175 In so holding, the ICJ, in effect, bridged the ‘two broad principles’ of state respons- ibility in international law. According to Jan Arno Hessbruegge, these broad principles consist of: (1) ‘responsibility by attribution’; and (2) ‘responsibility due to failure to exercise due diligence’.176 ‘Respons- ibility by attribution’ refers to ARSIWA, which establishes the general,
174 Ibid. at paras. 278–97, 425–38, esp. paras. 297, 431, 433. 175 Ibid. 176 HESSBRUEGGE, supra note 83, at 268–9.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 33 / Date: 24/5 JOBNAME: Heieck PAGE: 34 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
46 A duty to prevent genocide
or default,177 regime of secondary rules that determines (a) when a state’s de jure or de facto organs or agents’ acts or omissions may be attributed to the state,178 and (b) when those acts or omissions breach a primary rule and thus result in international responsibility for that state.179 ‘Responsibility due to failure to exercise due diligence’, on the other hand, refers to the duty to prevent a given activity, which may, along with its due diligence standard, establish a specific regime of primary rules that determines (a) when a state is linked to private actors who are engaged in a prohibited activity, and (b) when, as a result of this linkage, the state’s failure to use its ‘best efforts’ to prevent the private actors’ prohibited activity itself amounts to a breach by, and results in the responsibility of, the state. The rationale of this ‘due diligence responsibility’ is to ensure that no state escapes its obligations under international law by filling the lacuna left in ARSIWA vis-à-vis state responsibility for ‘private’ actions.180 As evidenced from the first excerpt quoted above, the Court’s first ground for a finding of breach was based on the secondary level of obligations expressed in Article 14(3) of ARSIWA, which provides that the ‘breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with the obligation’.181 The Court’s reference to Article 14(3) was logical given that it would have been absurd to hold a state legally responsible for failing to prevent an event that had never occurred. The second ground for a finding of breach, which is evidenced in the second excerpt quoted above, was based however on the primary level of obligations expressed in the due diligence standard of the duty to prevent genocide, which provides that every state which has the aforementioned means, influence, and knowledge, but which fails to do everything within its power to prevent the genocide in question, breaches its duty and incurs responsibility.182 While the ICJ coupled these two reasons, and hence
177 CRAWFORD, supra note 106, at 76; KEES, supra note 95, at paras. 10, 16, 17. 178 ARSIWA, at ch. II. 179 Ibid. at ch. III. 180 KEES, supra note 95, at para. 16. But see BEN-NAFTALI, supra note 5, at 40 (opining that ‘[t]he Court thus adopted a “due diligence” approach which coheres with the commentary on the International Law Commission (ILC) Articles on State Responsibility (citing Bosnian Genocide case, at para. 430)). 181 Bosnian Genocide case, at para. 431 (quoting ARSIWA, at art. 14(3)). 182 Ibid. at para. 438.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 34 / Date: 24/5 JOBNAME: Heieck PAGE: 35 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 47
these ‘two broad principles’ of state responsibility, together in its breach analysis, the Court’s ultimate holding demonstrates that it relied princi- pally upon ‘due diligence responsibility’ when it concluded that Serbia had breached its duty to prevent genocide.183
3.3.4 Failure to prevent genocide versus complicity in genocide in the Bosnian Genocide case Given the extent of Serbia’s influence over and knowledge of the Srebrenica genocide, questions abound as to why Serbia was not held liable for complicity in genocide under Article III(e) of the Genocide Convention.184 While complicity in genocide is not the focus of this book, it is nevertheless worthwhile to briefly review the ICJ’s pronounce- ments on this issue. According to the Court in the Bosnian Genocide case, complicity in genocide under Article III(e) is distinguishable from the failure to prevent genocide under Article I for two reasons that ‘are so significant as to make it impossible to treat the two types of violation in the same way’:
In the first place, as noted above, complicity always requires that some positive action has been taken to furnish aid or assistance to the perpetrators of the genocide, while a violation of the obligation to prevent results from mere failure to adopt and implement suitable measures to prevent genocide from being committed. In other words, while complicity results from commis- sion, violation of the obligation to prevent results from omission; this is merely the reflection of the notion that the ban on genocide and the other acts listed in Article III, including complicity, places States under a negative obligation, the obligation not to commit the prohibited acts, while the duty to prevent places States under positive obligations, to do their best to ensure that such acts do not occur. In the second place, as also noted above, there cannot be a finding of complicity against a State unless at the least its organs were aware that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the criminal acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts. In other words, an accomplice must have given support in perpetrating the genocide with full knowledge of the facts. By contrast, a State may be found to have violated its obligation to prevent even though it had no certainty, at the time
183 Ibid. 184 Article III of the Genocide Convention provides that: ‘[t]he 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; [and] (e) complicity in genocide.’
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 35 / Date: 24/5 JOBNAME: Heieck PAGE: 36 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
48 A duty to prevent genocide
when it should have acted, but failed to do so, that genocide was about to be committed or was under way; for it to incur responsibility on this basis it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed.185
The ICJ’s distinction between complicity in genocide under Article III(e) and failure to prevent genocide under Article I has been highly criticized in the literature.186 For example, Orna Ben-Naftali observes that ‘the distinction between “complicity” and “failure to prevent” is problematic: the line drawn between the awareness that genocide was taking place or was about to take place (required for complicity) and the awareness that there is a serious risk of genocide (required for the obligation to prevent), is far too thin’.187 While it is hard to argue with Ben-Naftali’s obser- vation, the ICJ effectively held that the mental element for complicity required ‘full knowledge of the facts’, whereas the mental element for the failure to prevent, as a result of the due diligence standard, does not require such ‘full certainty’.188 To use a criminal law analogy, the ICJ was, in effect, saying that if the specific intent for complicity was left wanting, the wrongful state could nevertheless be held liable for a ‘lesser included offense’ – i.e. the failure to prevent genocide. In other words, if, under these circumstances, a state lacks the knowledge requirement under Article 16 of ARSIWA,189 it would nonetheless satisfy the knowledge requirement under Article 14(3) and ‘due diligence responsibility’.
3.4 Concluding Remarks
As a result of the foregoing analysis, the duty to prevent genocide, as determined by its due diligence standard, requires, as a matter of law, that all states parties to the Genocide Convention must do everything within their individual and collective power to prevent genocide provided they have the requisite capacity to effectively influence the relevant genocidal actors and the knowledge of the existence of a serious risk that genocide
185 Bosnian Genocide case, at para. 432. 186 See, e.g.,BEN-NAFTALI, supra note 5, at 41; MILANOVIC, supra note 170, at 680–4. 187 BEN-NAFTALI, supra note 5, at 41. 188 Bosnian Genocide case, at para. 432. 189 Article 16 of ARSIWA provides that ‘[a] State which aids or assists another State in the commission of an international wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) that act would be internationally wrongful if committed by that State’.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 36 / Date: 24/5 JOBNAME: Heieck PAGE: 37 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 49
might occur in a given territory. The next section will demonstrate how this legal requirement applies to all states parties to the Genocide Convention, with a particular focus on China, France, Russia, the UK, and the US. Specifically, the next section will show how the due diligence standard of the duty to prevent genocide both compels and constrains these five states when they are acting as members of the P5 and when they are considering, negotiating, proposing, and ultimately voting upon draft Security Council resolutions aimed at preventing or suppressing an imminent or ongoing genocide. In addition, the next section will demonstrate how the duty to prevent genocide’s concomitant duty to cooperate affects these ‘great powers’ of the international order when they are acting outside of the Security Council context.
4 THE SCOPE AND BREACH OF THE P5’S DUTY TO PREVENT GENOCIDE UNDER THE GENOCIDE CONVENTION
4.1 Legal Effects in General
Before applying the aforementioned law to China, France, Russia, the UK, and the US when they are acting within and without the Security Council, it is important to discuss three distinct legal aspects of the duty to prevent genocide and its concomitant due diligence standard. These legal aspects are the duty to cooperate, the principle of common but differentiated responsibilities, and the imminence requirement coupled with the precautionary principle. In addition, it is vital to underscore the main limitation to the operationalization of the duty to prevent genocide: i.e. the specific intent of the genocidal actors.
4.1.1 The duty to cooperate As discussed above, the ICJ determined in the Bosnian Genocide case that ‘it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide’.190 According to the ICJ, the irrelevance of such a defense to breach was due to the duty to cooperate incumbent upon all states parties
190 Ibid. at para. 430.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 37 / Date: 24/5 JOBNAME: Heieck PAGE: 38 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
50 A duty to prevent genocide
to the Genocide Convention which satisfy the elements of the afore- mentioned due diligence standard.191 The ICJ’s rationale for such a duty to cooperate was well founded in customary and conventional law, as well as the jurisprudence of the Court. For example, in the 1946 General Assembly Resolution 96(I), the UN member states unanimously192 ‘[a]ffirm[ed] that genocide is a crime under international law’ and ‘[r]ecommend[ed] that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide’.193 In addition, in the Preamble to the 1948 Genocide Convention, the states parties noted that ‘in order to liberate mankind from [the] odious scourge [of genocide], international co-operation is required’.194 Moreover, in the 1951 Reservations to Genocide Convention advisory opinion,195 the ICJ observed ‘two conse- quences’ emanating from Resolution 96(I) and the Genocide Convention: first, that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation’;196 and second, that ‘the condemnation of genocide and … the co-operation required “in order to liberate mankind from such an odious scourge”’ in the Convention has a ‘universal character’.197 Lastly, in the 2001 Articles on State Responsibility, the International Law Commission (ILC) noted that ‘States shall cooperate to bring to an end through lawful means any serious breach [by a state of an obligation arising under a peremptory norm of general international law]’,198 such as the prohibition of genocide.199 Thus, the ICJ’s determin- ation in the Bosnian Genocide case that the due diligence standard imposed a duty to cooperate on all states parties to the Genocide Convention as part of the scope of the duty to prevent genocide under Article I was amply supported under conventional and customary law.200
191 Ibid. 192 SCHABAS, supra note 4, at 55–6. 193 GA Res. 96(I), at 188–9. 194 Genocide Convention, at preamble. 195 Reservations to Genocide Convention opinion, at 23. 196 Ibid. 197 Ibid. 198 ARSIWA, at art. 41(1) (quoting ARSIWA, at art. 40(1)). 199 See Rwanda case, at para. 64. 200 The duty to cooperate vis-à-vis the duty to prevent genocide is further supported at the level of peremptory law. See CRAWFORD, supra note 106, at 244 (n. 675) (quoting ILCYB 1966 (II), at 248 (noting that ‘a treaty contemplating or conniving at the commission of … genocide, in the suppression of which every
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 38 / Date: 24/5 JOBNAME: Heieck PAGE: 39 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 51
4.1.2 The principle of common but differentiated responsibilities In addition, the ICJ noted that a state’s capacity to effectively influence genocidal actors, and hence positive obligation to prevent genocide in a given territory, ‘varies greatly from one State to another’.201 In so noting, the ICJ effectively incorporated the principle of ‘common but differenti- ated responsibilities’ into the aforementioned due diligence standard. At its most basic level, the principle of common but differentiated respons- ibilities provides that ‘the more a state can do, the more a state must do’.202 In the context of preventing genocide, Marko Milanovic has observed that this principle requires different levels of cooperation depending on the relative power of the state in question:
A minor state could probably be considered to have only the obligation to cooperate with other states, most of all diplomatically, in attempting to put pressure on a genocidal actor. This obligation would be similar in scope to the ones proposed by the ILC in Article 41 of its Articles on State Responsibility, regulating the aggravated regime of state responsibility for serious breaches of peremptory norms of international law. A great power, on the other hand, would have to be much more active in order to discharge this obligation, while a state which is in one way or another directly involved in the events, for instance by proving assistance and support to the genocidal actors, as Serbia was in Bosnia, would have greater obligations yet.203
In other words, while all states parties to the Genocide Convention have a duty to cooperate in averting or stopping genocide, the ‘great powers’ of the international order – China, France, Russia, the UK, and the US – have a heightened duty to cooperate in order to satisfy the due diligence standard and to discharge their duty to prevent genocide. This heightened duty is the result of these five states’ more extensive means, capacity to effectively influence, and access to timely information, which, in turn, is the product of not only their individual power and resources, but also their privileged legal position within the Security Council as veto- wielding members of the P5.
State is called upon to co-operate’ violates jus cogens)). See generally Chapter 4 for a more in-depth discussion. 201 Bosnian Genocide case, at para. 430. 202 MILANOVIC, supra note 170, at 686. 203 Ibid. (citing ARSIWA, at art. 41). See ibid. at 686 (n. 86) (noting that ‘Art. 41(1) provides that ‘[s]tates shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40’, while Art. 41(2) stipulates that ‘[n]o State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation’).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 39 / Date: 24/7 JOBNAME: Heieck PAGE: 40 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
52 A duty to prevent genocide
4.1.3 The imminence requirement coupled with the precautionary principle Lastly, the ICJ noted that a state’s duty to prevent genocide is triggered the moment it knows or should have known of the ‘existence of a serious risk that genocide will be committed’.204 A ‘serious risk of genocide’ arises when genocidal actors are either ‘suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis)’ to commit genocide.205 ‘From that moment onwards’,206 according to the Court, the state has a positive duty to use everything within its means ‘likely to have a deterrent effect’ on the genocidal actors,207 even if the genocide ‘could not be foreseen with certainty’.208 In so holding, the ICJ adopted a special ‘imminence’ requirement coupled with the ‘precaution- ary principle’209 in the aforementioned due diligence standard. This imminence requirement, which demands only that the risk of genocide be ‘serious’, appears to be not nearly as strict as the imminence requirement for anticipatory self-defense, which demands that the threat of attack be ‘instant, overwhelming, and leaving no choice of means, and no moment of deliberation’.210 However, this imminence requirement also appears to be significantly narrower than the policy of prevention envisioned by the ‘responsibility to protect’ doctrine, which seeks to prevent genocide by addressing its ‘root causes’ in a comprehensive manner.211 As such, the
204 Bosnian Genocide case, at para. 430. 205 Ibid. at para. 431. It is interesting to note that, during the drafting of the Genocide Convention, ‘preparatory acts’ as such were excluded from ‘acts of genocide’ under Article III. See SCHABAS, supra note 4, at 83 (quoting UN Doc.A/C.6/215/Rev.1) (noting that ‘the Soviet delegation made a similar, un- successful effort to enlarge the scope of attempted genocide with an amendment concerning “preparatory acts”, which encompassed “studies and research for the purposes of developing the technique of genocide; setting up of installations, manufacturing, obtaining, possessing or supplying articles or substances with the knowledge that they are intended for genocide; issuing instructions or orders and distributing tasks with a view of committing genocide’”). 206 Bosnian Genocide case, at para. 431. 207 Ibid. 208 Ibid. at para. 438. 209 See C. REDGWELL, ‘International Environmental Law’ in M.D. EVANS (ed.), International Law, 4th edn., Oxford University Press, Oxford 2014, 688. 210 R.Y. JENNINGS, ‘The Caroline and McLeod Cases’ (1938) 32 AJIL (American Journal of International Law) 82, 85. 211 See INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVER- EIGNTY, The Responsibility to Protect, International Development Research Centre, Ottawa 2001 [hereinafter ICISS Report], at xi, 19–27, 44; Implementing the Responsibility to Protect, UN Doc.A/63/677 (12.1.2009), at paras. 20–22;
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 40 / Date: 24/7 JOBNAME: Heieck PAGE: 41 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 53
requirement of ‘the existence of serious risk that genocide will be committed’ provides an intermediate standard of imminence by which any actions taken to prevent genocide must be judged. Nevertheless, when determining whether genocide is ‘imminent’ under this standard, the ‘precautionary principle’ requires that a state must discharge its positive duty to prevent as circumscribed above even if the state lacks ‘full certainty’ that genocide will occur. As the ICJ noted in the Bosnian Genocide case, in addition to being ‘generally difficult to prove’,212 requiring such a high degree of knowledge ‘would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of [genocide]’.213 Therefore, if private actors are ‘suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis)’,214 then all states parties to the Genocide Convention, in particular the P5, must do everything within their collect- ive and individual power to prevent the genocide. As will be noted in greater detail below, this means acting collectively and individually to prevent the genocide before it has begun, by withholding economic and military aid and assistance from the genocidal actors, and, if necessary, by unilaterally intervening for human protection purposes.
4.1.4 The limitation to the operationalization of the duty to prevent genocide: specific intent The trigger for such collective and individual action is, as noted above, whether a state knew or should have known that there existed a serious risk that genocide would be committed by those actors over whom the state had the capacity to effectively influence. The touchstone for determining whether a serious risk exists is whether the known dangers seem to be of an order that could suggest specific intent to commit genocide.215 As the Trial Chamber in the Mladic´ case recently held, ‘where direct evidence of specific intent [to commit genocide] is absent, the specific intent may be inferred from the surrounding facts and
Responsibility to Protect: Timely and Decisive Response, UN Doc.A/66/874–S/ 2012/578 (25.7.2012), at para. 27; Responsibility to Protect: State Responsibility and Prevention, UN Doc.A/67/929–S/2013/399 (9.7.2013), at paras. 18, 31, 42, 61. See also S. ZIFCAK, ‘The Responsibility to Protect’ in M.D. EVANS (ed.), International Law, 4th edn., Oxford University Press, Oxford 2014, 509. 212 Bosnian Genocide case, at para. 430. 213 Ibid. at para. 431. 214 Ibid. 215 Bosnian Genocide case, at para. 438 (emphasis added).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 41 / Date: 24/5 JOBNAME: Heieck PAGE: 42 SESS: 7 OUTPUT: Wed Aug 1 09:24:06 2018
54 A duty to prevent genocide
circumstances’.216 These facts and circumstances include: (1) ‘the general context’; (2) ‘the perpetration of other culpable acts systematically directed against the same group’; (3) ‘the scale of the atrocities commit- ted’; (4) ‘the systematic targeting of victims on account of their member- ship in a particular group’; (5) ‘proof of the mental state with respect to the commission of the underlying acts’; (6) ‘the repetition of destructive and discriminatory acts’; or (7) ‘the existence of a plan or policy’.217 While all seven factors are relevant to punishing the commission of genocide ex post facto, the first and last of these elements are most important to the prevention of genocide ex ante. The general context of genocide may become evident based on actual or constructive knowledge of the events.218 In the Bosnian Genocide case, the ICJ concluded that Serbian President Slobodan Miloševic´ had actual knowledge of the serious risk of genocide in Srebrenica based on, inter alia, his conversations with negotiator Carl Bildt and General Wesley Clark.219 The Court also found that President Miloševic´ had constructive knowledge of the serious risk of genocide in light of the well-known climate of deep-seated hatred between the Bosnian Serbs and Muslims in the Srebrenica region.220 Based on Serbia’s actual and constructive knowledge of these events, the ICJ concluded that ‘given all the international concern about what looked likely to happen at Srebrenica, given Miloševic´’s own observations to Mladic´, which made it clear that the dangers were known and that these dangers seemed to be of an order that could suggest intent to commit genocide, unless brought under control, it must have been clear that there was a serious risk of genocide in Srebrenica’.221 The ICJ did not limit its observations to the general context, however; the Court also discussed the role that a plan or policy played in evidencing specific intent to commit genocide.222 In discussing the ICTY’s findings in the Krstic´ case, the ICJ noted that the Trial Chamber was convinced of the existence of specific intent to commit genocide by
216 Prosecutor v. Mladic´ (ICTY-IT-09-92-T), Judgment, 22.11.2017, at para. 3457. 217 Ibid. 218 Bosnian Genocide case, at paras. 283, 285, 410, 436. 219 Ibid. at paras. 228–30, 436–8. 220 Ibid. at para. 438. 221 Ibid. 222 See also W. SCHABAS, ‘State Policy as an Element of International Crimes’ (2008) 98 JCLC (Journal of Criminal Law and Criminology) 953, at 972–3.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 42 / Date: 26/7 JOBNAME: Heieck PAGE: 43 SESS: 4 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 55
the evidence placed before it. Under the heading ‘A Plan to Execute the Bosnian Muslim Men of Srebrenica’, the Chamber ‘finds that, following the takeover of Srebrenica in July 1995, the Bosnian Serbs devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the enclave’.223 The Trial Chamber noted that evidence of such a plan or policy may be reflected in ‘the number and nature of the forces involved, the standard- ized coded language used by the units in communicating information about the killings, the scale of the executions, [and] the invariability of the killing methods applied’.224 Thus, in addition to the general context, the existence of a plan or policy serves as a way of determining whether the facts and circumstances suggest specific intent to commit genocide, and with it, the existence of a serious risk of its occurrence.225 It is important to note that, while such a plan or policy is not necessary for a conviction of genocide (in so far as it is not formally enshrined in the Rome Statute or Elements of Crimes),226 it is nevertheless important to satisfying the knowledge element of the duty to prevent genocide.227 The crime of genocide is collective in nature; as such, its commission entails the use of collective means, such as state or organizational institutions, resources, and personnel. In many instances, the use of such means entails the existence of some plan or policy at the state or organizational level. In these circumstances, the existence of a plan or policy is necessary not for proving the mens rea of the crime of genocide, but for establishing the knowledge element of the duty to prevent. If the knowledge element is not satisfied, then the duty to prevent genocide is not triggered. Therefore, whether proven through the general context or a
223 Bosnian Genocide case, at para. 292 (quoting Krstic´ case, at paras. 87). For a discussion of the interpretation of the ‘in part’ language in Article II of the Genocide Convention, see Krstic´ case at para. 590. For a discussion of the important role of the totality of the circumstances in determining the existence of specific intent, see ibid. at paras. 594–8. 224 Ibid. at para. 572 (citing Prosecutor v. Jelisic´ (ICTY-IT-95-10-A), Judg- ment, 5.7.2001, at paras. 85–7). 225 See SCHABAS, supra note 222, at 972–3. 226 Rome Statute of the International Criminal Court (1998), 2187 UNTS 3 (2002) [hereinafter Rome Statute]. Elements of Crimes of the International Criminal Court, U.N. Doc. PCNICC/2000/1/Add.2 (2000), at art. 6. 227 Schabas also correctly notes that, ‘in effect the ICJ analyzes specific intent in terms of the existence of a plan, but in criminal law, this is not such a straightforward matter. Several individuals may participate in a common plan, but this does not necessarily mean that they all share the same specific intent.’ See ibid. at 969.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 43 / Date: 4/6 JOBNAME: Heieck PAGE: 44 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
56 A duty to prevent genocide
plan or policy, specific intent to commit genocide is essential to determining whether a duty exists to prevent it.
4.1.5 Concluding remarks As the next section will demonstrate, these general legal effects of the duty to prevent genocide and its concomitant due diligence standard, along with the specific legal effects as expressed in the Bosnian Geno- cide case, have a profound legal impact on China, France, Russia, the UK, and the US when they are acting within and without the Security Council in the face of an imminent or ongoing genocide.
4.2 Legal Effects on China, France, Russia, the UK, and the US
4.2.1 General remarks The responsibility to protect doctrine: principles for military intervention In order to determine the legal effects on China, France, Russia, the UK, and the US, when they are acting within and without the Security Council to discharge their duty to prevent genocide, it is necessary to develop an analytical framework in order to delimit the hierarchy of appropriate collective and individual action. At first glance, the ‘respons- ibility to protect’ doctrine appears helpful in this regard. In its ‘principles of military intervention’, the International Commission on Intervention and State Sovereignty report on ‘The Responsibility to Protect’ doctrine (ICISS Report) provides the following:
A. There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has. B. Security Council authorization should in all cases be sought prior to any military intervention action being carried out. Those calling for an intervention should formally request such authorization, or have the Council raise the matter on its own initiative, or have the Secretary- General raise it under Article 99 of the UN Charter. C. The Security Council should deal promptly with any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing. It should in this context seek adequate verification of facts or conditions on the ground that might support a military interven- tion. D. The Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 44 / Date: 24/5 JOBNAME: Heieck PAGE: 45 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 57
involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support. E. If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative options are: I. consideration of the matter by the General Assembly in Emergency Special Session under the ‘Uniting for Peace’ procedure; and II. action within area of jurisdiction by regional or sub-regional organ- izations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council. F. The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation – and that the stature and credibility of the United Nations may suffer thereby.228
Notwithstanding the indisputable value of the R2P doctrine in reviving the debate on the responsibility of states to protect their populations from mass atrocity crimes and in sanctioning the use of the veto by the P5, its fundamentally political nature obscures the legal standing the duty to prevent genocide has acquired under not only conventional but also customary law (as will be demonstrated in Chapter 2). While this in itself is not problematic from a practical standpoint, it is problematic from a legal standpoint, because, by incorporating four legal norms of varying development – i.e. genocide, war crimes, crimes against humanity, and ethnic cleansing – in the same political doctrine, R2P in effect waters down the established obligations associated with genocide prevention. Moreover, even if the initial ICISS Report on R2P was legal in nature, several norms were dropped from the doctrine in subsequent develop- ments within the UN General Assembly and Security Council, such as the initiative of the ‘responsibility not to veto’ as well as the hierarchy of collective and individual action needed to prevent mass atrocities. As a result, R2P does not address the legal criteria for action both within and without the Security Council; it neither elaborates on the form in which Security Council resolutions aimed at preventing mass atrocity crimes must take, nor comments upon the limits to which states engaged in unilateral intervention must subscribe. Because these discussions are of current, fundamental concern to the international community, R2P’s shortcomings when scrutinizing the legal standing of the duty to prevent
228 ICISS Report, at xii–xiii.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 45 / Date: 24/5 JOBNAME: Heieck PAGE: 46 SESS: 4 OUTPUT: Wed Aug 1 09:24:06 2018
58 A duty to prevent genocide
genocide militate against its use. Therefore, it is necessary to look elsewhere in order to develop an analytical framework for determining the hierarchy of appropriate collective and individual action in preventing genocide.
Justice Robert H. Jackson’s three-tiered approach to the exercise of executive authority as adapted to the international plane Helpful in this regard is Justice Robert H. Jackson’s three-tiered approach to the exercise of executive authority in times of war from the US Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure case).229 As a preliminary matter, the reliance on a US case with respect to a matter of international concern as important as genocide prevention must be explained. First, the Jackson test is a valid test that provides an interesting legal framework to discuss these issues. As noted above, this framework was initially discussed in the original R2P ICISS Report, but was later dropped. The adaption of the Jackson test to the international plane resurrects this discussion in the framework of a legal test, as opposed to a political doctrine. Second, because this book addresses the responsibility of those states which have greater capacity to effectively influence genocidal actors, it only makes sense to understand the duty to prevent genocide from the case law of a state which has this greater capacity. In this regard, the US is a ‘specially affected’ state (to borrow the parlance of the North Sea Continental Shelf cases).230 Reliance on US case law is therefore justified because, at present, the US is the most powerful state in the international order. As such, Justice Robert H. Jackson’s three-tiered test for determining the legality and legitimacy of executive action in the Steel Seizure case is an appropriate test for determining the hierarchy of collective and individual action in pre- venting genocide. In the Steel Seizure case, the issue before the US Supreme Court was whether President Harry Truman had the authority, based on his inherent war powers under Article II of the US Constitution, to issue an Executive Order which seized the US’s striking steel mills and which kept them operational during the Korean War.231 ‘The mill owners argue[d]’, on the one hand, ‘that the President’s order amount[ed] to law-making, a legislative function which the Constitution has expressly
229 Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952) [hereinafter the Steel Seizure case]. 230 See discussion of the North Sea Continental Shelf cases in Chapter 2. 231 Ibid. at 579.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 46 / Date: 4/6 JOBNAME: Heieck PAGE: 47 SESS: 4 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 59
confided to the Congress and not the President’.232 The government argued, on the other hand, ‘that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production’ and which would therefore hurt the war effort.233 The government argued that that legal basis for President Truman’s actions was ‘that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Com- mander of Chief of the Armed Forces of the United States’ under Article II of the US Constitution.234 Justice Hugo Black, writing for the Majority, agreed with the mill owners and rejected the government’s claims. First, Justice Black noted that there were no Congressional acts that provided the President with the power to seize the steel mills.235 In fact, Justice Black emphasized that the President’s seizure was incompatible with the Selective Service Act of 1948, the Defense Production Act of 1950, and the Labor Management Relations Act of 1947.236 Second, Justice Black noted that the President’s inherent powers as the Chief Executive and Commander in Chief did not provide him with the authority to seize the steel mills.237 Regarding the former basis, Justice Black held that ‘[i]n the framework of our Constitution, the President’s power to see that the laws are faithfully executed [as the Chief Executive] refutes the idea that he is to be a lawmaker’ – a power that is limited to the Congress of the US.238 Regarding the latter basis, Justice Black held that, ‘[e]ven though [the] “theater of war” [is] an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief … has the ultimate power … to take possession of private property in order to keep labor disputes from stopping produc- tion’.239 According to Justice Black, ‘[t]his is a job for the Nation’s lawmakers, not for its military authorities’.240 As a result, Justice Black
232 Ibid. at 582. 233 Ibid. 234 Ibid. 235 Ibid. at 585–7. 236 Ibid. at 586 (citing the Selective Service Act of 1948, 62 Stat. 604, 625–7, 50 U.S.C.App. (Supp. IV) § 468, 50 U.S.C.A. Appendix, § 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132, 50 U.S.C.A. Appendix, § 2081; the Labor Management Relations Act, 1947, 61 Stat. 136, 152–6, 29 U.S.C. (Supp. IV) §§ 141, 171–80, 29 U.S.C.A. §§ 141, 171–80). 237 Ibid. at 587–9. 238 Ibid. at 587. 239 Ibid. 240 Ibid.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 47 / Date: 4/6 JOBNAME: Heieck PAGE: 48 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
60 A duty to prevent genocide
concluded that President Truman lacked the authority to unilaterally seize the nation’s steel mills.241 While Justice Black technically wrote for the Majority in the Steel Seizure case, five Justices appended concurring opinions that addressed these issues from different perspectives, thereby calling into question the controlling nature of Justice Black’s rationale. In fact, over time the concurring opinion of Justice Robert H. Jackson (who was also Chief Counsel for the US during the Nuremberg Trials) has become the standard by which most constitutional law scholars – and Congress – judge the propriety of the exercise of executive powers. Although he agreed with Justice Black’s ultimate holding, Justice Jackson devised a three-tiered approach (in descending order of legitimacy) to presidential action:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.242 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indiffer- ence or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.243 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.244
After promulgating this test, Justice Jackson concluded that President Truman’s exercise of authority in seizing the steel mills fell within the
241 Ibid. at 589. 242 Ibid. at 635. 243 Ibid. at 637. See also D. SAROOSHI, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers, Oxford University Press, Oxford 1999, 28–9 (discuss- ing the residual international policing powers of states). 244 Steel Seizure case, at 637.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 48 / Date: 24/5 JOBNAME: Heieck PAGE: 49 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 61
third category, because the Congressional acts in question were incom- patible with the President’s actions.245 Moreover, Justice Jackson held that President Truman lacked the legitimate authority under Article II of the US Constitution to engage in such actions,246 and thus concurred with the Majority opinion.247 Justice Jackson’s injection of the notion of ‘legitimacy’ into the analysis of the legality of executive action is appropriate for determining not only the constitutionality of the exercise of presidential powers under US law, but also the propriety of the use of force under international law. During ‘NATO’s bombing campaign in Kosovo in 1999[,] [m]ost western international lawyers concluded that NATO’s use of force was both morally justified and incompatible with international law’.248 NATO’s use of force was morally justified because it was aimed at preventing an impending humanitarian catastrophe in Kosovo.249 NATO’s use of force was incompatible with international law because it did not fall under one of the two exceptions to the general prohibition of the use of force under Article 2(4) of the UN Charter and customary international law; meaning, it was taken neither in self-defense under Article 51 nor pursuant to Security Council authorization under Chapter VII.250 As a consequence, several legal scholars, including Bruno Simma,251 Thomas Franck,252 and Antonio Cassese,253 concluded that NATO’s actions were ‘illegal but
245 Ibid. at 638–40 (citing the Selective Service Act of 1948, 62 Stat. 604, 625–7, 50 U.S.C.App. (Supp. IV) § 468, 50 U.S.C.A. Appendix, § 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132, 50 U.S.C.A. Appendix, § 2081; the Labor Management Relations Act, 1947, 61 Stat. 136, 152–6, 29 U.S.C. (Supp. IV) §§ 141, 171–80, 29 U.S.C.A. §§ 141, 171–80). 246 Ibid. at 640–54. 247 Ibid. at 655. 248 A. ROBERTS, ‘Legality vs Legitimacy: Can Uses of Force Be Illegal But Justified?’, at 179, 01.08.2008
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 49 / Date: 24/5 JOBNAME: Heieck PAGE: 50 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
62 A duty to prevent genocide
legitimate’,254 a position that was widely shared throughout the writings of highly qualified publicists255 and even some case law of the ICJ.256 Therefore, since the 1999 NATO intervention in Kosovo, any analysis of the legality of a particular use of force should include a discussion of the legitimacy of such action. The question that remains is how this discussion should look, in particular as it applies to the duty to prevent genocide. Bearing in mind the general legal effects of the due diligence standard of the duty to prevent genocide, along with the specific legal effects as expressed in the Bosnian Genocide case, Justice Jackson’s three-tiered test can be adapted to the international plane vis-à-vis the duty to prevent genocide as follows: (1) if the Security Council is actively seized of the matter, the exercise of the duty to prevent genocide is at its highest level of legitimacy when the P5 discharge their duty through the Security Council; (2) if the Security Council remains silent or deadlocked as a result of a veto-wielding member of the P5, the exercise of the duty to prevent genocide is at its next highest level of legitimacy (in descending order) when (a) the remaining non-vetoing P5 and regional/sub-regional organizations or representative regional states act collectively, (b) the remaining non-vetoing P5 act collectively, or (c) one of the remaining non-veto-wielding P5 acts unilaterally; and (3) if the Security Council is opposed to any action, the exercise of the duty to prevent genocide is at its next highest level of legitimacy when (a) the ‘great powers’ and/or representative regional states act collectively, and (b) a single state – i.e. one of the ‘great powers’ – unilaterally discharges its duty to prevent genocide. The unilateral exercise of the duty to prevent genocide must be utilized only as a last resort under the second and third steps of the three-tiered test, respectively, given the ICJ’s inclusion of the duty to cooperate as part of the duty to prevent, on the one hand, and the ICJ’s admonition that if international cooperation fails, ‘this does not mean that
254 See Independent International Commission on Kosovo, Kosovo Report: Conflict, International Response, Lessons Learned (2000), at 164. 255 See ROBERTS, supra note 248, at 182–4. 256 See ibid. at 189 (citing Corfu Channel, at 35) (noting the following: ‘The most commonly cited international example of the “illegal but justified” approach is the judgment of the ICJ in the Corfu Channel case. In that case, the United Kingdom conducted a minesweeping operation in Albanian waters after mines damaged its warships. The Court held that, despite Albania’s failure to fulfill its obligations [of notifying the United Kingdom], the United Kingdom’s action was illegal because it violated Albania’s sovereignty, but the only remedy it gave was a declaration of illegality.’) (internal citations omitted).
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 50 / Date: 24/5 JOBNAME: Heieck PAGE: 51 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 63
the States parties to the [Genocide] Convention are relieved of the obligation to take such action as they can to prevent genocide from occurring’, on the other.257 While the aforementioned three-tiered test represents the general framework of genocide prevention, how does this process play out specifically with respect to the P5?
4.2.2 Acting collectively within the Security Council The most effective, but not exclusive, forum in which international cooperation to prevent genocide should take place is the Security Council, which has been charged by the international community of states with the primary duty to maintain and restore international peace and security.258 Before addressing how the duty to prevent genocide affects China, France, Russia, the UK, and the US when they are acting as the P5, however, it is necessary to determine whether the P5 satisfy the due diligence standard. Due to their privileged legal position as the ‘great powers’ within the collective peace and security system of the UN, the P5 possess the means, influence, and knowledge required by the due diligence standard. First, in light of the considerable powers the UN members conferred on the Security Council in the UN Charter,259 the Security Council has the ability to pass binding decisions that call upon the diplomatic, military, economic, and other relevant means of all 193 UN member states to prevent genocide, and thus the capacity to effectively influence all genocidal actors wherever they may be found. Moreover, in light of their voting powers under the UN Charter, in particular their veto rights under Article 27(3), China, France, Russia, the UK, and the US have overwhelming, if not absolute, control over the Security Council as a result of their P5 status, and are therefore in a position, ‘unlike that of any of the other States parties to the Genocide Convention’, to either discharge, or disable, the Security Council’s considerable capacity to effectively influence these genocidal actors.260 Lastly, given their access to numerous early warning systems, including, but not limited to, those of the Offices of the Special Adviser on the Prevention of Genocide and the High Commissioner for Human Rights, these five states have the necessary tools to remain informed about
257 Bosnian Genocide case, at para. 427 (emphasis added). 258 UN Charter, at art. 24(1). 259 Ibid. at arts. 24–5, 39–42. 260 See A. ZIMMERMANN, ‘Article 27’ in B. SIMMA, D-E. KHAN,G.NOLTE, and A. PAULUS (eds.), The Charter of the United Nations: A Commentary, 3rd edn., vol. I, Oxford University Press, Oxford 2012, 871, 931–3. Reprinted by permission of Oxford University Press.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 51 / Date: 24/5 JOBNAME: Heieck PAGE: 52 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
64 A duty to prevent genocide
situations in which there exist serious risks that genocide might occur. As a result, the P5 satisfy the due diligence standard and therefore have a positive duty to prevent genocide if they have actual or constructive knowledge that a genocide is imminent or ongoing. The question becomes, then, what must the P5 do if their duty to prevent genocide is triggered? First, it is worth recalling that the due diligence standard requires that all states parties to the Genocide Convention – including the P5 – must do everything within their power to prevent genocide. This legal require- ment therefore compels these states not only to cooperate261 in good faith in negotiating and drafting a resolution under Chapter VII, but also to impose binding decisions, rather than non-binding recommendations,262 through such resolutions under Article 39.263 In addition, this standard requires that these states must use their best efforts to impose the necessary and appropriate measures under Articles 41 and 42 in an attempt to prevent or suppress the genocide in question.264 These Article 41 and 42 measures include, inter alia, the referral of such situations to the International Criminal Court;265 the imposition of economic sanc- tions, arms embargoes, asset freezes, and travel bans;266 the deployment of international monitors, fact-finding missions, and peace-enforcement forces;267 the institution of safe havens, humanitarian corridors, and
261 See CRAWFORD, supra note 106, at 249; J. KLABBERS, An Introduction to International Institutional Law, 2nd edn., Cambridge University Press, Cam- bridge 2009, at 176. 262 On the distinction between ‘binding decisions’ and ‘non-binding recom- mendations’, see A. PETERS, ‘Article 25’ in B. SIMMA, D-E. KHAN,G.NOLTE, and A. PAULUS (eds.), The Charter of the United Nations: A Commentary, 3rd edn., vol. I, Oxford University Press, Oxford 2012, 792–3; N. KRISCH, ‘Intro- duction to Chapter VII: The General Framework’ in B. SIMMA, D-E. KHAN, G. NOLTE, and A. PAULUS (eds.), The Charter of the United Nations: A Commentary, 3rd edn., vol. II, Oxford University Press, Oxford 2012, 1261. 263 See UN Charter, at art. 39. See also Chapter 3 for a more in-depth discussion. 264 See UN Charter, at arts. 41, 42. 265 See, e.g., SC Resolution 1970 (Libya), UN Doc.S/RES/1970 (26.2.2011), at 2–3. 266 See, e.g., ibid. at 3–6, Annex I and II; SC Resolution 1973 (Libya), UN Doc.S/RES/1973 (17.3.2011), at 4–8. 267 See, e.g., SC Resolution 2098 (Democratic Republic of the Congo (DRC)), UN Doc.S/RES/2098 (28.3.2013). In addition to consent-based peace- keeping under Chapter VI of the UN Charter, the Security Council may deploy preventative peacekeeping forces with mandates to protect civilians under Chapter VII. Responsibility To Protect: Timely and Decisive Response, Report of
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 52 / Date: 24/5 JOBNAME: Heieck PAGE: 53 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 65
no-fly zones;268 and the authorization of the use of force to protect national, ethnic, racial, or religious groups under threat of genocide.269 Due diligence requires that the P5 must adopt the relevant peaceful and/or forceful measures as dictated not by their discretion under the UN Charter, but by the circumstances of the imminent or ongoing genocide in question, if these five states are to discharge their duty to prevent genocide and avoid international responsibility. Therefore, if China, France, Russia, the UK, and the US fail to adopt the necessary measures in an attempt to prevent or suppress an imminent or ongoing genocide, then these states’ actions fall below the standard of care required by the due diligence standard and breach the duty to prevent genocide. Second, in addition to compelling these states to act in this manner under Chapter VII, the due diligence standard constrains each state from vetoing, either expressly or impliedly, draft resolutions aimed at prevent- ing genocide under Article 27(3).270 Express vetoes occur in the grand hall of the Security Council, where one or more of the P5 vote against draft resolutions that have been tabled for consideration. A recent example of express vetoes (albeit outside the genocide context) occurred during the Syrian Civil War, when the ‘Eastern P2’ – China and Russia – repeatedly vetoed several draft Security Council resolutions aimed at suppressing the war crimes and crimes against humanity committed by the government and rebel forces.271 Implied vetoes, or ‘pocket vetoes’, on the other hand, occur in the ‘back room’ of the Security Council, where one or more of the P5 effectively kill potential resolutions through political coercion, thereby preventing such resolutions from ever reaching
the Secretary-General, UN Doc.A/66/874–S/2012/578 (2012), at para. 16. See, e.g., Security Council Resolution 2098 (Democratic Republic of the Congo (DRC)), UN Doc.S/RES/2098, 28.03.2013 (authorizing the deployment of a preventative peacekeeping ‘intervention brigade’ to the DRC with a mandate to use offensive combat operations to ‘neutralize and disarm’ Congolese rebel groups). See also Too Risk-Averse, UN Peacekeepers in the DRC Get New Mandate and More Challenges, Global Observatory, 10.04.2013
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 53 / Date: 24/5 JOBNAME: Heieck PAGE: 54 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
66 A duty to prevent genocide
the floor of the Security Council for a vote. An example of implied vetoes occurred during the Rwandan genocide, when the ‘Western P3’ – France, the UK, and the US – repeatedly pressured other Council members not to propose draft resolutions on the floor of the Security Council.272 If one of these states expressly or impliedly vetoes a draft resolution containing the relevant Article 41 and Article 42 measures along these lines, then that state fails to do everything within its power to prevent genocide as required by the due diligence standard, thereby breaching its duty to prevent genocide and incurring international responsibility. If this occurs and the Security Council remains dead- locked, however, the remaining states parties to the Genocide Convention are not relieved of their obligation to prevent the genocide: they must continue to act, first collectively, then individually, outside of the Security Council in an attempt to prevent the genocide.
4.2.3 Acting collectively and individually without the Security Council when the Security Council is silent or deadlocked as a result of a veto-wielding P5 If the Security Council is silent or fails to act to prevent an imminent genocide as a result of a veto-wielding P5, the remaining states are not relieved of the obligation to take timely and decisive, and collective and individual, action as they can to prevent genocide from occurring.273 Collective action can take on a number of forms. First, the non-veto- wielding P5 should seek a resolution recommending the implementation of the necessary measures from ‘the General Assembly in [an] Emer- gency Special Session under the “Uniting for Peace” procedure’,274 if possible, coupled with the support of the relevant regional or sub-regional organizations encompassing the territory in which there exists a serious risk that genocide might occur.275 Second, if these P5 are unable to secure a General Assembly resolution under the ‘Uniting for Peace’ procedure in time, the P5 should nevertheless seek the support from the relevant regional or sub-regional organizations in order to discharge their duty to prevent genocide.276 Third, if these P5 are unable to obtain this support in time, the P5 should form a representative ‘Coalition of the
272 A. BLÄTTER and P.D. WILLIAMS, ‘The Responsibility Not to Veto’, (2011) 3 GR2P (Global Responsibility to Protect) 301–22, at 311. 273 Bosnian Genocide case, at para. 427. 274 Uniting for Peace, GA Resolution 377(V)(A), UN Doc.A/RES/377(V) (03.11.1950). See also ICISS Report, at xiii, 48, 53. 275 See ICISS Report, at xii–xiii, 53–5. 276 See ibid.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 54 / Date: 24/5 JOBNAME: Heieck PAGE: 55 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 67
Willing’, with as many states in close proximity to the territory in question, in order to avert or stop the genocide.277 Finally, if the P5 are unable to form such a coalition in time, these states should form a collective force of their own in order to tackle the genocidal threat. If these attempts at international cooperation fail, however, the duty to prevent genocide does not also fail; instead, it falls to the individual states that satisfy the due diligence standard. Should international cooperation fail, the principle of common but differentiated responsibilities and the imminence standard, coupled with the precautionary principle, become especially relevant to answering the question of ‘who must act?’ under the due diligence standard. To answer this question, it is necessary to examine the economic and military capabilities of the ‘great powers’ of the international order278 –in particular, the US. The US has the world’s largest economy and mili- tary.279 The US has thousands of military bases in hundreds of countries on every continent in the world.280 And the US has a blue water navy and a global fleet of fighters, bombers, and drones that are unrivalled by any other single state. In short, the US possesses the means to project its economic and military capabilities, and thus the capacity to effectively influence genocidal actors, unlike that of any of the other states parties to the Genocide Convention. Thus, in situations where the US is aware, or should have been aware, that genocide is imminent, and where inter- national cooperation, as described above, has failed, the US must do everything within its considerable power to prevent genocide, including engaging in military intervention for humanitarian purposes, if necessary, to protect national, ethnic, racial, or religious groups under threat of or being subjected to genocide. Individual action is not limited to the ‘great powers’, however. Whether within or without the Security Council, all states parties to the Genocide Convention must withhold all diplomatic, military, economic,
277 See ibid. 278 The top ten economic powers (in descending order) are the US, China, Japan, Germany, the UK, France, Brazil, Italy, India, and Russia. The top six military powers (in descending order) are the US, Russia, China, India, the UK, and France. As such, the P5 represent the great economic and military powers of the international order. 279 Global Firepower, ‘Countries Ranked by Military Strength (2015)’
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 55 / Date: 24/5 JOBNAME: Heieck PAGE: 56 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
68 A duty to prevent genocide
and other relevant aid and assistance to genocidal actors ‘suspected of preparing genocide, or reasonably suspected of harboring specific intent (dolus specialis)’.281 This means that ‘[n]o State shall recognize as lawful a situation created by a serious breach [by a state of an obligation arising under a peremptory norm of general international law,]’282 such as the prohibition of genocide,283 ‘nor render aid or assistance’, of the kind referenced in the Bosnian Genocide case, ‘in maintaining that situ- ation’.284 Failure to do so results in a breach of the duty to prevent genocide.
4.2.4 Acting collectively and individually when the Security Council is opposed to action In the unlikely event that the Security Council would pass a resolution expressly precluding member states from discharging their duty to prevent genocide in a given territory, the ‘great powers’ of the inter- national order should cooperate with regional organizations and/or repre- sentative states, as noted above, to prevent the genocide. If such cooperation fails, then one of the ‘great powers’ – in particular (for reasons already stated) the US – should act unilaterally to avert or stop the genocide. What is more likely, however, under this third step of the Jackson test is a Security Council resolution that impliedly precludes such action, as in the case of the second provisional measures stage of the Bosnian Genocide case.285 In his separate opinion, Judge ad hoc Lauterpacht recognized the unequal effects the Security Council’s arms embargo had on Bosnia and Herzegovina during the Serbian/Bosnian war:
The Serbians in Bosnia had (and have) the support of the Serbians in Serbia and the latter have the benefit of access to the stocks of arms of the Yugoslav National Army, the production of arms factories in Serbia and the import, in breach of the embargo, of arms and military equipment via the Danube and other routes. The Bosnian Muslims did not (and do not) have these advantages.286
281 Bosnian Genocide case, at para. 431. 282 ARSIWA, at art. 41(2) (citing ARSIWA, at art. 40(1)). 283 See Rwanda case, at 64. 284 ARSIWA, at art. 41(2). 285 Bosnian Genocide order (sep. op. Lauterpacht). 286 Ibid. at para. 95.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 56 / Date: 24/5 JOBNAME: Heieck PAGE: 57 SESS: 5 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 69
As a result of this disparity, Judge ad hoc Lauterpacht recognized that the Security Council resolution, though facially valid,287 indirectly infringed on Bosnia and Herzegovina’s ability to engage in self-defense and thus prevent Serbia’s genocidal acts:
Now, it is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting a rule of jus cogens or requiring a violation of human rights. But the possibility that a Security Council resolution might inadvertently or in an unforeseen manner lead to such a situation cannot be excluded. And that, it appears, is what has happened here. On this basis, the inability of Bosnia-Herzegovina sufficiently strongly to fight back against the Serbs and effectively to prevent the implementation of the Serbian policy of ethnic cleansing is at least in part directly attributable to the fact that Bosnia-Herzegovina’s access to weapons and equipment has been severely limited by the embargo. Viewed in this light, the Security Council resolution can be seen as having in effect called on Members of the United Nations, albeit unknowingly and assuredly unwill- ingly, to become in some degree supporters of [i.e. complicit in] the genocidal activity of the Serbs and in this manner and to that extent to act contrary to a rule of jus cogens.288 What legal consequences may flow from this analysis? One possibility is that, in strict logic, when the operation of paragraph 6 of Security Council resolution 713 (1991) began to make Members of the United Nations accessories to genocide, it ceased to be valid and binding in its operation against Bosnia-Herzegovina; and that Members of the United Nations then became free to disregard it.289
Thus, in instances such as Resolution 713, in which the Security Council impliedly precludes member states of the UN, and states parties to the Genocide Convention, from using their best efforts to prevent genocide in a given territory, thereby indirectly transforming such states into acces- sories to genocide, these states may not only disregard the Security Council resolution, which as applied violates a jus cogens norm, but also discharge their duty to prevent genocide in opposition to said resolution. In fact, the duty to prevent genocide requires that the states parties to the Genocide Convention, which satisfy the due diligence standard, must do so, if they are to avoid international responsibility.290
287 Ibid. at para. 98. 288 Ibid. at para. 102. 289 Ibid. at para. 103. 290 But see ibid. (admitting that, ‘[e]ven so, it would be difficult to say that [states parties to the Genocide Convention] then became positively obliged to provide [Bosnia and Herzegovina] with weapons and military equipment’). It is
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 57 / Date: 24/7 JOBNAME: Heieck PAGE: 58 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
70 A duty to prevent genocide
5 CONCLUSION
In closing, the duty to prevent genocide under Article I of the Genocide Convention imposes several legal obligations on the P5 when they are acting within and without the Security Council. Because the P5 satisfy the due diligence standard, they must cooperate to prevent or suppress an imminent or ongoing genocide if they have the requisite knowledge that there exists a serious risk that genocide will occur or reliable facts that genocide is already occurring. As Justice Jackson’s three-tiered test demonstrates, this cooperation between the P5 may take place in a variety of forums, in the following descending order of legitimacy: action within the Security Council; action within the ‘Uniting for Peace’ procedure and with the relevant regional and/or sub-regional organ- izations; action with a ‘Coalition of the Willing’ of representative regional states; and action with a coalition of non-vetoing members of the P5. At each point along this line, if one of the ‘great powers’ or ‘lesser powers’ refuses to cooperate in an attempt to prevent or suppress an imminent or ongoing genocide, whether by vetoing or failing to adopt the necessary and appropriate measures to prevent genocide, then that state breaches its duty to prevent genocide under Article I of the Genocide Convention and incurs international responsibility as a result. If inter- national cooperation should fail, the second and third steps in Jackson’s test require military intervention for human protection purposes in order to discharge the duty to prevent genocide, with the ultimate duty-bearer being the US. Moreover, throughout this process, each state, regardless of its means, must neither recognize as lawful the genocidal situation, nor provide any aid or assistance to the genocidal actors. Failure to comply with these requirements also leads to international responsibility. While the duty to prevent genocide under Article I of the Genocide Convention provides that the P5 must act in the aforementioned manner, the P5’s voting rights under the relevant articles of the UN Charter provide that the P5 may act in this way if they decide to do so. Chapter 3 will address the P5’s near-absolute discretion in this regard, and will demonstrate the conflict between the P5’s duty to prevent genocide under the Genocide Convention and the P5’s voting rights under the UN
worth noting that this caveat from Judge ad hoc Lauterpacht was stated in 1993, i.e. 14 years before the ICJ handed down its judgment on the merits in the Bosnian Genocide case, in which the Court promulgated the much more stringent due diligence standard.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 58 / Date: 24/5 JOBNAME: Heieck PAGE: 59 SESS: 3 OUTPUT: Wed Aug 1 09:24:06 2018
The P5’s duty to prevent under the Genocide Convention 71
Charter. Chapter 4 will then resolve this conflict in favor of the former, due to its peremptory character under jus cogens. But first, Chapter 2 will address whether the duty to prevent genocide is a rule under customary international law.
John Heieck - 9781788117715 Downloaded from Elgar Online at 09/27/2021 09:01:11AM via free access
Columns Design XML Ltd / Job: Heieck-A_duty_to_prevent_genocide / Division: Heieck02Chapter1FINALtrackchanges /Pg. Position: 59 / Date: 24/5