Symposium: On Territoriality, Power, and Influence–A Review of John Heieck’s A Duty to Prevent Genocide: Due Diligence Obligations Among the P5

[Mohamed S. Helal is an Assistant Professor of Law, Moritz College of Law & Faculty Affiliate, Mershon Center for International Security Studies – The Ohio State University.]

Introduction

Dr. John Heieck’s A Duty to Prevent Genocide: Due Diligence Obligations Among the P5 is a lucid, well-argued, and extensively researched book. It is essential reading for academics and practitioners who have an interest in various areas of Public International Law, including jus ad bellum, international criminal law, and state responsibility.

The core argument of this book is that all states are under a duty to prevent genocide, wherever and whenever it may be committed. Dr. Heieck contends that all states are required to cooperate to prevent genocide, including through the competent organs of the United Nations. In particular, the five Permanent Members of the U.N. Security Council (hereinafter the P5) are under an obligation to take effective measures to prevent genocide. In addition, Dr. Heieck claims that the duty to prevent genocide prohibits the exercise of the veto by the P5 on resolutions brought before the Security Council to authorize measures intended to prevent genocide. Moreover, if the Security Council fails to act to prevent genocide, the P5 are under an obligation, both collectively and unilaterally, to intervene, including through the use of force, to prevent imminent or ongoing genocide. While this summary does not do justice to the richness and complexity of the arguments made in this book, it does identify its central claims that I found most thought provoking and that I will engage with in this review.

First: The Territorial Scope of the Duty to Prevent Genocide

A major contribution of this book is that it provides a thoughtful and extensive discussion of the scope and content of the duty to prevent genocide, which, compared to other rules relating to the crime of genocide, has not been the subject detailed judicial discussion and has received relatively limited scholarly attention.

One element of this duty to prevent genocide is its territorial scope. In the Case Concerning the Application of the Convention on the Prevention and Punishment of Genocide (hereinafter the Bosnia Genocide case), the International Court of Justice (ICJ) found that there are no territorial limits on the duty to prevent genocide. Dr. Heieck uncritically accepts this conclusion. While this is understandable given the book’s overall argument that all states bear a duty to prevent genocide everywhere, I would have appreciated greater engagement with and reflection on this finding by the ICJ.

In the 1996 Preliminary Objections stage of the Bosnia Genocide case, the Republic of Yugoslavia argued that it should not be held responsible for failing to prevent acts of genocide that occurred on the territory of a foreign state – i.e. Bosnia – by actors that were not under its control. The ICJ rejected this argument and stated: “the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.” In its 2007 judgment on the merits, the Court reaffirmed this finding by asserting that “[t]he substantive obligations arising from Articles I and III are not on their face limited by territory. They apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question.”

Neither the ICJ nor Dr. Heieck provide sufficient reasoning to support this assertion. Although the Vienna Convention on the Law of Treaties (VCLT) does not directly address the extraterritorial application of treaties, I believe it is safe to argue that the general presumption underlying the law of treaties is that treaties apply territorially. As the VCLT states in Article 29: “unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.” In fact, this provision and the presumption of the territorial application of treaties appeared to be so commonsensical that some states proposed deleting it from the ILC’s draft articles on the Law of Treaties.

Therefore, in order for a treaty to generate extraterritorial obligations it must be shown that either the treaty includes explicit language to that effect or that the treaty’s object and purpose, context, and travaux préparatoires warrant interpreting the treaty as generating extraterritorial obligations. Moreover, since the conclusion of the Genocide Convention, the law of state responsibility and the jurisprudence of the ICJ have established that the responsibility of a state shall be invoked if internationally wrongful acts committed by non-state actors are attributable to the state. The combination of these rules of the law of treaties and the law of state responsibility leads me to argue, contra Dr. Heieck, that the duty to prevent genocide enshrined in Article I of the Genocide Convention generates the following obligations:

• States are required not to commit genocide on their territories through the agents of the state.
• States are required not to commit genocide on territories/locations under their jurisdiction or control through the agents of the state.
• States are required to prevent the commission of genocide on their territories by non-state actors.
• States are required to prevent the commission of genocide on the territory of foreign states by non-state actors over which they exercise effective control. (See generally: Separate Opinion of Judge Tomka here)

Nothing in the Genocide Convention justifies the finding that it generates any additional extraterritorial obligations. Article I of the Genocide Convention does not include any reference to the territorial scope of its application that justifies reading into the convention an extraterritorial obligation to prevent genocide. Both the ICJ and Dr. Heieck have not identified evidence from the travaux préparatoires of the Genocide Convention that supports that conclusion, nor did they provide sufficient explanation of how the object and purpose of the treaty can be interpreted as justifying the conclusion that the duty to prevent genocide applies extraterritorially. Moreover, neither the ICJ nor Dr. Heieck have cited any significant state practice or opinio juris to sustain the claim that an extraterritorial obligation to prevent genocide has emerged in international law. I find the ICJ’s reasoning on this point, which Dr. Heieck’s appears to accept and use as the foundation of his argument, to be an unjustified leap of logic that is unmoored from proper legal reasoning. Even if from a normative perspective it might be desirable to establish an extraterritorial obligation to prevent genocide (or other international crimes), normative desirability does not on its own justify a departure from the established procedures of international lawmaking.

The only potential explanation for the Court’s finding that the duty to prevent genocide applies extraterritorially is the designation of the duties to prevent and punish genocide as obligations erga omnes. But the concept of obligations erga omns is entirely irrelevant to the question of the territorial scope of treaty obligations. Obligations erga omnes, as readers of Opinio Juris know, are owed to the international community as a whole. This means that all states are entitled to invoke the responsibility of a state for an internationally wrongful act that breaches an obligation erga omnes. It also means – although this assertion is not uncontroversial – that all states may take countermeasures against a state that commits an internationally wrongful act that breaches obligations erga omnes. In short, designating a rule as an obligation erga omnes (or as a principle of jus cogens) does not affect or alter its territorial scope and application.

Second: Power, Influence, and the Duty to Prevent Genocide

Instead of placing territorial limitations on the duty to prevent genocide, the Bosnia Genocide case established that states are under an obligation to exercise due diligence to prevent genocide. The ICJ notes that due diligence is a flexible standard the application of which “calls for an assessment in concreto.” Therefore, the ICJ identified a set of factors to determine whether a state has exercised due diligence in preventing genocide. These include “the capacity to influence effectively the action of persons likely to commit, or already committing, genocide.” This “capacity to influence,” according to the ICJ, depends on “geographical distance” from the scene of the events, the “strength of political links” to the state(s)/actor(s) involved in genocidal activity, and “links of all other kinds, between the authorities of that State and the main actors in the events.”

Here is where I fundamentally, and respectfully, disagree with Dr. Heieck. While the ICJ outlined a set of factors to be applied when evaluating whether a state has satisfactorily exercised due diligence to prevent genocide, Dr. Heieck appears to jettison these factors when it relates to the P5. Dr. Heieck argues that because the P5 are powerful states, they are under an “heightened duty to cooperate in order to satisfy the due diligence standard and to discharge their duty to prevent genocide.” Dr. Heieck, it appears, places the P5 are under a permanent obligation to prevent genocide everywhere, regardless of “capacity to influence,” geographical distance, political links, and “links of all other kinds,” which are the parameters set by the ICJ for evaluating whether states have exercised due diligence to prevent genocide. Moreover, Dr. Heieck argues that the United States, as the most powerful state in the international system, is under an obligation to “do everything within its considerable power to prevent genocide, including engaging in military intervention for humanitarian purposes.” In short, for Dr. Heieck, power automatically translates into “capacity to influence.” This assertion is not supported by the ICJ’s judgment in the Bosnia Genocide case, nor does it have any reasonable foundation in customary international law.

In fact, if anything, state practice since the end of the Cold War and since the turn of the century indicates significant reticence to codify any such unlimited obligation on states, especially the P5, to intervene anywhere and everywhere to prevent genocide. Nothing has changed in customary international law to alter or limit the discretion of the Security Council to decide whether and how to intervene to prevent genocide, which Article VIII of the Genocide Convention recognizes. As I have argued here and here, the evolution of the doctrine of the Responsibility to Protect (RtoP), which was adopted in the 2005 UN World Summit, demonstrates that there is little acceptance of an unqualified obligation to forcibly intervene to prevent mass atrocities. If anything, RotP is a ‘Much Ado About Nothing’. It is a doctrine that added nothing to the powers of the Security Council, that did not alter the Security Council’s limitless discretion regarding whether and how to intervene to prevent mass atrocities, and that in no way affected the limitless discretion of the P5 to exercise their veto to prevent proposed Security Council action. In other words, the “international community” (an illusory concept that is more rhetorical than political reality, see here and here) designed and adopted a version of RotP that includes no obligation whatsoever to intervene to prevent genocide and reaffirmed the right of the P5 to exercise their veto and their political discretion regarding which Security Council measures to approve.

Conclusion

In conclusion, I offer two general comments. While I enjoyed engaging with Dr. Heieck’s book, I am troubled by his proposals from a normative and policy perspective. On policy, the US record of humanitarian intervention has been abysmal. So much so, that Michael Mandelbaum describes US foreign policy in the post-Cold War era as a “Mission Failure.” I see no reason to be optimistic about the prospects of more US interventionism in the future. From a normative perspective, Dr. Heieck does not present any justification for why the US (or Britain, China, France, or Russia) ought to put the lives of their women and men in uniform in harm’s way to protect foreigners in distant lands. Let me be clear, I am no fan of the narrow, transactional, and myopic logic of “America First!” However, a claim that the US and the other great powers have an obligation to save strangers must provide a convincing normative narrative on why the populations of those countries ought to sacrifice their blood and treasure for everyone, everywhere. Otherwise, the academy risks operating in a utopian “heaven of legal concepts” that is disconnected from social and political realities.