17 The Prevention of Genocide as A Jus Cogens Norm? A Formula for Lawful Humanitarian Intervention

Abstract

This chapter discusses the potential for the prevention of genocide – as contained in Article I of the Genocide Convention (1948) – to attain jus cogens status and the implications for humanitarian intervention should this occur. Since jus cogens trump all other substantive norms of international law – and modifies prior jus cogens – the prevention of genocide as a jus cogens norm would overcome the prohibition on the use of force and unlock the door to lawful humanitarian intervention, albeit in a narrow and particular set of circumstances. To explore this theory, the present chapter explores the travaux preparatoires of the Genocide Convention (1948) surrounding the prevention of genocide – which reveals very little foresight with respect to its substantive content; judicial and State practice on the matter (particularly during the 1994 Rwandan genocide) – which reveals that States treat genocide as uniquely special and abhorrent, triggering an obligation to act; and how a jus cogens obligation to prevent genocide – which encompasses humanitarian intervention – might work in practice under present international legal conditions.