11 Dec Symposium: Heieck Asks the Right Questions
[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]
John Heieck is asking the right questions in his new book, A Duty to Prevent Genocide: Due Diligence Obligations Among the P5. Namely, how does one reconcile hard law legal obligations regarding the duty to “prevent” genocide with the inaction seen out of the UN Security Council as well as other States Parties to the Genocide Convention? His analysis is particularly useful in explicating what the law requires of states as to the duty to prevent genocide, although, to this author, he ultimately makes too much of a case for military intervention/humanitarian intervention, including on a unilateral basis. Also, to focus on the crime of genocide carries risks that states will then increasingly prevaricate as to whether genocide is occurring, or deny it outright (as they periodically have in the past—Heieck, in fact, points out states’ efforts not to call the Rwanda genocide a “genocide,” for fear they would have to do something about it, pp. 101–03). Thus, he illustrates the downside of focusing only on the crime of genocide and not also on crimes against humanity and war crimes. All three crimes are jus cogens norms, and Heieck’s citation (p. 6) that genocide is the “crime of crimes” is outdated—as it is generally recognized that all three crimes can manifest in horrific ways and there is no hierarchy amongst them. Notwithstanding, Heieck’s book makes a valuable contribution to the discussion of this important topic—why the hard law legal obligations related to the crime of genocide are still not being respected or operationalized. On this year, which marks the 70th Anniversary of the Genocide Convention, such focus is particularly warranted.
His first chapter examines the duty to “prevent” genocide found in Article I of the Genocide Convention, as explored in the International Court of Justice (“ICJ”) decision in the Bosnia v. Serbia case. There, the court found the duty to “prevent” genocide violated by Serbia in the face of genocide by Bosnian Serb troops (VRS) in Srebrenica. The Court determined that the Genocide Convention imposes a standard of “due diligence,” which varies based on a state’s “capacity to influence.” The Court, as Heieck notes, also found no territorial limitation to the obligation to “prevent” genocide, pronouncing on obligations Serbia held, and violated, as to genocide occurring in another state, Bosnia.
Heieck then observes (appropriately) that this due diligence standard would impose obligations on all permanent member of the UN Security Council, as they are all parties to the Genocide Convention (p. 29). He concludes, given the ICJ’s holding that states must “employ all means reasonable available to them, as to prevent genocide,” that this obligation carries over to states on the Council in “considering, negotiating, proposing and ultimately voting upon draft Security Council resolutions” (p. 49, see also p. 209); he ultimately concludes it also imposes an obligation for permanent members not to veto a Security Council resolution aimed at preventing genocide (pp. 7, 65). (See my similar remarks questioning veto use in such circumstances.) He additionally discusses, in the event of a veto, that the remaining non-vetoing permanent member must cooperate outside the context of the Security Council to discharge their duty to prevent genocide, a duty in fact shared by all States Parties to the Genocide Convention (pp. 25–27). Heieck’s first chapter is persuasive in its analysis of what is required under the ICJ’s Bosnia v. Serbia decision, although, this author does not share his call, at the very end of the chapter, for unilateral use of force, particularly by the US (p. 67).
In Chapter 1, Heieck also skips 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. He notes the ICJ’s finding that a state’s duty to prevent genocide commences when the state (or state actors) know or should have known of the “existence of a serious risk that genocide will be committed” (p. 52). But what if a state disagrees as to whether there is such a serious risk of genocide or intentionally denies it? When Heieck discusses all the measures that Security Council member states should do their best to utilize, including under UN Charter Articles 41 and 42 (p. 64), he appears to assume all 15 member states serving on the Council agree that there is such a risk of genocide so their duty has been triggered. In fact, it is more likely states would hold no such shared view. Certainly, the ICJ may, after-the-fact, adjudicate this issue, as it did in the Bosnia v. Serbia case, but that happened when the genocide in Srebrenica was over; yet, steps to “prevent” genocide need to be undertaken while it is occurring, or, ideally, before it commences—in which case, there will not be the benefit of an ICJ ruling to determine that the duty has been triggered.
Heieck’s introductory remarks to the book (esp. pp. 3–5) are a bit puzzling in their focus on the problematic use of the responsibility to protect (“R2P”) in Libya, and the lack of R2P in Syria. As to Libya, he focuses on the perception, particularly by Russia and China, that the Security Council’s force authorization was exceeded; one might alternatively or additionally have focused on the intervention leaving Libya a destabilized state, so it was hardly an operational success. His book, however, is about the crime of genocide, so a more appropriate background would have centered on Rwanda, Srebrenica, the “Anfal” campaign against the Iraqi Kurds, Darfur, the Rohingya, as well as the Yazidis (some of which he at least mentions).
His second chapter attempts to demonstrate that the “duty” to prevent genocide is also customary international law. Rather than arguing there exists both state practice and opinio juris, he argues that in situations of “fundamental importance” customary international law can be shown by opinio juris alone, relying on the ICJ’s Nicaragua case. He grounds his showing of opinio juris on a useful compilation of resolutions of the General Assembly and Security Council, recommendations of the Secretary-General, and declarations of other UN bodies (pp. 105–10). Whether or not his analysis is persuasive, this chapter appears less than necessary: first, the Genocide Convention is widely ratified, so the obligation to “prevent” genocide has a clear treaty source for most states; second, Heieck mainly focuses his book on the rights and duties of the permanent members of the Security Council (“P5”)—yet, because all are parties to the Genocide Convention, this chapter is unnecessary as to them.
This author, however, disagrees with Heieck’s consistent trouncing, in Chapter 2 and elsewhere, of R2P as not having legal value (e.g., pp. 72, 111). Why he needs to engage in that attack is unclear, since the goals of preventing genocide and the goals behind R2P would generally align. Moreover, his attack that R2P lacks legal value is unwarranted, since, at minimum, there are hard law legal obligations underlying R2P, including those created under the Genocide Convention. While not all of R2P can be characterized as “hard law,” it certainly has hard law foundational roots, including those created under various Geneva Conventions (see my speech on this topic). (Heieck may be attacking R2P to make his argument that the omission of a duty to prevent genocide from the World Summit Outcome document is not fatal to the duty morphing into customary international law (p. 118)—but that also appears unnecessary, as one omission would not necessarily undermine the formation of customary international law.)
Chapter 3 focuses primarily on what he perceives as a conflict between, the P5’s duty to prevent genocide and the P5’s rights under Articles 39, 41, 42, and 27(3) of the Charter (pp. 153–57). He also finds a conflict between the P5’s duty to prevent genocide and the prohibition on the use of force, particularly UN Charter Article 2(4) (pp. 157–65).
There are other ways one might conduct this analysis. Another approach could have been to try to harmonize treaty obligations and those under customary international law (as well as jus cogens) with obligations under the UN Charter. Such a “harmonization” approach, for example, is suggested by recent jurisprudence from the European Court of Human Rights, such as the Al-Jedda and Al-Dulimi cases, where, when faced by an apparent conflict between obligations created under a Security Council resolution and obligations created under the European Convention, the European Court of Human Rights tries to harmonize the two. Utilizing such an approach, one might argue that one should not read the UN Charter and a treaty as foundational as the Genocide Convention as conflicting, but harmoniously.
Chapter 4 turns to resolving all of these perceived conflicts. Initially, Heieck examines Article 103 of the UN Charter, leading him to conclude that obligations created under treaties and customary international law are outweighed by obligations created under the UN Charter, unless the former also rise to the level of jus cogens. (p. 172). This then makes one wonder why he conducted all the analysis in Chapters 1 and 2—that the duty to prevent genocide is treaty-based and customary international law—only to essentially argue that all of that can be outweighed. Then, in 2 ½ short pages, he 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. While this is an appealing conclusion, he jumps too quickly to reach it, when clearly not all provisions of the Genocide Convention constitute jus cogens—for example, states still take reservations against certain provisions, such as Article IX (submitting disputes to the ICJ).
In a similarly brief analysis, he argues that the prohibition of the use of force is replaced by the prohibition of aggression, and concludes there is thus no longer a norm conflict, because the jus cogens norm of the duty to “prevent” genocide can outweigh the previously recognized jus cogens norm regarding use of force. While I admit there is ambiguity regarding precisely how to frame the jus cogens norm related to the prohibition on the use of force (e.g. is it co-extensive with Article 2(4), or Article 2(4) plus Chapter VII plus Article 51, etc.), there is a recognized jus cogens norm. The duty to prevent genocide, however, has not been previously recognized. Thus, in the event of a norm conflict, the outcome would probably go the other way. Thus, his attempt essentially to outweigh Article 2(4) by the duty to “prevent” genocide is somewhat tenuous (ergo, also the support for unilateral intervention). And this author wishes he had devoted further attention to trying to prove that the duty to “prevent” genocide is jus cogens—as that point ultimately becomes critical to all his arguments.
In the end, at least for this author, Heieck makes too much of a case for unilateral use of force. Moreover, he singles out the US “with its unparalleled military and economic strength” as the “ultimate duty-bearer” (p. 7). While a case for humanitarian intervention can be made (and I have sometimes made it), it will not attract the support of more than a few states, albeit some prominent states. Furthermore, it is generally agreed among states that support humanitarian intervention that collective action (either through a regional actor or through a coalition) would be preferable to unilateral action. (Heieck does mention the possibility of collective action, although in the end also endorses unilateral action.) Moreover, given the current US leadership, any invitation for unilateral use of force appears particularly perilous (and, if one cannot risk making such arguments at a perilous time, then perhaps that reveals the weakness of making such arguments).
A better approach could be to craft a legal argument that would have broader appeal to the international community as a whole—for instance, questioning the legality of veto use in the face of genocide, crimes against humanity, and/or war crimes, as this author does (and will explore more fully in her upcoming book). Heieck does question the legality of veto use in the face of genocide, and that part of his book, to this author, has the most appeal, as well as his exploration of what is required of states serving on the Security Council to fulfill their duty to “prevent” genocide (p. 209). A minor additional quibble pertains to Heieck’s extensive reliance on US law; again, to craft an argument with broader appeal, one should ground it primarily in international law.
Ultimately, this author does not share Heieck’s conclusion and takes issue with some arguments. Yet, Heieck contributes to the dialogue that we need to be having. Namely, how can there be legal protections such as the obligation of states to “prevent” genocide, well-elucidated in the ICJ’s Bosnia v. Serbia case, and still, on the 70th Anniversary of the Genocide Convention, ongoing genocide against the Rohingya? He is certainly looking in the right place when he singles out the problem of unrestrained veto use by the permanent members of the UN Security Council. I also appreciate his argument that one should not only look to states serving on the Security Council but more broadly at least to all States Parties to the Genocide Convention to satisfy the duty to prevent genocide. More scholarship should focus on these questions—not only as a matter of international law, but in terms of operationalization in order to narrow the alarming gap between protections under international law and the scant protections too often accorded those on the ground.