The wrongful act, and therefore also the consequences attached thereto under international law, arise at the moment that the duty to prevent is breached. In this section the relevant rules of the law of state responsibility related to the invocation and consequences of such a breach will be discussed. It is acknowledged that these rules are imperfectly drafted for the purpose of dealing with the complex situations that arise related to the (breach of) the duty to prevent genocide. However, before these imperfections can be addressed in the concluding part of this article, it is necessary to first discuss the relevant rules in the ARSIWA.
Legal Consequences of a Breach of the Obligation to Prevent Genocide by Territorial States Before Genocide Occurs
ARSIWA distinguishes two categories of consequences: the ordinary legal consequences of the breach of international obligations and the particular consequences of serious breaches of international obligations. Both will be discussed in relation to how they can be applied to the breach of the obligation to prevent genocide before genocide occurs. The ordinary legal consequences of the breach of an international obligation are the obligation to cease the wrongful act, the obligation to offer assurances and guarantees of non-repetition and the obligation to make reparation for the damage caused.Footnote 61
The obligation to cease the wrongful act concerns both actions and omissions contrary to what is required by the international obligation.Footnote 62 The only conditions that need to be met for this obligation to be sought are that (1) the breach must occur at the time the obligation concerned is in force and that (2) it is still so at the time the obligation of cessation is sought.Footnote 63 When applied to the obligation to prevent genocide before genocide occurs, the obligation to cease the wrongful act may for instance concern the obligation of a territorial state to cease the omission to enact necessary laws or other necessary measures, to abolish laws and other measures that are contrary to what is required by the obligation to prevent genocide and to cease to condone, authorise or commit crimes that may lead to genocide. Undoubtedly, since the function of the obligation to cease the wrongful act is ‘to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule’,Footnote 64 the obligation to cease these acts before genocide occurs is intended to stop the violator from continuing the violation. This may lead to the non-occurrence of genocide and thus gives effect to the relevant primary norm to prevent genocide. In other words the obligation to cease the wrongful act does not only entail the duty to stop an actual genocide, but also to cease acts or omissions that may lead to genocide.
Under Article 30(b) of the ARSIWA, a state responsible for the breach of an international obligation is under an obligation to offer assurances and guarantees of non-repetition.Footnote 65 As the ILC has commented, the focus of this obligation is the prevention of future breaches.Footnote 66 They are sought when there are reasons to believe that the mere cessation of the breach does not suffice to ensure that it will not be repeated.Footnote 67 The ILC did not expressly lay down conditions that need to be met before its invocation, but decided to add the rather vague formulation ‘if circumstances so require’.Footnote 68 The ILC justified this addition to prevent abusive or excessive claims.Footnote 69 In the literature three elements have emerged that need to be taken into consideration: the risk of repetition, the seriousness of the breach and the character of the obligation breached.Footnote 70 No indication is given, however, as to whether these elements are cumulative or alternative.Footnote 71 Most likely, the occurrence of either of them would suffice to meet the ‘if circumstances so require’ test.Footnote 72 In case of a breach of the obligation to prevent genocide before genocide occurs, offering assurances and guarantees of non-repetition would meet the object and purpose of the obligation to prevent repetition. Nevertheless, it is difficult to draw a general rule on this; the risk of repetition would have to be evaluated on a case-by-case basis.
With regard to the seriousness of the breach, it is irrelevant to treat it separately from the one on the character of the obligation breached since the obligation to prevent genocide arises under a peremptory norm of general international law. Hence, for instance, the failure of a territorial state to enact and apply necessary legislation to prevent genocide, the adoption of legislation that incites genocide, or its failure to repeal such legislation, may arguably meet the two elements and therefore may give rise to requiring the responsible state to assure and guarantee that it will not repeat this in the future. The appropriateness of such assurances must again be established on a case-by-case basis. For instance, in Bosnia v. Serbia the ICJ did not order Serbia to assure and guarantee non-repetition in response to the concerns expressed by the applicant that movements in Serbia calling for genocide may not have disappeared. The court concluded that the indications provided were not a sufficient ground for requiring guarantees of non-repetition. As far as the breach of the duty to prosecute was concerned, the ICJ concluded that its declaration on Serbia’s breach and continuing duties in this respect was sufficient and did not require further assurances and guarantees of non-repetition.Footnote 73 In any case, what is aimed at is the non-repetition of the breach. If that can be achieved through other legal consequences, the appropriateness of assurances and guarantees would be lost.
Under Article 31 of the ARSIWA, a state which has breached an international obligation is under the obligation to make full reparation for the injury caused.Footnote 74 The injury may be material or moral and must have been caused by the wrongful act of the responsible state. In order to apply this to the breach of the obligation to prevent genocide the important question arises whether any material or moral damage is inflicted before genocide occurs. The examples given above on the omission to enact necessary laws to ban genocide or the enactment of laws that may encourage, condone or authorise genocide are relevant here as well. Would it for instance be impossible to say that the Law for the Protection of German Blood and German Honour, which proclaimed the superiority of Germans over Jews and prohibited marriages between them and Germans, did cause injury to the Jews before the Holocaust?Footnote 75 It may not only have morally affected the Jews, but material damage was clearly suffered by, for instance, Jews who decided to flee the country. However, it may be impossible and unnecessary to determine here the exact extent of the injury because it will depend on the circumstances in each case. It suffices to say that the wrongful act of not preventing genocide may give rise to the obligation to make reparation before genocide happens. In each case the existence of the injury and the causal link between the wrongful act of the responsible state will have to be determined.
Article 41 of the ARSIWA sets out three additional (particular) consequences for all states in case of serious breaches of obligations arising under a peremptory norm of general international law. Those consequences are the obligation to cooperate to bring an end to serious breaches, the obligation not to recognize as lawful a situation created by them, and the obligation not to render aid or assistance in maintaining a situation created by them.Footnote 76 For these particular consequences to apply, two criteria set out by Article 40 must be met. The first requires that the breach arises under a peremptory norm of general international law.Footnote 77 The second qualifies the intensity of the breach, which must have been serious in nature.Footnote 78
With regard to the first criterion, there is no longer any question that the rules regarding the prohibition of genocide are considered to be peremptory norms. As argued earlier,Footnote 79 this includes the duty to prevent genocide and a breach of this obligation is clearly ‘arising under a peremptory norm’, also when it arises before genocide occurs or never occurs.
As for the second criterion, such a breach is considered serious if it involves a gross or systematic failure by the responsible state to fulfil the obligation.Footnote 80 The word ‘serious’ signifies that a certain order of magnitude of the violation is necessary.Footnote 81 For a violation to be systematic, it would have to be carried out in an organized and deliberate way.Footnote 82 The term ‘gross’ refers to the intensity of the violation or its effects, denoting violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule.Footnote 83 While some acts or omissions by territorial states which breach the obligation to prevent genocide may meet the test of seriousness and would therefore not lead to problems in applying this provision, for less serious breaches problems may arise. Before entering into a discussion on this, it should be noted that the aim should not be to expatiate on how to distinguish between less serious breaches and serious breaches, but to wonder whether such distinction is helpful or necessary given the nature of the value to be protected.
Taken literally, the ILC seems to have provided in Article 41 that particular consequences may not be applicable to breaches that do not meet the seriousness test. This position has been questioned and criticized in the literature. For instance, in providing the example of the hostage-taking of the American and consular staff in Teheran and their subsequent detention, Nina Jørgensen, reasoning a contrario, wondered whether other states could recognize such an act as lawful and could aid or assist in maintaining that situation since it was not a gross and systematic breach arising under a peremptory norm.Footnote 84 Though this example given by this author is somewhat different from what is being discussed here, it nevertheless helps to understand the problem of the limitation of the particular consequences to only serious breaches.
Paola Gaeta’s criticism is even more persuasive and is more related to the discussion here. She found no good reasons for the additional consequences not to apply to less serious breaches of international law that protect the fundamental interests of the international community as a whole.Footnote 85 She based her argument on the premise that the ILC itself recognizes that jus cogens rules are ‘substantive rules of conduct that prohibit what has come to be intolerable because of the threat it presents to the survival of states and their people and the most basic human values’,Footnote 86 and therefore even in a less serious breach of a jus cogens norm, states would still be obligated not to recognise it as lawful and not to aid or assist in maintaining the situation created by that breach and to cooperate in putting an end to it.Footnote 87 The possible adoption of laws similar to the Law for the Protection of German Blood and German Honour, which proclaimed the superiority of Germans over Jews and prohibited marriages between them and Germans, provides an example that can explain the necessity to apply those consequences.Footnote 88 Another example is a situation in which a territorial state (in which clear tensions between racial or ethnic groups exist) organises a census aiming at the listing of people belonging to a targeted group in order to transfer that group to a place where they might be killed. Would other states be free to recognise this as lawful and would they be allowed to assist? Should they not instead cooperate in ending such a conduct? Similarly, if such a territorial state starts to build concentration camps, or starts to train militia whose members belong to one (ethnic or racial) group that will likely be used to kill another (targeted) group, would other states recognise that as lawful and would they aid or assist in that training? Likewise, would other states recognise as lawful the act of a group of individuals that overthrows a government with the aim of preparing for genocide (but before serious acts are carried out) if that can be surmised from some particular circumstances?
Undoubtedly, the scenarios in all these examples are in violation of the rules prohibiting genocide which are jus cogens. They constitute a breach of the obligation to prevent genocide. Although they might not yet meet the test of serious breaches, they arguably deserve the additional particular consequences because of, as Gaeta has noted, the ‘extraordinary importance of the interests protected by all rules of jus cogens’,Footnote 89 regardless of the level of gravity of the breach.
It can thus finally be argued in line with Gaeta’s argument that in addition to the ordinary consequences of the breach of the obligation to prevent genocide as an ‘ordinary’ wrongful act, the additional particular consequences of such a breach arising under a peremptory norm would also be applicable. The obligation to cooperate in ending the breach should be understood as involving measures that are proportionate to the seriousness of the breach. The other consequences (the obligations of non-recognition and not to render aid or assistance) are even clearer since it would be absolutely illogical to maintain that states would be allowed to recognise the situation that is created by those breaches or to render aid or assistance to the responsible territorial state which would be clearly in violation of Article 16 ARSIWA.Footnote 90 Any breach arising from jus cogens norms should be considered as serious and therefore the particular consequences should be applicable. But who may invoke such responsibility against a territorial state and claim the legal consequences thereof? This will be dealt with next.
The Invocation of the Responsibility of Territorial States for the Breach of the Obligation to Prevent Genocide
Under Article 48(1)b of the ARSIWA, any state other than the injured state is entitled to invoke the responsibility of another state if the obligation breached is owed to the international community as a whole.Footnote 91 Paragraph 2 of the same article adds that any state entitled to invoke the responsibility may claim from the responsible state either the cessation of the breach, assurances and guarantees of non-repetition, or the performance of the obligation to make reparation.Footnote 92
Theoretically, since the obligation to prevent genocide is owed to the international community as a whole, it can appear easy to say that Article 48 of the ARSIWA provides an answer to the question of who may invoke the responsibility of a territorial state in case of the breach of that obligation and may claim from that state the related consequences. However, when it comes to the application of this article to the breach of the obligation to prevent genocide before genocide occurs, the reality shows a different picture. So far, there is no practice of states invoking the responsibility of a territorial state in situations where genocide has not (yet) occurred, not even with regard to the first two consequences (cessation and guarantees of non-repetition) which appear not to be too difficult for any state to claim. Unfortunately, this is not due to the lack of situations that could trigger such invocation, but quite likely, and in as far as legal aspects are concerned, due to the lack of clarity as to whether claims related to the breach of the duty to prevent would be admissible in international law. Moreover, states may be reluctant to engage in such claims because there is no certainty that the breach of prevention before genocide has occurred may be serious enough to trigger them.
Another reason for this reluctance is the absence of direct injury to third states. Of course theoretically (legally) all members of the international community can be said to be injured by breaches of a peremptory norm, but in reality this is not the same as when the state is directly affected. Indeed, so far states have not shown much interest in holding territorial states responsible for breaching the obligation to prevent genocide before genocide occurs, or for that matter any other obligation arising under a peremptory norm. Of course, the lack of any direct injury to third states is an issue of a more general nature and is not limited to the prevention of genocide, but as in other areas of international law, that should lead to establishing effective mechanisms to hold states to account for such violations of (fundamental) international norms.
With regard to claiming reparation, difficulties also arise. Any state could theoretically make a claim for reparation in the interest of the injured state or of other beneficiaries of the obligation breached.Footnote 93 In the case where a territorial state has failed to adopt measures that prevent genocide or has adopted those that may lead to genocide, it is clearly not an injured state for the interest of which the reparation could be claimed. The beneficiaries of the reparation would be the affected parts of the population of that state. Also in this regard there is no practice to assess the feasibility of such claims. Realistically, it does not seem very likely that in the current state of affairs, states would engage in claiming reparation on behalf of (parts of) a population when the obligation to prevent genocide is breached before genocide takes place.
For the other consequences, notably cessation and assurances of non-repetition, the invocation may take place in a more indirect manner. This is presumably partly due to the fact that, in particular regarding cessation, the desired effect can be achieved without making an explicit claim under Article 48. For instance, regarding UN accusations that Rwanda had coordinated the creation of the Congolese rebel movement M23 and its major military operations,Footnote 94 and the accusations that M23 engaged in grave ethnic-based violations of human rights which included arbitrary executions, enforced disappearances, degrading treatment and rape in Goma and the surroundings,Footnote 95 some states suspended their aid and assistance to Rwanda because such aid was allegedly being used to support M23.Footnote 96 This also corresponds to what the obligation not to render aid or assistance to the (territorial) state requires.
Another possible obstacle to the invocation of responsibility under Article 48 is the rather categorical manner in which the ICJ noted in Bosnia v. Serbia that the responsibility for the obligation to prevent genocide can only be breached if genocide is committed. Though as discussed above this can be and has been challenged, it would be difficult and courageous for states to bring a case before that very court to invoke such responsibility before genocide is committed. The alternative of having national courts addressing this issue is not promising. This alternative has been tried before (many years after the crimes were committed) and it has been unsuccessful because of other challenges, including state immunity.Footnote 97
Yet another challenge is the lack of coordination. The fact that it is left to states individually to invoke responsibility under Article 48 makes it a rather unattractive provision. Few states will be prepared to take the effort to make such claims without having a direct interest. In order to make the mechanism of Article 48 meaningful, it can be argued that not only international law needs to be developed further to clarify the many issues discussed in this article, but also that an international mechanism for coordination and implementation is necessary. Although in the current international climate it is not very likely that such a mechanism could be established any time soon, the present analysis shows that this may still be more realistic than waiting for individual states to invoke state responsibility of the territorial state for not doing enough to prevent genocide before genocide takes place and to claim reparation or other forms of redress for victims. Claims for violations of duties owed to the international community should be made collectively on behalf of that community. Arguably, the creation of an Organisation for the Prevention of Genocide (OPG), as suggested by Ruvebana,Footnote 98 or any other mechanism to provide a more collective response, should be seriously considered. This Organisation or mechanism should be given the mandate to hold states responsible for breaching the duty to prevent genocide and to claim the consequences of the breach on behalf of the people affected.