Symposium: A Duty to Prevent Genocide–Due Diligence Obligations among the P5 (Part One)

[Dr. John Heieck is a criminal defense lawyer in the US and an independent researcher of genocide and human rights studies.]

Before I begin, I would like to thank Opinio Juris and the International Commission of Jurists for hosting this online symposium on my new book A Duty to Prevent Genocide: Due Diligence Obligations among the P5. I would also like to thank the preeminent scholars who agreed to not only read my book but also provide their respective analyses of what is an admittedly controversial position on the possible consequences of the duty to prevent genocide and its concomitant due diligence standard on the permanent five members of the UN Security Council (P5). Finally, I would like to thank my good friend Kevin Jon Heller for his invaluable feedback on the first draft of my book, and for his unwavering encouragement to continue pursuing my scholarship on the prevention of mass atrocity crimes (despite his disagreement with some of my conclusions). I cannot thank you all enough.

A Duty to Prevent Genocide seeks to answer two questions: first, what is the scope of the duty to prevent genocide in light of the due diligence standard that governs its operation under international law; and second, what are the resultant obligations of this standard on the P5 when these “Great Powers” of the international order are faced with an imminent or ongoing genocide?

In answering these questions, I argue four key points: (1) pursuant to their due diligence obligations, the P5 have a duty first and foremost not to veto draft Security Council resolutions aimed at preventing genocide; (2) if the Security Council becomes deadlocked in such a situation due to a veto-wielding member of the P5, the remaining permanent members (in particular the US) have a duty to act outside the context of the Security Council to discharge the duty to prevent, including using “unauthorized” or “unilateral” humanitarian intervention, if necessary; (3) the P5’s duties not to veto and to engage in humanitarian intervention conflict with the P5’s right to veto all substantive decisions of the Security Council under Article 27(3) of the UN Charter and the P5’s duty not to use force under the post-WWII jus ad bellum, respectively; and (4) because the duty to prevent genocide is a jus cogens norm, the aforementioned conflict is resolved in favor of the P5’s due diligence obligations.

The Scope of the Duty to Prevent Genocide

The due diligence standard and its concomitant obligations. In Chapters 1 and 2, I analyze the scope of the duty to prevent genocide under the Genocide Convention and customary international law. I carry out this task based not only on the discussion of the due diligence standard in the holding of the International Court of Justice (ICJ or the Court) in the Bosnian Genocide case, but also on the development of the standard over centuries of judicial decisions, claims commission findings, arbitration awards, and writings of highly qualified publicists, 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. From these subsidiary sources of international law, I posit that the due diligence standard, which underpins all duties to prevent wrongful conduct, including genocide, is circumscribed by both objective and subjective elements.

The objective element of due diligence requires some degree of linkage between the relevant actors engaged in wrongful conduct and the state whose international responsibility is in question. This degree of linkage depends on a variety of considerations, such as territory, jurisdiction, control, or influence, the application of which is determined by the raison d’être and subject matter of the corresponding primary obligation. In the case of the duty to prevent genocide, given the communal and universal nature of the norm, the satisfaction of the linkage requirement, and thus the objective element of due diligence, depends on a state’s capacity to effectively influence actors committing or threatening to commit genocide against a protected group. This capacity, in turn, depends on the geographical distance of the state in question from the territory on which genocide is occurring or likely to occur, as well as on the political, military, economic, and other links between the state and the suspected génocidaires. In addition, a state’s capacity to influence “varies greatly from one [s]tate to another” and changes depending on the state’s “particular legal position vis-à-vis the situation and persons facing the danger, or the reality, of genocide.” (Bosnian Genocide case, at para. 430). In this way, the capacity to effectively influence incorporates the “principle of common but differentiated responsibilities,” which provides, in essence, that the more a state can do, the more it must do. However, the capacity to effectively influence also contemplates a duty to cooperate on the part of all states to pool their resources in an attempt to prevent the genocide.

The subjective element of due diligence requires some degree of knowledge on the part of the state that there exists a serious risk that a relevant harm, such as genocide, might occur. In this regard, knowledge is determined by the “knew or should have known” standard stemming from actual or constructive knowledge of the relevant events, which, in the context of genocide, should be interpreted in light of any history of hatred between the relevant groups. 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 exercise its capacity to effectively influence the relevant actors and make use of all available means to prevent the genocide from occurring. (Bosnian Genocide case, at para. 431). This dolus specialis may be proven by, inter alia, the general context of the relevant events or the existence of a plan or policy to commit genocide. (Mladić case, at para. 3457). Evidence of such a plan or policy may be reflected in “the number and nature of the forces involved, the standardized 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.” (Krstić case, at para. 572).

If the objective and subjective elements of the due diligence standard are satisfied, then the state’s positive duty to prevent the wrongful conduct in question is triggered. It is important to note, however, that due diligence imposes “obligations of conduct” rather than “obligations of result.” 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. Whether a state has used its “best efforts” in discharging its positive obligations is determined ex ante by whether the state has taken all necessary and proportional measures at its disposal vis-à-vis the prohibited activity in question. In the case of the prevention of genocide, if a state has the requisite capacity to effectively influence the suspected genocidal actors and knowledge that there exists a serious risk that genocide might occur in a given territory, the state has a duty to do everything within its power to prevent the genocide, including utilizing its legal position within international institutions, such as the UN. Thus, the ultimate question that the book seeks to answer is as follows: what are the ramifications of the application of the due diligence standard to the P5 when these “Great Powers” of the international order are faced with an imminent or ongoing genocide?

Applying the Due Diligence Standard to the P5

Due diligence obligations. Before determining the due diligence obligations among the P5 vis-à-vis the prevention of genocide, it is necessary to determine whether the P5 satisfy the elements of the due diligence standard. In light of their privileged legal position as permanent, veto-wielding members of the Security Council, and thus their role as the “Great Powers” within the existing international order, the P5 possess the necessary 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 Articles V and VII of the UN Charter, the Security Council has the ability to pass binding decisions that call upon the political, 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. In addition, in light of their voting powers under the UN Charter, in particular their veto rights under Article 27(3), the P5 have overwhelming, if not absolute, control over the Security Council as a result of their privileged legal position within the collective peace and security system of the UN. The P5 are therefore in a position unlike that of any of the other states to either discharge, or disable, the Security Council’s considerable capacity to effectively influence these genocidal actors. Moreover, 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, the P5 have the necessary tools to remain informed about situations in which there exist serious risks that genocide might occur. As a result, as a general proposition, 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?

The P5’s duty not to veto. Given the due diligence standard’s mandate that states must use all means within their diplomatic arsenal to prevent genocide, including utilizing any privileged legal positions within international institutions, such as the UN, the obligations flowing from the due diligence standard constrain each member of the P5 from vetoing, either expressly or impliedly, draft resolutions aimed at preventing genocide under Article 27(3). 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. 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 floor of the Security Council for a vote. With this in mind, if one of the P5 expressly or impliedly vetoes a draft resolution aimed at preventing genocide, then that state fails to do everything within its power to prevent the mass atrocity as required by the due diligence standard, thereby breaching the standard of care and violating the duty to prevent. If this occurs and the Security Council remains deadlocked, however, the remaining members of the P5 are not relieved of their obligation to prevent the genocide: they must continue to act, first collectively, then individually, if necessary, outside the context of the Security Council in order to prevent the genocide.

The P5’s duty to engage in humanitarian intervention. If a member of the P5 vetoes a resolution aimed at preventing genocide, the remaining members are compelled to take collective, timely and decisive action to prevent genocide from occurring. Collective action may take on a number of forms, including under the guise of the “Uniting for Peace” procedure or a “Coalition of the Willing.” If these attempts at international cooperation fail, the duty to prevent genocide does not also fail, however; instead, it falls to the individual states that satisfy the due diligence standard. Here, the principle of common but differentiated responsibilities becomes 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 order – in particular, the US. The US has the world’s largest economy and military. It has thousands of military bases in hundreds of countries on every continent in the world. And it has a blue water navy and a global fleet of fighters, bombers, and drones, among other assets, 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 other state. Thus, in situations where the US is aware, or should have been aware, that genocide is imminent, and where international cooperation, as described above, has failed, the US is compelled to do everything within its considerable power to prevent genocide, including using force, if necessary, to protect national, ethnic, racial, or religious groups under threat of or being subjected to genocide.

This is not the end of the analysis, however. The P5 have a nearly unbridled discretionary right to veto any substantive decision of the Security Council under Article 27(3) of the UN Charter. The P5 also have a duty not to use force unless they are authorized by the Security Council to do so or they are acting in self-defense. The next two steps in the analytical framework, therefore, are (a) whether a conflict exists between these rights and duties and the aforementioned due diligence obligations, and (b) if so, the manner in which this conflict must be resolved under the conflict resolution mechanisms of general international law. I will continue this analysis in the next introductory post.