Legal note on "The obligation of States to prevent genocide"«

Legal basis

The key treaty in international law concerning genocide is the Convention on the Prevention and Punishment of the Crime of Genocide, adopted in 1948 and ratified by more than 150 States. International courts have recognized that the Convention sets out principles forming part of general customary international law, including the prohibition of genocide, the obligation to prevent the crime of genocide, and the obligation to punish it.[1].

Article I of the 1948 Convention states that« The Contracting Parties undertake to prevent and punish the crime of genocide »"[2]. The wording of this provision has an autonomous scope: prevention is an obligation distinct from repression, which is required even if no genocide has yet been committed.

In his ruling Bosnia and Herzegovina vs. Serbia and Montenegro, The ICJ confirmed the obligation for each State to prevent the crime of genocide« has normative scope and is binding in nature »"[3] The Court further clarified that the obligation to prevent this crime is a specific international legal obligation (distinct from the obligation to repress genocide), which applies independently of any State responsibility in the commission of the genocide itself.[4] It also emphasized that this is an obligation of means (of« behavior »" and not of result: the State is not obliged to guarantee that genocide will not take place, but must make every reasonably available effort to prevent it[5].

This obligation is considered to have value erga omnes partes Each State Party to the Convention has a legal interest in ensuring that the obligation of prevention is respected[6]. It has also been described as an obligation erga omnes insofar as it protects the fundamental values of humanity, which allows any State to claim respect for it[7].

The scope and consequences of the obligation

The ICJ clarified that the obligation to prevent genocide arises as soon as a serious risk of genocide is, or should have been, known to the State. This knowledge may be direct, through available information, or indirect, through indications sufficiently serious to alert a reasonably diligent government.[8] Once this risk is established, the State must act.« within the limits of its resources »" And "« depending on its capacity for influence » on the actors involved[9]. The expected measures vary depending on the specific situation:

• Diplomatic pressure[10]
• Suspension of military or economic aid[11]
• Cooperation with international mechanisms (e.g., reports to the Security Council, participation in peacekeeping missions)
• Implementation of sanctions or embargoes[12]

In the case Bosnia and Herzegovina vs. Serbia and Montenegro, The ICJ held that Serbia had failed in its duty to prevent genocide because it had means of influencing the Bosnian Serb authorities and should have acted to prevent the genocide committed in Srebrenica.[13] The Court also found a violation of the obligation to cooperate with the International Criminal Tribunal for the former Yugoslavia.[14].

This case law was confirmed and updated by the ICJ in the case Gambia vs. Myanmar, in which the Court recalled that the State must take all measures within its power to prevent the commission of acts of genocide, even when these are committed by non-state actors or on the territory of another State[15].

In the case Nicaragua v. Germany, Nicaragua brought a case before the ICJ seeking provisional measures against Germany, arguing that its supply of arms to Israel could expose Germany to a risk of violating its obligations to prevent the crime of genocide in the Gaza Strip. The ICJ examined whether the level of risk and the elements of prevention involved were present. The order rejected Nicaragua's request for provisional measures, finding that the circumstances did not warrant the exercise of its power to indicate provisional measures.[16] Nevertheless, the Court reiterated the serious and autonomous nature of the obligation of prevention, including for third States with regard to the transfer of arms to parties to an armed conflict.[17].

The obligation to prevent therefore entails two major consequences:

• International responsibility in case of breach : a State which fails to act in the face of a serious risk of genocide may be held responsible, even if the genocide has not actually been committed, provided that it has manifestly failed to implement the measures for the prevention of genocide which were within its reach, and which could have contributed to preventing it[18].
• Collective dimension : the obligation is part of a logic of solidarity and community. Any State can take initiatives to prevent genocide, and the Convention establishes the legitimacy of concerted actions within the UN or regional organizations[19].

In short, the obligation to prevent genocide is a mandatory, autonomous obligation with an effect erga omnes and a practical scope: it requires States not only to refrain from complicity, but above all to act actively in the face of any risk of genocide.

1. See, for example, ICJ, Reservations to the Convention on the Prevention and Punishment of Genocide, opinion, 28 May 1951; ICTY, Krstic judgment, 2 August 2001; ICTR, Semanza judgment, 15 May 2003. ↑
2. Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, Article 1. ↑
3. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)), Judgment, February 26, 2007, § 427. ↑
4. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)), Judgment, February 26, 2007, § 427. ↑
5. Ibid., § 430. ↑
6. Ibid., § 420. ↑
7. ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, 5 February 1970, § 33; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)), Judgment, February 26, 2007, § 431. ↑
8. Ibid. ↑
9. Ibid., § 430. ↑
10. Ibid., § 431. ↑
11. Draft Articles on State Responsibility for Internationally Wrongful Acts, 2001, Article 16; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, February 26, 2007, § 420. ↑
12. SCHABAS (W.), Genocide in International Law, 2nd edition, 2009, pp. 531-540. ↑
13. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, February 26, 2007, §§ 438-439. ↑
14. Ibid., § 448. ↑
15. ICJ, Implementation of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar), Order, precautionary measures, January 23, 2020. ↑
16. ICJ, Alleged breaches of certain international obligations relating to the occupied Palestinian territory (Nicaragua v. Germany), Order, precautionary measures, April 30, 2024. ↑
17. Ibid, §24. ↑
18. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, February 26, 2007, §§ 430-431. ↑
19. ICJ, Implementation of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar), Order, precautionary measures, January 23, 2020, § 41. ↑