Symposium: Review of John Heieck, A Duty to Prevent Genocide

[William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international human law and human rights at Leiden University, emeritus professor of human rights law at the National University of Ireland Galway and honorary chairman of the Irish Centre for Human Rights.]

John Heieck has produced a fine study on the duty to prevent genocide. It is concise and accessible. The subject has not before been treated in a stand-alone monograph. The issue has remained much of a mystery since the law of genocide was first codified in the 1940s. The 1946 resolution of the General Assembly entitled The Crime of Genocide invited Member States to enact ‘the necessary legislation for the prevention and punishment of this crime’. It also recommended ‘that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide’. The Convention, adopted two years later, added nothing to the preventive dimension of the law of genocide.

The defining moment, as John Heieck makes clear, was the 2007 judgment of the International Court of Justice in the Bosnia v. Serbia case. It provided important guidance in terms of the obligation of unilateral obligation falling to a single State in a position to take action. The Court spoke of positive obligations on States comprising a duty ‘to do their best to ensure that such acts do not occur’. The Court said that to incur responsibility, ‘it is enough that the State was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed’.

The Court did not specify what ‘doing their best’ meant in practice. The implication was that Serbia had various means of putting pressure on the Bosnian Serbs. Presumably, these would be diplomatic, political and economic in nature. The Court did not refer to military options. Indeed, it seems quite unthinkable that the International Court of Justice would have castigated Serbia because it did not intervene militarily in Bosnia to prevent genocide. Sending Serb troops to Srebrenica in July 1995 was nobody’s idea of a helpful measure.

Thus, the Court did not pronounce itself on the two central questions that John Heieck picks up. The first is the scope of obligations upon States to engage in collective or multilateral actions aimed at preventing genocide. The second is whether such actions may involve the use of force.

Let me start at the end of the book rather than at the beginning. On page 210, Heieck writes that ‘the duty to prevent genocide ultimately falls to the US, which, with its unparalleled economic and military might, has the duty to do everything within its considerable power to prevent genocide, including engaging in military intervention for human protection purposes, if necessary, to protect national, ethnic, racial, or religious groups under threat of or being subjected to genocide’.

This is a very troubling proposition. In most parts of the world, governments and individuals who are sincerely concerned about ways to prevent genocide will shudder at the thought that in the last resort we must turn to the United States to prevent genocide. The world may once have looked to Woodrow Wilson and to Franklin D. Roosevelt for a moral compass. But those days are in the past. It seems unlikely that in the future we will have boulevards and metro stations in Paris named for Trump. Or generations of children named Donald.

The idea that the threat or the occurrence of genocide creates a special regime where the use of force may be authorized outside the legal framework of the Charter of the United Nations has long been mooted, mainly by the United States and perhaps a few of its allies. It has consistently been rejected by the rest of the world.

For example, the original creators of the responsibility to protect doctrine contemplated the possibility of a third exception to the prohibition of force, one that was not explicitly stated in the Charter of the United Nations. But that thesis seems to have been clearly rejected by the General Assembly in 2005 in the unanimous resolution where the responsibility to protect is set out. It declares that States must act collectively to protect against genocide, a notion that is close to if not identical with the prevention of genocide. But they must do so within the confines of the Charter. In 2010, the United States returned to the matter in its efforts at adoption of an ‘understanding’ to the definition of aggression in the Rome Statute. But once again, the idea notion the use of force could be in some way excused by humanitarian motives was resisted. The draft ‘understanding’ was amended, on a proposal by Iran, by the addition of a clear reference to the Charter of the United Nations.

Working back through the book, there is a rich and useful discussion about the special duty imposed upon permanent members of the Security Council to prevent genocide. The idea that their unique position imposes obligations is a solid one. But under the Charter, this obligation must be exercised collectively. That means the permanent members of the Council must be in agreement. And we all know that they do not always agree.

Heieck’s solution is to apply a special rule, whereby a permanent member may not exercise the veto when action by the Council is aimed at prevention of genocide. It is a noble suggestion but one that is surely unworkable. The problem is that just as the permanent members do not always agree about the action that is to be taken, they also do not agree as to whether there is a real threat of genocide of such gravity as to warrant intervention.

It is no secret that the label genocide is often applied, in various contexts, to cases that do not really fit within the definition found in article 2 of the 1948 Convention. It has a political usage that is not necessarily aligned with the legal reality. Attentive international lawyers know that the words in article 2 have been authoritatively interpreted by the International Court of Justice in recent years (twice), as well as by the ad hoc international criminal tribunals. The case law is quite consistent in limiting the scope of genocide to physical destruction of the targeted group. Attacks on groups that do not aim at physical extermination are adequately addressed as crimes against humanity, of course.

But alongside the consistent case law adopting a narrow interpretation of the crime there is a broader use of the term, by NGOs, by journalists, by politicians, and even by UN bodies. For example, recently a fact-finding commission of the Human Rights Council suggested that the persecution of the Rohingya could be characterized as genocide. A few years earlier, another commission of inquiry of the Council said much the same about the Yazidi in Syria. There was a time, some decades ago, where these matters were still open to debate by reasonable people. The reports of the Human Rights Council do not even acknowledge that they apply an interpretation of genocide that is at odds with the case law of the International Court of Justice.

If action by the Security Council is being proposed to prevent genocide, whose definition of genocide will be followed? What if one of the permanent members disagrees about the actual use of the term? Will there not be a tendency by the ‘activist’ members of the Council to favour blurred definitions, especially if they may have other motives going beyond the purely humanitarian? Why, then, should a dissenting permanent member be obliged to stay its veto simply because a majority of the permanent members adopt a different position?

The issue of characterizing the threat is not the only difficulty. The measures of intervention may also be subject to legitimate dispute within the Security Council. In particular, they may not entirely share John Heieck’s enthusiasm for sending the Marines. In recent years, military intervention by permanent members of the Security Council has done little to reassure the world of its humanitarian benefits. The US, Britain and France will try to shame Russia and China if they object to intervention in Syria. But would the US really forgo use of its veto if the proposed risk of genocide was taking place in one of its favourites?

The best part of the 2007 ruling of the International Court of Justice is its suggestion that a meaningful effort to prevent genocide does not require the use of force. The permanent members of the Security Council have the biggest armies and the nastiest weapons. But they have other tools as well. If they are in agreement on the need to intervene, it is surely better to focus on forms of engagement that do not involve resort to force. And it will be easier to reach agreement if the measures proposed do not involve bombs and missiles.