[John Heieck is the Lecturer of Public International Law at the University of Kent, Brussels School of International Studies.]
On 17 March 2016, US Secretary of State John Kerry announced that ‘Daesh is responsible for genocide against groups in areas under its control, including Yazidis, Christians, and Shia Muslims. Daesh is genocidal by self-proclamation, by ideology, and by actions, in what it says, what it believes, and what it does.’
The US’ pronouncement is the latest in a series of such statements over the past year. On 19 March 2015, the Office of the High Commissioner for Human Rights produced a report stating that Daesh, also known as ISIS or ISIL, may have committed genocide against Yazidis, Christians, and Shia Muslims in Iraq. In addition, on 3 February 2016, the Parliament of the European Union adopted a resolution proclaiming that ‘the so-called “ISIS/Daesh” is committing genocide against Christians and Yazidis, and other religious and ethnic minorities, who do not agree with the so-called “ISIS/Daesh” interpretation of Islam, and that this therefore entails action under the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide.’
While there seems to be a growing consensus that Daesh has committed, and is committing, genocide against these ethnic and religious groups in Iraq and Syria, there appears to be disagreement over what, exactly, this designation entails under the Genocide Convention. For example, according to US State Department Deputy Spokesman Mark Toner, ‘acknowledging that genocide or crimes against humanity have taken place in another country would not necessarily result in any particular legal obligation for the United States’. Mr. Toner’s position appears to be based on the belief that the Genocide Convention ‘creates obligations on states to prevent genocide within their territory and to punish genocide’. As evidenced by the ICJ’s holding in the Bosnian Genocide case, however, this is simply not the standard for the duty to prevent genocide under Article I of the Genocide Convention.
Article I of the Genocide Convention provides that ‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’. As the International Court of Justice (ICJ or the Court) noted in the Bosnian Genocide case, the scope of the duty to prevent genocide is determined by the ‘due diligence standard’. The due diligence standard provides that, if a State has the capacity to effectively influence the genocidal actors and the knowledge that genocide is imminent or ongoing, the State has a legal duty to use its best efforts within the means available to it to prevent the genocide from occurring or continuing.
The ICJ described in detail the ‘capacity to effectively influence’ requirement in paragraph 430 of the Bosnian Genocide case. There are three aspects of this requirement that are worth highlighting. First, the requirement is not territorially limited. Instead, ‘[t]his capacity … depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events’. These links include political, military, and financial links between the State in question and the genocidal actors. Second, the requirement incorporates the principle of ‘common but differentiated responsibilities’. As the Court noted in the case, the capacity to effectively influence ‘varies greatly from one State to another’. This means that the more a State can do to prevent genocide, the more a State must do. This, in turn, varies according to the State’s ‘legal position’ vis-à-vis the genocidal actors; meaning, if the State is in a position of influence, such as membership on the UN Security Council, the State has greater capacity to influence the actors in question than non-members because it can pass resolutions binding on all UN member States to prevent the genocide. Third, the requirement imposes a duty to cooperate on all States to bring the genocide to an end. The ICJ emphasized that ‘it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide’. According to the Court, ‘[a]s well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result — averting the commission of genocide — which the efforts of only one State were insufficient to produce’. This form of cooperation is best suited to the UN Security Council, which, as noted above, has the power to bind all UN member States.
As for the ‘knowledge’ requirement, the ICJ noted that ‘a State’s obligation to prevent, and corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’ (Bosnian Genocide case, at para. 431). The Court explained that this awareness, which triggers a State’s positive duty to act, might result from actual (subjective) or constructive (objective) knowledge of the relevant events, which should be interpreted in light of any history of hatred, especially of genocide, between the relevant groups. (See Bosnian Genocide case, at paras. 283, 285, 410, and 436). The Court then observed that, 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 make such use of these means’ to prevent the genocide. (Bosnian Genocide case, at para. 431).
Provided these two requirements of the due diligence standard are met, the State in question has a legal duty to use its ‘best efforts’ – within the means available to it – to prevent the genocide in question. According to the ICJ, ‘it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible’. (Bosnian Genocide case, at para. 430). Moreover, ‘[a] State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide’. (Bosnian Genocide case, at para. 430).
In applying this due diligence standard to the facts of the case, it is clear that the US and others have a legal duty to prevent further genocide by Daesh against the Yazidis, Christians, and Shia Muslims in Iraq and Syria. The question is whether the efforts made thus far have satisfied the due diligence standard. US- and Russian-led coalitions have been pounding Daesh with airstrikes since mid-2014; however, Daesh’s genocidal campaign continues. In addition, according to reports, other States within the region, such as Saudi Arabia, Qatar, and Turkey, have continued aiding and assisting radical groups in Iraq and Syria with arms and munitions despite the genocide against the Yazidis, Christians, and Shia Muslims. Under the due diligence standard, this military aid and assistance must stop. But what more can – and must – the US and others do?
The US, Russia, China, France, and the UK are the five permanent members of the Security Council (P5). In light of their veto rights under Article 27(3) of the UN Charter, these five States have the power to discharge, or disable, the Security Council’s considerable capacity to effectively influence genocidal actors wherever they may be found. In light of the due diligence standard, the P5 must use their best efforts within the means available to them – including their means within the Security Council – to prevent further genocide in Iraq and Syria. This means that the P5, along with the ten non-permanent members of the Security Council, should pass binding resolutions under Chapter VII, which, inter alia, refer the situations in Iraq and Syria to the International Criminal Court, impose arms embargos on Daesh and related groups, and authorize the deployment of a UN peace-enforcing force to the areas in which Daesh is operating. By engaging in such actions, the US and the other members of the P5 will truly be doing everything within their power to prevent genocide in accordance with the due diligence standard.