The International Legal Responsibility To protect Against Genocide, War Crimes And Crimes Against Humanity: Why National Sovereignty Does Not Preclude Its Exercise (original) (raw)
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The Responsibility to Protect (R2P) norm has spawned a lot academic literature since its formulation in 2001. The focus of these has mainly been on the responsibility to react, the second of the tri-partite continuum that makes up the R2P norm. This is undoubtedly due to the controversial nature associated with military action. This preoccupation ignores the importance of the initial step of R2P – the responsibility to prevent. This is compounded by the fact that presently prevention is mostly focused on the prevention of genocide. This is problematic because state practice in relation to the prevention of genocide usually is to ensure that genocide is occurring before prevention begins. This detracts from R2P’s equal theoretical treatment of genocide, crimes against humanity, war crimes and ethnic cleansing – vastly different crimes. It is my contention that the present level and nature of focus on prevention in international law would undermine the utility of R2P as an instrument to be used by the international community. An individual state’s compliance with R2P within its borders is easy to evaluate; it is in the extra-territorial exercise of R2P that problems arise. This article aims to examine the responsibility to prevent by dissecting the component crimes of R2P and their prevention, examining prevention through the overarching lens of disciplines in international law and the various practicalities that impede prevention. The inclusion of the prevention gross human rights violations in the ambit of R2P is examined as an answer to the difficulties addressed.
Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes
Genocide Studies and Prevention, 2007
has issued its long-awaited decision in the suit filed by Bosnia and Herzegovina against Serbia and Montenegro with respect to the 1992-1995 war. The decision confirms the factual and legal determinations of the International Criminal Tribunal for the former Yugoslavia, ruling that genocide was committed during the Srebrenica massacre in July 1995 but that the conflict as a whole was not genocidal in nature. The Court held that Serbia had failed in its duty to prevent genocide in Srebrenica, although-because, the Court said, there was no certainty that it could have succeeded in preventing the genocide-no damages were awarded. The judgment provides a strong and authoritative statement of the general duty upon states to prevent genocide that dovetails well with the doctrine of the responsibility to protect. The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. 1 It hears disputes between states and issues advisory opinions about legal issues at the request of other bodies within the UN system. All UN member states are parties to the Statute of the Court, which is integrated within the Charter of the United Nations, and are eligible to nominate judges. But the ICJ does not have automatic jurisdiction to hear cases involving those states. A state can only be sued by another state before the ICJ if it has formally accepted ICJ jurisdiction. States may do this by making a general declaration, pursuant to article 36(2) of the Statute of the International Court of Justice, but only about one-third of the members of the UN have done this. Some 300 specific treaties also provide that the ICJ is the venue for settlement of disputes concerning those treaties. Of these, perhaps the best known is the Convention for the Prevention and Punishment of the Crime of Genocide (UNCG), art. 9 of which states, Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. 2 Invoking art. 9 of the UNCG, on 20 March 1993, as war raged on the territory of the former Yugoslavia, Bosnia and Herzegovina filed an application before the ICJ against what was then known as the Federal Republic of Yugoslavia. Bosnia and Herzegovina charged that Yugoslavia ''had breached, and is continuing to breach, its
The international community embraced the norm of responsibility to protect (RtoP) when the 2005 UN World Summit members signed a document enshrining this concept and the General Assembly and the Security Council unanimously adopted Resolution 1674. Further, in January 2009, UN Secretary-General Ban Ki-moon issued a report, Implementing the Responsibility to Protect, which argued for the implementation of RtoP according to three principles: the primary responsibility of the sovereign state to protect its citizens; the international community’s commitment to assist the state in building its capacity to carry out its RtoP; and the timely and decisive international intervention when the sate is manifestly failing to carry out its responsibility. The paper argues that the UN’s attempt to curb genocide, ethnic cleansing, war crimes, and crimes against humanity through RtoP, while admirable, has serious shortcomings and faces formidable challenges that it must overcome if the norm of RtoP is to command universal support as a legal principle that promises realistic application. An example of North Korea is used to illustrate the obstacles.
An Unfulfilled Promise: The Genocide Convention and the Obligation of Prevention
Journal of Strategic Security, 2018
This article addresses the under-theorized dual-mandate of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The Convention was drafted in the wake of the Holocaust and other Nazi genocidal atrocities committed during World War II. The primary mission of the Genocide Convention was to establish a uniform definition of this scourge, and insert its prevention and punishment into the list of obligations states hold within the current international legal regime. Based on the past 70 years, it is clear that the international community has overwhelmingly failed to uphold the Genocide Convention’s prevention mandate. The Convention and its signatories have been more successful in punishing perpetrators posthaste (e.g., the 1940s Nuremburg and Tokyo trials; the 1990s tribunals in the former Yugoslavia and Rwanda; and the International Criminal Court). Eyeing the failure of the international community in Rwanda and the former Yugoslavia, the Canadian government created the International Commission on Intervention and State Sovereignty that created the doctrine of the “Responsibility to Protect” (R2P). The article argues that R2P has filled part of the gaps in the Genocide Convention and allowed states to take affirmative actions to prevent genocide in the modern era (e.g., Libya 2011).
The rules of interpretation of the 1969 Vienna Convention on the Law of Treaties are considered customary law and have been extensively applied by different international tribunals, including in cases involving the commission of the crime of genocide, either before the International Court of Justice or before international criminal tribunals. These rules are not regarded as an exhaustive list of interpretative techniques, but rather as an umbrella set of rules that do not exclude other principles or means compatible with them, and thus, offer enough flexibility to be applied by different fora. This paper examines the manner in which, in the context of genocide cases, the International Court of Justice and international criminal tribunals have resorted to the rules of interpretation in order to identify whether all those tribunals (regardless of their jurisdiction ratione personae) have applied Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Moreover, it analyses whether those articles are equally applicable in cases where the responsibility of the State is under discussion and in criminal cases seeking to determine the responsibility of the individual. It is argued that even though international criminal law is deemed to have caused a change to the traditional paradigm of the international system by bringing the individual to its forefront and causing a rupture in the State-centric logic that had prevailed since its origins, Articles 31 and 32 have proved themselves adaptable enough in order to be applied to the realm of international criminal law.
Curbing Genocide: Overcoming Challenges of Sovereignty, Intervention and UN Politics
Genocide is probably the gravest and most unpardonable crime that man has witnessed during his existence on Earth, and it is of utmost ignominy that it also happens to be one that the human race has failed at miserably in curtailing. While history is rife with references to this gory crime, true legal recognition of Genocide came only after the Second World War ended and the horrors of the Holocaust were laid bare. However, less than seven decades on, then forceful promises and slogans such as ‘Never Again’ seem nothing but hollow myths. The United Nations, a glorious institution designed to foster international peace and security , has been caught up in a disgraceful display of power politics over the years. As Alvarez puts it, even after the formulation of the Genocide Convention in 1948, the new legal developments “either failed to be implemented or were blatantly and cynically manipulated by politicians’ intent on furthering less altruistic goals and agendas.” One of the major hindrances to positive UN action in cases of Genocides over the years has been the lack of clear consensus among nations with regard to the importance held by the doctrines of Sovereignty and Humanitarian Intervention, believed to be contradictory in nature.
Strathmore Law Journal, 2020
States are collapsing and genocidal acts are being committed or may happen any moment. In these instances, states look to the United Nations (UN) to act in order to prevent genocide from happening. This article seeks to determine if there exists an obligation under international law for the UN to prevent genocide, and in that event, can the UN be held responsible under international law for failure to comply with this obligation? This article further analyses these questions by looking at the aspect of Responsibility to Protect (R2P) which elicits an obligation to prevent genocide first to states and then to the UN. At the very minimum, every state must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the case of states failing to undertake this obligation, the UN is bound to step in and undertake this obligation. Hence, this is a responsibility that is an obligation to states first and then to the UN. In summation, this article esta...
The Genocide Convention: a multipurpose instrument or the key to protect human rights?
INTER: REVISTA DE DIREITO INTERNACIONAL E DIREITOS HUMANOS DA UFRJ, 2024
Background Last 26 January the International Court of Justice delivered its order on precautionary measures requested by South Africa in the proceedings instituted against Israel for the alleged violation of the Genocide Convention in relation to Palestines in the Gaza Strip. This is the first of two articles in which we refer first, to the arguments of both parties to the conflict and the provisional decision of the Court, and a future one in which we will analyse the use of the Genocide Convention as the only means that States have to bring before the jurisdiction of the Court, States accused of committing any of the three major international crimes (war crimes, crimes against humanity and genocide). While forms of commission basically overlap, each of the crimes has a clearly defined normative status with its own principles. The work of the Court in recent years in which the Genocide Convention was invoked, involves protecting both the lives of affected civilians and the essence of the historic instrument. At this point, the proof of the special intent to destroy a conventional protected group becomes paramount. Results Results have implications for the on-going processes at the International Court of Justice in which Myanmar, the Russia Federation, Syria and Israel are being accused of violating the Genocide Convention, as well as future situations in which civilians suffered allegedly criminal acts committed by States. Conclusions The case law that the Court is elaborating around the proof of the special intent required, as well about any precautionary measure requested, will be essential to distinguish the crime of genocide from other international instruments that are part of international humanitarian and criminal law, but do not provide - at the moment - access to the jurisdiction of the Court. Keywords: human rights / genocide / provisional measures / responsibility of States