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

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

As noted at the end of the last post, the analytical framework for A Duty to Prevent Genocide: Due Diligence Obligations among the P5 is as follows: first, what is the scope of the duty to prevent genocide and its concomitant due diligence standard under conventional (Chapter 1) and customary (Chapter 2) law; second, do the resultant obligations of the due diligence standard conflict with any other norms under international law (Chapter 3); and third, if such a conflict exists, how is it resolved using the conflict resolution mechanisms under general international law (Chapter 4)? Part Two of this post will address points two and three above.

The Conflict between the P5’s Due Diligence Obligations under the Prevention of Genocide and the P5’s Rights and Duties under the UN Charter and Custom

Definition of “conflict”. Before determining whether conflicts exist between the P5’s due diligence obligations and the P5’s rights and duties under the UN Charter and custom in Chapter 3 of A Duty to Prevent Genocide, I define the term “conflict” in accordance with the majority view on the issue. According to this view, the possibility of a conflict arises if two different rules deal with the same subject matter. The test of “sameness” is satisfied if an attempted simultaneous application of two rules – whether obligations or rights – to one set of facts leads to incompatible results. For this reason, in Chapter 3 I adopt the the guiding principle that a right (or duty) under one treaty (or customary rule) conflicts with a duty under another treaty (or custom) if the exercise (or performance) of the former constitutes, leads to, or may lead to a breach of the latter.

The conflict between P5’s duty not to veto under due diligence and the P5’s right to veto under Article 27(3) of the UN Charter. In Chapter 3, I recall that due diligence obligations constrain the P5 from voting in a certain way when they are faced with an imminent or ongoing genocide. Specifically, due diligence requires that the P5 must not veto, either expressly or impliedly, draft Chapter VII resolutions of the Security Council under Article 27(3). This mandatory requirement under Article I of the Genocide Convention and customary international law clearly conflicts with the permissive right under Article 27(3) of the UN Charter, which provides the P5 with broad, if not absolute, discretion in vetoing all decisions of the Security Council of a substantive nature. Therefore, the P5’s duty not to veto under conventional and customary law conflicts with the P5’s right to veto under Article 27(3) of the UN Charter.

The conflict between the P5’s duty to engage in humanitarian intervention and the P5’s duty not to use force under the post-WWII jus ad bellum. In Chapter 3, I further recall that if a member of the P5 vetoes a resolution aimed at preventing genocide, the duty to prevent falls to the remaining permanent members to discharge their due diligence obligations, including using humanitarian intervention, if necessary. This obligation clearly conflicts with the obligations contemplated by the post-WWII jus ad bellum under the UN Charter and custom, which provides that a state may only use force pursuant to a Security Council resolution under Chapter VII or in self-defense. For this reason, a conflict also exists between the P5’s duty to engage in humanitarian intervention (if a member of the P5 breaches the duty not to veto) and the duty not to use force absent self-defense or Security Council authorization under the UN Charter and custom.

Resolving the Conflict through Jus Cogens

In Chapter 4, I note that the conflicts recognized in Chapter 3 must be resolved in favor of the Charter duties under Article 103 thereof unless the duty to prevent genocide is a jus cogens norm. A jus cogens norm is defined as a peremptory norm of general international law that is “accepted and recognized by the international community of [s]tates as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” (VCLT, at art. 53). This definition raises an important (albeit often-ignored) question: how are jus cogens norms identified?

The test for identifying jus cogens norms. Based on the historical and theoretical underpinnings of jus cogens, which I analyze in depth, I propose the following three-part test for identifying jus cogens norms in Chapter 4. First, a very large majority of states must accept and recognize the norm in question. This acceptance and recognition is evidenced by the conclusion of general multilateral treaties, the creation of customary international law, and the existence of general principles of law to which the very large majority of states have consented. While the acceptance and recognition of the norm in question does not entitle a state or a small minority of states from blocking the creation of jus cogens norms, a reservation or objection to a particular treaty or customary rule, respectively, may militate against its peremptory norm-creative effect. Second, the candidate treaty provisions, customary norms, and general principles must be comprised of a special subject matter, which protects the overriding interests and fundamental values of the international community of states as a whole. In multilateral treaties of a fundamentally norm-creating character, this special subject matter can be found in the object and purpose of the convention, which, like the conventional provisions themselves, the very large majority of states have agreed to and reduced in writing. Third, the non-derogability of the norm equates to the non-bilateralizability of the norm; meaning, no two states may contract their way out of the norm unless they do so with a norm having the same peremptory character. Crucially, it also refers to the fact that the norm in question must not be subordinated to another norm.

Applying the test for identifying jus cogens norms to the duty to prevent genocide. The duty to prevent genocide satisfies all three steps of the test required to identify the existence of jus cogens norms. First, as of the date of the writing of Chapter 4, 147 states had accepted and recognized, without reservation, the duty to prevent genocide under Article I of the Genocide Convention. This constitutes a very large majority of states (i.e. over three-fourths of the UN membership), which is mirrored, without objection, in customary international law, as I note in Chapter 2. Second, the duty to prevent genocide consists of a special subject matter that protects the overriding interests and fundamental values of the international community of states as a whole. This observation is especially true with respect to the duty to prevent genocide in Article I of the Genocide Convention and customary international law, whose sole purpose, as a communal, rather than an unilateral or bilateral, interest, is to prevent the destruction, in whole or in part, in peacetime or in war, of national, ethnic, racial, and religious groups. It is indeed difficult to imagine a treaty provision that protects more the overriding interests and fundamental values of the international community of states as a whole than the duty to prevent genocide. (Reservations to Genocide Convention advisory opinion, at pp. 188-189). Third, the duty to prevent genocide in Article I of the Genocide Convention is non-bilateralizable in character; for example, there are no provisions in the Convention which allow the states parties thereto to contract their way out of Article I, nor are there any instances of the states parties trying to modify the norm with a subsequent norm having the same character. In addition, the duty to prevent genocide is not subordinated to any other norm in international law, such as the UN Charter. As a result, all three steps of the test for identifying jus cogens norms are satisfied. Therefore, the duty to prevent genocide and its concomitant due diligence obligations under Article I of the Genocide Convention and customary international law amount to jus cogens. For this reason, the P5’s duty not to veto Security Council resolutions aimed at preventing genocide and duty to engage in humanitarian intervention, whether collective or unilateral, in the event a member of the P5 breaches the former and vetoes such a resolution supersede the P5’s right to veto substantive decisions of the Council under Article 27(3) of the Charter and the P5’s duty not to use force absent Council authorization or self-defense.

Concluding Thoughts

I am cognizant of the controversial nature of the conclusions I reach in A Duty to Prevent Genocide. However, my intention was not meant to undermine the post-WWII order that has thus far forestalled an apocalyptic third world war. To the contrary, it was meant to bolster the international order by preventing the “crime of crimes,” which may at first begin as a ripple, but which if left unchecked builds into a tsunami that rips apart the very fabric of international peace through the maceration of helpless groups and the inundation of hapless migrants. It is in the vital security interests of not only the “Great Powers,” but also the international community as a whole, to prevent this deluge. And it is in this spirit that A Duty to Prevent Genocide is written.

Moreover, I am confident that any fear that the conclusions reached in the book will somehow weaken the post-WWII jus ad bellum is misplaced. The duty to prevent genocide and its concomitant due diligence obligations are triggered if, and only if, the requisite specific intent to commit genocide is present. As noted above, this dolus specialis may be proven by the general context of the potentially genocidal situation or the existence of a plan or policy on the part of the suspected génocidaires to carry out the mass atrocity. If this dolus specialis is absent, then the aforementioned due diligence obligations, which include unilateral humanitarian intervention as a last resort, are not triggered. As a result, the discharge of the duty to prevent genocide, and all that it entails, is necessarily limited in its application. The prohibition of the use of force under the Charter and custom is still the default rule governing international relations, and with it, the international order.