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Downloaded from Elgar Online at 09/27/2021 09:01:11AM Via Free Access 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.
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