06 Dec Questioning the Coherence of an Extraterritorial Legal Obligation to Prevent Genocide and Crimes Against Humanity
[Luke Glanville is Associate Professor of International Relations at the Australian National University and author of books including Sharing Responsibility: The History and Future of Protection from Atrocities (Princeton University Press, 2021).]
Extraterritorial obligations for the prevention of genocide and other atrocity crimes have become more firmly established in international law in recent years than is commonly recognized. But such legal developments, while remarkable, are troublingly incoherent.
In its 2007 judgment on Bosnia v. Serbia (hereinafter the Genocide judgment), the International Court of Justice (ICJ) famously found that states parties to the 1948 Genocide Convention have an obligation to prevent genocide even beyond their territorial borders. The Court attributed enormous scope to this obligation. It is an obligation imposed on “any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide” (para 461). And any state with capacity to make any such contribution must “employ all means reasonably available to them” (para 430).
In the years following the judgment, scholars wrestled with its implications. Some cautioned against reading too much into the ICJ’s words, insisting that the Court meant merely to explain why the state whose responsibility was in question, Serbia, was indeed responsible for failing to prevent the commission of genocide beyond its borders, in Srebrenica in 1995, by virtue of its unique capacity to influence the genocidal actors and its failure to take any steps at all to use this capacity. Others, including myself, insisted that, whatever the Court’s intentions, it clearly articulated a demanding obligation that is borne by every state (or at least each of the 150-plus states that are party to the Genocide Convention) with any capacity to contribute in any legally permissible way to the prevention of genocide.
In 2019, the International Law Commission (ILC) adopted a set of draft articles on prevention and punishment of crimes against humanity. It recommended these draft articles to the UN General Assembly and recommended the adoption of an international convention on the subject. This convention would complement the Genocide Convention, expanding the scope of international obligations beyond genocide to include all crimes against humanity.
The ILC’s draft articles replicate and expand upon the Genocide Convention’s provisions for extraterritorial prevention as interpreted by the ICJ in its Genocide judgment. Article 4 of the draft articles asserts, “Each State undertakes to prevent crimes against humanity, in conformity with international law, through … (b) cooperation with other States, relevant intergovernmental organizations, and, as appropriate, other organizations.” In its commentary on the draft articles, the ILC claims that the obligation to prevent crimes against humanity mirrors the obligation of due diligence borne by states with capacity to influence genocidal actors, described by the ICJ in the Genocide judgment, and the obligation to cooperate to this end.
It remains to be seen whether this recommended convention on crimes against humanity will be adopted by states. The General Assembly’s Sixth Committee considered the matter last month (October 2021), where numerous states asserted a need for further dialogue.
These legal developments concerning extraterritorial obligations to prevent atrocities might be seen as grounds for hope; hope that law might be developing in the direction of justice and that states might be increasingly compelled to do what they can to protect vulnerable people beyond their borders. However, I am primarily struck by the lack of coherence of these legal developments, and the impossibility of their realization, given the world as it is.
In my book, Sharing Responsibility: The History and Future of Protection from Atrocities, I explain that obligations to prevent atrocities beyond borders are rightly understood as “imperfect duties.” They are imperfect in at least two senses. The first might be labeled the “which state” issue: It is often unclear which state or states are obliged to act to prevent atrocities in a given case. The second might be labeled the “which crisis” issue: Given that, at any given moment, every state is confronted with a plurality of crises, vulnerabilities, and inequalities beyond their borders that they may feasibly seek to ameliorate, it is difficult to conceive how any particular state can be held responsible for failing to choose to devote its resources to a particular extraterritorial situation of concern.
In its Genocide judgment, the ICJ in a sense sought to “perfect” the imperfect duty to prevent genocide beyond borders, by clarifying the nature and scope of the extraterritorial obligation and declaring it to be legally binding. In its draft articles, the ILC seeks the same for crimes against humanity. But their efforts raise more questions than they answer.
The ICJ offered an answer to the “which state” question in its Genocide judgment: The scope of each state’s obligation is determined by its “capacity to influence effectively” the genocidal actors without breaching international law (para 430). However, this is ethically problematic. As others have observed, grounding the distribution of obligation in the capacities of states imposes an unfair burden on those that have diligently cultivated capacity for extraterritorial protection and creates disincentives for others to do the same, thus amplifying an already existing problem of free-riding.
It also ignores the possibility that particular states may bear a particular obligation to respond to a particular crisis on the grounds that they are culpable for contributing to the establishment of conditions that left people vulnerable to the perpetration of such crimes. This may take the form of long-term culpability, such as that of a former colonial power, or short-term culpability, such as that of those who invaded Iraq in 2003 and contributed to the vulnerability of Iraqi citizens to Islamic State’s genocidal plans, or even the systemic culpability of wealthy and powerful states that have developed and benefited from global practices of economic exploitation and climate destruction that heighten the risk of atrocity crises in poorer and weaker states. Considerations of capacity surely need to be weighed against considerations of culpability when distributing the obligation to prevent atrocities among states in any given instance. But it is doubtful whether such principles of distribution could be made subject to legally enforceable formulas that would command widespread support.
The “which crisis” issue is even more difficult to overcome. In every instance where a state has an opportunity to contribute to an international effort to prevent atrocities, that state must weigh what they owe to the potential victims of those crimes against not only what they owe their own citizens but also what they owe other people at risk of atrocities or other forms of suffering or disadvantage elsewhere in the world. It is not enough to say that a state ought to take “all measures … within its power,” as the ICJ put it in the Genocide case. That leaves unaddressed the question of to where states should allocate their attention and resources. We might be able to conceive of a range of principles that can fruitfully guide states seeking to justly prioritize their various global responsibilities – principles of effectiveness, urgency, or severity of need, for example. But even with such principles in hand, states would still need to exercise practical judgment. It is hard to conceive how such judgment could be made subject to law.
Some powerful states with substantial capacity to contribute to extraterritorial protection efforts have expressed discomfort the ILC’s framing of the extraterritorial obligation to prevent crimes against humanity for similar reasons. In 2019, the United Kingdom called for more detail on what the obligation actually requires, worrying that, if it is indeed akin to the broad duty established in the Genocide judgment, it risks placing excessive burden on states, and creating disputes among states. The United States expressed concern that the obligation to prevent, as expressed in the ILC’s draft articles, risks creating “an unclear array of specific requirements,” which “would pose an undue burden on States in implementing the convention and could discourage States from ratifying it.”
What then should we hope for from international law when seeking to encourage states to protect populations beyond their borders from mass atrocities? It is certainly important that duties to refrain from inciting or perpetrating atrocities are codified in law and enforced where appropriate – and this, it should be acknowledged, is the primary concern of both the Genocide Convention and the ILC’s proposals for a convention on crimes against humanity. There is also value in having laws requiring action from states in situations where they have a particularly unique and straightforward opportunity to prevent atrocities beyond their borders. The ICJ’s judgment that Serbia failed in its duty to exercise its capacity to prevent genocide perpetrated by Bosnian Serb forces in Srebrenica was a good example of the application of such laws.
But it is hard to conceive how the demanding obligations suggested in the judgments of the ICJ and the work of the ILC could be coherently applied to crises requiring complex or risky or costly extraterritorial action from states, much less how these laws could be further developed to require states to respond to the multiple and diverse crises, threats, and vulnerabilities that confront the global community at a given time. The development of such law would require far greater institutionalization of the distribution of global obligations than we have at present. There exists little appetite among states for the development of such institutions.
The way forward in generating positive action from states confronted with the threat or perpetration of mass atrocities beyond their borders, in all but the most clear-cut cases of direct influence, would seem to lie, at least for now, not in the further development of law but in the further spread and internalization of shared political understandings of the need to contribute to concerted global efforts to prevent atrocities.