Symposium: Walking the Fine Line between Apology and Utopia: A Reply to Trahan, Helal, and Schabas on A Duty to Prevent Genocide–Due Diligence Obligations among the P5

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

I want to reiterate my thanks to Opinio Juris and the International Commission of Jurists for holding this thought-provoking symposium on my new monograph A Duty to Prevent Genocide: Due Diligence Obligations among the P5. I especially want to thank Professors Jennifer Trahan, Mohamed Helal, and William Schabas for their respective critiques of my book. All three scholars present serious commentaries on the challenges facing the operationalization of the duty to prevent genocide as applied to the P5. Given the nature of this venue, however, I can offer but a brief reply to each review. As a result, I have identified and addressed one or two issues from each scholar’s review for rebuttal. For further commentary, I kindly ask readers interested in the topic to review my book for themselves and draw their own conclusions.

Reply to Jennifer Trahan. While applauding from a policy perspective my arguments regarding the P5’s duty not to veto anti-genocide resolutions, Professor Trahan incorrectly observes that I “skip[] over whether there should be some kind of ‘trigger’ mechanism to determine when there is a serious risk of genocide occurring that would necessitate that states act on the duty to ‘prevent’ genocide.” I address just such a “trigger” mechanism on pp. 42-44 and 53-56 of my book. For example, on p. 53, I note that the “touchstone for determining whether a serious risk exists is whether the known dangers seem to be of an order that could suggest specific intent to commit genocide.” (Emphasis in the original). On pp. 54-56, I explain that this specific intent, or dolus specialis, may be proven by the general context of the situation in question or the existence of a plan or policy to commit genocide therein. I then conclude that if a state knew or should have known about this dolus specialis, then that state’s duty to prevent genocide is triggered in accordance with its capacity to effectively influence the génocidaires. For this reason, Trahan mischaracterizes my analysis when she states that I simply “skipped over” any discussion of the triggering mechanism for the duty to prevent.

Professor Trahan further errs in her mischaracterization of my analysis of jus cogens. She first questions why I discuss the conventional and customary bases of the duty to prevent genocide in Chapters 1 and 2, respectively, “only to essentially argue that can be outweighed” by jus cogens. She then states that, “in 2 ½ short pages, [Heieck] attempts to demonstrate that the duty to prevent genocide qualifies as a jus cogens norm (pp. 193-95), such that it prevails over all of the conflicts.” Regarding her first comment, it is generally accepted among international legal scholars and practitioners that jus cogens norms must derive from a primary source of law, in particular, customary international law. It is further accepted that custom may be codified, crystallized, or created in multilateral treaties of a fundamentally norm-creative character. For this reason, I discuss both the conventional and customary nature of the duty to prevent genocide in Chapters 1 and 2, an analysis the purpose of which I thought was self-evident. Regarding Trahan’s second comment, it misrepresents my analysis of jus cogens in Chapter 4. In pp. 173-178 of my book, I discuss the historical development of the notion of jus cogens norms. In pp. 178-187, I then discuss the natural law, positive law, and public order theories underpinning the interpretation of jus cogens. In pp. 187-190, I analyze the legal effects of this peremptory law from both a procedural and substantive perspective. And in pp. 190-193, I then attempt to do what Trahan does not – identify the manner in which jus cogens norms are formed in light of the carefully laid foundation presented in the previous 20 pages. This process culminates in a legal (as opposed to a strictly normative) “test” for identifying jus cogens norms, which I then apply to the duty to prevent genocide in pp. 193-195. I conclude by discussing the legal ramifications of the peremptory character of the duty to prevent genocide on the P5 in pp. 195-196, a discussion which reinforces my analysis in the previous chapters, in particular Chapter 1. Despite this detailed discussion of jus cogens in Chapter 4, Trahan claims that “[Heieck] jumps too quickly to reach [his conclusions]”. I will leave it to the reader to divine the veracity of such an observation.

Reply to Mohamed Helal. Professor Helal approaches his critique of my book from the interesting perspective of “territoriality, power, and influence,” but I will focus on the first consideration. Helal criticizes the ICJ’s conclusion in the Bosnian Genocide case that the scope of the duty to prevent genocide under Article I of the Genocide Convention “is not territorially limited.” Helal then claims that, “Dr. Heieck uncritically accepts this conclusion.” While the Bosnian Genocide case was the starting point of my analysis, it is an unfair assessment to state that I “uncritically accepted” the Court’s conclusion regarding the extraterritorial application of the duty to prevent genocide in Article I of the Genocide Convention. On pp. 34-39 of my book, I explain in detail why the ICJ’s adoption of the “capacity to effectively influence” was appropriate (and indeed, required) with respect to satisfying the objective linkage element of the due diligence standard of the duty to prevent genocide. On p. 36, I recall James Crawford’s observation that “[s]uch standards vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation.” I then quote at length the ICJ’s discussion about the object and purpose of the Genocide Convention on pp. 188-189 of the Reservations to Genocide Convention advisory opinion. In particular, I highlight the Court’s conclusion about the “universal scope” of the Genocide Convention and subsequent determination that, “[i]n such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention.” As a result, I argue on p. 37 that, in light of this communal and universal (as opposed to unilateral or bilateral) interest in preserving the high ideals of the Genocide Convention to protect national, ethnic, racial, and religious groups from partial or total destruction, the ICJ was correct in adopting the “capacity to effectively influence,” rather than another notion of linkage under the due diligence standard such as territory, jurisdiction, or control, in describing the scope of the duty to prevent. For this reason, I disagree with Helal’s characterization of my analysis on this point.

I further contend that my position on the extraterritorial application of the Genocide Convention is bolstered, at a more general level, by the non-contractual nature of human rights treaties in the post-WWII era, a fact which Helal appears to overlook in his discussion of the Vienna Convention on the Law of Treaties (VCLT). In arguing that treaties are inherently territorially limited, Helal cites Article 29 of the VCLT, which provides that “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.” A plain reading of Article 29 demonstrates, however, that this provision stands for the proposition that the political subdivisions of a state are just as bound by treaty provisions as the state itself. This is quite a different matter from Helal’s argument that there is a natural territorial limitation on the application of treaties vis-à-vis external actors. (The pacta tertiis rule also does not help Helal’s argument, because, as I discuss in Chapter 2, the duty to prevent genocide is customary rule of international law and therefore binding on all states.) If Helal’s interpretation of Article 29 was correct, then state sovereignty would in effect be absolute, which is simply incompatible with numerous instruments of diplomatic, environmental, humanitarian, and human rights law, which I reference on pp. 29-30 at fns. 83-89, not to mention the sovereignty waiver represented in, inter alia, Article 2(7) of the UN Charter vis-à-vis Chapter VII measures. For this additional reason, I disagree with Professor Helal’s conclusions regarding the extraterritorial application of not only the Genocide Convention in particular, but also human rights treaties in general.

Reply to William Schabas. In his review of my book, Professor Schabas’ primary concern, which is echoed by Professors Trahan and Helal, is about my argument regarding the obligation of the US, as the ultimate bearer of the duty to prevent genocide, to engage in forceful intervention to protect vulnerable groups under threat of or being subjected to genocide, in the event that (a) the Security Council becomes deadlocked as a result of a veto by another member of the P5, or (b) international cooperation fails to collectively prevent or suppress the imminent or ongoing genocide in question. While Schabas’ concern is understandable, I must reiterate the limited application of the duty to prevent genocide in general, and the US’s duty to engage in humanitarian intervention in particular, which I emphasize in my book. The duty to prevent genocide is ultimately triggered if, and only if, there exists a serious risk that genocide is likely to occur. This serious risk is determined by whether the state whose duty to prevent is in question has the requisite knowledge of the existence of the relevant actors’ dolus specialis to commit genocide. This dolus specialis is in turn determined by the general context of the potentially genocidal situation or the existence of a plan or policy to commit the mass atrocity. If evidence of this specific intent is left wanting, then the duty to prevent genocide, and all that it entails, including the US’s duty to engage in humanitarian intervention as a last resort, is not triggered. Thus, while I understand the trepidation associated with any exception to the post-WWII jus ad bellum codified in the UN Charter, I contend that such concerns are overstated in light of both the inherent limitations on the operationalization of the duty to prevent genocide as a matter of law, and the relative rarity of the commission of genocide as a matter of fact in even today’s tumultuous times. For this reason, I am more optimistic than Schabas, Helal, and Trahan about the ramifications of the duty to prevent genocide and its concomitant due diligence obligations on the P5, especially as it relates to their collective duty to cooperate in the face of, and individual duty not to veto resolutions aimed at preventing, imminent genocide. In A Duty to Prevent Genocide: Due Diligence Obligations among the P5, I have attempted to walk the fine line between apology and utopia in reaching this conclusion. I will again leave it to the readers to decide whether I was successful in this regard.