Everything within their power : the P5's duty to prevent genocide

Abstract

The corpus of the duty to prevent genocide was partially circumscribed for the first time in a court of law in the 2007 Bosnian Genocide case. In that case, the International Court of Justice adopted the due diligence standard to define the scope of the duty to prevent genocide. This standard provides that if a State has the capacity to effectively influence genocidal actors and the knowledge that there exists a serious risk that genocide may occur, then that State must do everything within its power - everything within the means available to it - to prevent the genocide from occurring. While the Court's holding in the Bosnian Genocide case was an important step in the normative development of the duty to prevent genocide, the Court nevertheless neglected to expound the full extent of the scope of the due diligence standard. For instance, the Court's holding did not address whom among the several States of the international order must act, and how such States once identified must act when the duty to prevent genocide is triggered. This dissertation attempts to do so. First, it provides an overview of the obligations laid out it in the Genocide Convention, and expounds the significance of the due diligence standard in the prevention of genocide. Second, it identifies the central role to be played in genocide prevention by the five permanent members of the Security Council (the P5), which, as the 'great powers' of the international order, have the greatest capacity to not only effectively influence genocidal actors but also to remain informed about imminent or ongoing genocides. Third, it explores the manner in and the extent to which the P5 must act within and without the Security Council when faced with an imminent genocide, as dictated by the due diligence standard. Finally, it analyzes the standing of the duty to prevent genocide under customary international law and dispels, through a conflict of norms analysis, any doubts arising from possible conflicting obligations held by the P5 under the UN Charter, in favor of their ultimate duty to prevent the occurrence of genocidal acts. Ultimately, the findings described in this dissertation have significant consequences for not only the duty to prevent genocide, but also the responsibility to protect doctrine, the responsibility not to veto initiative, and the prohibition of the use of force in general. They go beyond the soft spoken political commitments to protect national, ethnic, racial, or religious groups from what has been considered 'the crime of crimes', to flesh-out the self-standing legal value of the duty to prevent genocide, and the consequences thereof to the international community at large. As a result, Everything Within Their Power: The P5's Duty to Prevent Genocide will be of particular interest to scholars and students of international law and international relations.