Daesh and the Duty to Prevent Genocide

by John Heieck

[John Heieck is the Lecturer of Public International Law at the University of Kent, Brussels School of International Studies.]

On 17 March 2016, US Secretary of State John Kerry announced that ‘Daesh is responsible for genocide against groups in areas under its control, including Yazidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions, in what it says, what it believes, and what it does.’

The US’ pronouncement is the latest in a series of such statements over the past year. On 19 March 2015, the Office of the High Commissioner for Human Rights produced a report stating that Daesh, also known as ISIS or ISIL, may have committed genocide against Yazidis, Christians, and Shia Muslims in Iraq. In addition, on 3 February 2016, the Parliament of the European Union adopted a resolution proclaiming that ‘the so-called “ISIS/Daesh” is committing genocide against Christians and Yazidis, and other religious and ethnic minorities, who do not agree with the so-called “ISIS/Daesh” interpretation of Islam, and that this therefore entails action under the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.’

While there seems to be a growing consensus that Daesh has committed, and is committing, genocide against these ethnic and religious groups in Iraq and Syria, there appears to be disagreement over what, exactly, this designation entails under the Genocide Convention. For example, according to US State Department Deputy Spokesman Mark Toner, ‘acknowledging that genocide or crimes against humanity have taken place in another country would not necessarily result in any particular legal obligation for the United States’. Mr. Toner’s position appears to be based on the belief that the Genocide Convention ‘creates obligations on states to prevent genocide within their territory and to punish genocide’. As evidenced by the ICJ’s holding in the Bosnian Genocide case, however, this is simply not the standard for the duty to prevent genocide under Article I of the Genocide Convention.

Article I of the Genocide Convention 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’. As the International Court of Justice (ICJ or the Court) noted in the Bosnian Genocide case, the scope of the duty to prevent genocide is determined by the ‘due diligence standard’. The due diligence standard provides that, if a State has the capacity to effectively influence the genocidal actors and the knowledge that genocide is imminent or ongoing, the State has a legal duty to use its best efforts within the means available to it to prevent the genocide from occurring or continuing.

The ICJ described in detail the ‘capacity to effectively influence’ requirement in paragraph 430 of the Bosnian Genocide case. There are three aspects of this requirement that are worth highlighting. First, the requirement is not territorially limited. Instead, ‘[t]his capacity … 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’. These links include political, military, and financial links between the State in question and the genocidal actors. Second, the requirement incorporates the principle of ‘common but differentiated responsibilities’. As the Court noted in the case, the capacity to effectively influence ‘varies greatly from one State to another’. This means that the more a State can do to prevent genocide, the more a State must do. This, in turn, varies according to the State’s ‘legal position’ vis-à-vis the genocidal actors; meaning, if the State is in a position of influence, such as membership on the UN Security Council, the State has greater capacity to influence the actors in question than non-members because it can pass resolutions binding on all UN member States to prevent the genocide. Third, the requirement imposes a duty to cooperate on all States to bring the genocide to an end. The ICJ 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’. According to the Court, ‘[a]s 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 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’. This form of cooperation is best suited to the UN Security Council, which, as noted above, has the power to bind all UN member States.

As for the ‘knowledge’ requirement, the ICJ noted 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.’ (Bosnian Genocide case, at para. 431). The Court explained that this awareness, which triggers a State’s positive duty to act, might result from actual (subjective) or constructive (objective) knowledge of the relevant events, which should be interpreted in light of any history of hatred, especially of genocide, between the relevant groups. (See Bosnian Genocide case, at paras. 283, 285, 410, and 436). 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. (Bosnian Genocide case, at para. 431).

Provided these two requirements of the due diligence standard are met, the State in question has a legal duty to use its ‘best efforts’ – within the means available to it – to prevent the genocide in question. According to the ICJ, ‘it is clear that the obligation in question 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: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible’. (Bosnian Genocide case, at para. 430). Moreover, ‘[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’. (Bosnian Genocide case, at para. 430).

In applying this due diligence standard to the facts of the case, it is clear that the US and others have a legal duty to prevent further genocide by Daesh against the Yazidis, Christians, and Shia Muslims in Iraq and Syria. The question is whether the efforts made thus far have satisfied the due diligence standard. US- and Russian-led coalitions have been pounding Daesh with airstrikes since mid-2014; however, Daesh’s genocidal campaign continues. In addition, according to reports, other States within the region, such as Saudi Arabia, Qatar, and Turkey, have continued aiding and assisting radical groups in Iraq and Syria with arms and munitions despite the genocide against the Yazidis, Christians, and Shia Muslims. Under the due diligence standard, this military aid and assistance must stop. But what more can – and must – the US and others do?

The US, Russia, China, France, and the UK are the five permanent members of the Security Council (P5). In light of their veto rights under Article 27(3) of the UN Charter, these five States have the power to discharge, or disable, the Security Council’s considerable capacity to effectively influence genocidal actors wherever they may be found. In light of the due diligence standard, the P5 must use their best efforts within the means available to them – including their means within the Security Council – to prevent further genocide in Iraq and Syria. This means that the P5, along with the ten non-permanent members of the Security Council, should pass binding resolutions under Chapter VII, which, inter alia, refer the situations in Iraq and Syria to the International Criminal Court, impose arms embargos on Daesh and related groups, and authorize the deployment of a UN peace-enforcing force to the areas in which Daesh is operating. By engaging in such actions, the US and the other members of the P5 will truly be doing everything within their power to prevent genocide in accordance with the due diligence standard.

http://opiniojuris.org/2016/04/06/daesh-and-the-duty-to-prevent-genocide/

9 Responses

  1. Thanks for the post , let me just disagree to some extent , as follows , without exhausting all at all , here :

    The observations or rules , made by the ICJ with all due respect , are rather theoretical and legal , but ignore , life experience , or rather , Geo- political experience .

    It has been proved , in modern eras , that, huge political and military coalitions , can be established for defeating evil and tyranny . And so, it would be enough to remind you, what happened, in that first Iraq war ( Gulf war ) after Saddam Hussein, had occupied Kuwait..

    A huge coalition , of dozens of states ( 34 nations ) formed a huge army ( including even Syria , while both states : Iraq and Syria , where Arabs , muslims , and in both , the Baat party ruled over ) and re – took over , Kuwait from Saddam .

    So, while dealing with Genocide let alone , what can be done , should be elevated far beyond reasonable means and power dictated by the ICJ .

    And what would be the legal source , very simple , here , from the UN charter :

    ” Article 42

    Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

    Article 43
    1

    All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.”

    Thanks

  2. Thank you for your comments, El roam. I have just a few points I’d like to make.

    First, I am somewhat confused by your comment: ‘So, while dealing with Genocide let alone, what can be done, should be elevated far beyond reasonable means and power dictated by the ICJ.’ It is important to note that the ICJ did not pull the due diligence standard out of thin air. Over the centuries, numerous international legal scholars, claims commissions, arbitration awards, and judicial decisions have observed, 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, that the duty to prevent a given activity, such as genocide, necessarily entails the application of the due diligence standard. (See J. Heieck, ‘The Responsibility Not to Veto Revisited: How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council’ in R. Barnes and V. Tzevelekos (eds.), Beyond Responsibility to Protect: Generating Change in International Law). The fact that the ICJ utilized the due diligence standard in deciding whether Serbia breached the duty to prevent genocide in the Genocide Case was, therefore, quite reasonable (if not required).

    Second, I’m not sure if citing the First Iraq War is as convincing as you think, because, remember, the coalition was sanctioned by the UN Security Council. And lastly, I don’t understand the reference to Article 43 of the UN Charter. Article 43 envisioned a standing ‘UN army’, which obviously failed to materialize as a result of the Cold War.

    I look forward to your comments. Thanks!

  3. John Heieck ,

    Thanks for your comment . I don’t have nothing against those due diligences standards of the ICJ , but :

    What I claim , is that , morally , and legally , much more should be done , in order to prevent Genocides , Since , as you know , it is considered in the international law , as the most serious one , and I have suggested or indicated , clear legal sources for it , for doing more . If for the occupation of Kuwait, such measured were taken, surly for Genocide !!

    Simply , much more can be done , should be done , that observation of the ICJ , is correct , and of course legal , yet , negligible in effective terms , and in light of other possible models and experiences .

    Finally , The SC , can use and activate , UN members forces and troops , for executing its resolutions ( like in the Gulf war ) .What seems to be the problem ? I couldn’t realize ! Read again the articles , read the resolutions ahead ( Gulf war ) and you would understand .

    http://www.iilj.org/courses/documents/iraqsecuritycouncilresolutions.pdf

    Thanks

  4. John Heieck ,

    Just illustrating the principle , of using states members forces ,for execution of SC resolutions , and in Iraq for example , here I quote from :

    ” Security Council Resolution 665
    25 August 1990

    1. Calls upon those Member States co-operating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990); ”

    End of quotations :

    So , I strongly believe , that you would realize now .

    Thanks

  5. John Heieck ,

    You could also , reach the following link ( SC resolution ) and see , in the Bosnian war itself , How the security council , is using , states members forces ( including Nato of course ) for military action ( or rather : for imposing non flight zone ) .

    Reach Article 4 here :

    http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Chap%20VII%20SRES%20816.pdf

    And realize, that, no reason, why SC and states members armies, wouldn’t act for prevention of: Surly Genocide, in broad daylight, and ongoing, years upon years so.

    So , that is the model , the right model , and rather ,should have been , the call of the ICJ for All Nations , for defining what can and should be done . The standards , set up by the ICJ , are too pale and weak , in light of the gravity and seriousness of such crimes , with all due respect . That is how models are put , and finally , in time , reached . Once , there wasn’t any permanent court for international crimes , and now , there is one !! Once, immunity was granted to heads of states, For international crimes, No more!!

    In such , practically , a state , should push , support , activate , the right political formation , pressures , coalitions building , for an SC militant resolution .

    Thanks

  6. Dear John,

    Thank you for your very interesting post.

    If I have understood your reasoning correctly – and stressing it to its logical limits – a wrong exercise of the veto power by the UNSC permanent members, which would disable the SC power of intervention against Daesh in order to prevent a genocide, could lead to affirm their international responsibility for the violation of the due diligence standard.

    Accordingly, it can be argued that:

    1) the unfair use of the veto power to prevent the UNSC intervention would constitute a wrongful conduct under a strictly legal perspective and not a mere political choice to blame;

    2) the UN system of collective security (including the individual or collective self-defense regime of article 51) would not be the ultimate legal framework within which such conduct should be appraised, since in the event of a paralysis of the SC action, the lex specialis represented by UN Charter (and UNSC resolutions) should be replaced by the lex generalis, i.e. by the customary norms which impose to States a duty to prevent genocide as a ius cogens obligation.

    This suggests to me that the use of force against Daesh, even in the absence of an explicit UNSC authorization (the res. 2249 actually fails to authorize the use of force according to Chapter VII of UN Charter), should be considered lawful not under the special derogatory regime of the collective self-defense provided by Article 51, but under the general rules established by the Draft articles on responsibility of States for internationally wrongful acts, namely those which regulate the States’ cooperation in the event of serious breaches of obligations arising under peremptory norms of general international law (that, of course, is the case of the crime of genocide).

    My point is that, in such cases, the international community as a whole is involved in the reaction and is legitimised to use armed force to prevent the breach even when UNSC fails to authorize it through a specific resolution.

  7. Dear Nicola,

    Thank you for your equally interesting response.

    For the most part, I agree with you. In my view, the duty to prevent genocide imposes a legal duty not to veto on the P5 when they are faced with an imminent or ongoing genocide. I make a similar argument to yours in my recently published article, ‘The Responsibility Not to Veto Revisited: How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council’ in R. Barnes and V. Tzevelekos (eds.), Beyond Responsibility to Protect: Generating Change in International Law, Intersentia Press 2016.

    My only point of disagreement with your post is the contention that the collective peace and security system of the UN serves as lex specialis vis-a-vis the duty to prevent genocide. I actually think it’s the other way around. 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 ed., vol. I, OUP, Oxford 2012, p. 928 (noting that the prohibition of the use of force under Article 2(4) of the UN Charter is not lex specialis vis-a-vis the duty to prevent genocide under Article I of the Genocide Convention). In any event, I think this point is moot given the peremptory character of the prevention of genocide.

    Ultimately, though, I agree with your position: ‘the international community as a whole is involved in the reaction and is legitimised to use armed force to prevent the breach even when UNSC fails to authorize it through a specific resolution’. I would further add, given the principle of common but differentiated responsibilities inherent in the due diligence standard, that the P5 – arguably the ‘great powers’ of the international order – have a special role to play in this regard.

    Thanks for your comments!

    Best,

    John

  8. Dear John,
    Thank you for your kind response.
    I will certainly read your article, my current research activity is focused on the “creeping” modification of the traditional ius ad bellum rules due to the need to face the global terrorist threat.
    My last published article is about the use of drones in counterterrorism:
    N. Colacino, From just war to permanent self-defence: the use of drones in counterterrorism and its questionable consistency with International Law standards, http://www.rivistaoidu.net n. 4/2015, pp. 607-629.
    Hope we will have new chances to exchange our views.
    Best,

    Nicola

  9. Thanks, Nicola. I will read your article with great interest.

    Best,

    John

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