Prevention of Atrocity Crimes: Legal Obligations of States and Due Diligence

Abstract

The conceptualisation of States’ obligations for atrocity prevention, legal and otherwise, has gained increasing momentum as atrocity crimes across the world continue to make seemingly endless headlines. While some States acknowledge that they incur a duty to prevent atrocity crimes; the source, scope, and nature of any legal atrocity prevention obligations remain largely unexplored and controversial. Any extraterritorial dimension to this end is subject to much debate. The International Court of Justice identified such an obligation regarding genocide to be one of due diligence, but its scope remains ambiguous and somewhat unspecific. This paper determines applicable due diligence obligations vis-à-vis atrocity crimes. It argues that States incur not-territorially-limited due diligence obligations for atrocity prevention arising from existing international treaty and customary law. States are thereby required to take reasonable measures to prevent the commission of atrocity crimes in their own territories, and in certain circumstances beyond their borders, as far as possible. The jurisprudence of human rights bodies concerning suppression and positive obligations in international human rights and humanitarian law further supports such atrocity prevention obligations. The paper ends with an examination of possible operational prevention methods to fulfil States’ obligations of atrocity prevention.