Prevention of Genocide Under International Law

An Analysis of the Obligations of States and the United Nations to Prevent Genocide at the Primary, Secondary and Tertiary Levels

AvEtienne Ruvebana

Häftad, Engelska, 2014

Del 66 i serien School of Human Rights Research

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Beskrivning

Genocide is the crime of crimes which shocks the conscience of mankind the most because of the unspeakable damage and pain it causes. This book studies the obligation to prevent genocide under international law and more particularly the extent of that obligation under the Genocide Convention and customary international law.

Produktinformation

Utgivningsdatum:2014-10-31
Vikt:600 g
Format:Häftad
Språk:Engelska
Serie:School of Human Rights Research
Antal sidor:376
Förlag:Intersentia Ltd
ISBN:9781780682730

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Innehållsförteckning

CONTENTS Acknowledgements List of Abbreviations Chapter I. General Introduction 1. Research Context 2. Research Question 3. Objective of the Research 4. Sources of the Research 5. Structure of the Research Chapter II. The Concept of Prevention as Understood in various Fields Introduction 1. Prevention in public health 1.1. Meaning of prevention in public health 1.2. Understanding prevention in public health through examples 1.2.1. Prevention of malaria 1.2.2. Prevention of international spread of disease 1.3. Preliminary conclusions 2. Prevention of proliferation of nuclear weapons 2.1. Understanding prevention through the rules on non-proliferation of nuclear weapons 2.2. The IAEA role in the prevention of proliferation of nuclearweapons 2.3. Preliminary conclusions 3. Prevention in criminology 4. Prevention in international environmental law 4.1. Understanding the meaning and purpose of prevention and the preventive measures in environmental law 4.1.1. Understanding the meaning and purpose of prevention in environmental law 4.1.2. Understanding preventive measures through some international conventions and case-law 4.2. Prevention principle v. the lack of certainty of the occurrence of environmental damage and of the power to prevent 4.3. Preliminary conclusions 5. Prevention of torture 5.1. Prevention of torture at the international level 5.2. Prevention of torture at the regional level 5.2.1. Prevention of torture at the European level 5.2.2. Prevention of torture at the American level 5.3. Preliminary conclusions Conclusion Chapter III. The Concept of Prevention in the Field of Genocide in General Introduction 1. Understanding the factors in the process to genocide 1.1. Genocide as an identity-based phenomenon 1.2. Difficult life conditions due to economic problems 1.3. Deprivation or inequalities in the allocation of scarce resources 1.4. Political scarcity 1.5. Armed Conflicts 1.6. Human rights violations in an atmosphere of impunity 1.7. Preliminary conclusions 2. Understanding the risks of genocide in different phases of the process to genocide 2.1. Social categorisation 2.2. Discrimination 2.3. Dehumanisation 2.4. Propaganda for the elimination of the targeted group(s) 2.5. Preparation 2.6. Targeted massacres 2.7. Elimination (genocide per se) 2.8. Absence of action to halt genocide 2.9. Denial of genocide and impunity of its perpetrators 2.10. Preliminary conclusions 3. Understanding prevention in the process to genocide 3.1. Primary prevention of genocide 3.2. Secondary prevention of genocide 3.3. Tertiary prevention of genocide 3.4. Prevention v. the lack of certainty of the risk of genocide and of the power to prevent 3.5. Preliminary conclusions Conclusion Chapter IV. Prevention of Genocide Under International Law Introduction 1. Origin and definition of genocide: a prevention perspective 2. The obligation to prevent genocide: meaning, scope and independence vis-a-vis the obligation to punish 2.1. Meaning of prevention and the obligation to prevent genocide: Article I of the Genocide Convention 2.1.1. The meaning of prevention in the Genocide Convention 2.1.2. The meaning and scope of the obligation to prevent genocide 2.2. Obligation to prevent genocide as a legal obligation (separate from the obligation to punish) 2.3. The nature of the obligation to prevent genocide: obligation of means not of result? 2.3.1. The distinction between the obligation of means and the obligation of result 2.3.2. Does the application of the distinction by the ICJ match the reality and nature of the obligation to prevent genocide? 2.4. Preliminary conclusions 3. The bearers of the obligation to prevent genocide 3.1. The bearers of the obligation to prevent genocide under the Genocide Convention 3.2. The obligation to prevent genocide under customary international law and its bearers 3.3. Preliminary conclusions 4. The temporal scope of the obligation to prevent genocide 5. Prevention and knowledge of serious risk of genocide and the lack of certainty of its occurrence 5.1. Prevention and knowledge of the serious risk of genocide 5.2. Obligation to prevent genocide v. the lack of certainty that genocide will happen 5.3. Preliminary conclusions Conclusion Chapter V. The Obligation of Territorial States to Prevent Genocide Under International Law Introduction 1. Territorial scope of the obligation to prevent genocide 2. Primary prevention of genocide by territorial states 2.1. Necessary legislation to give effect to the Genocide Convention 2.1.1. Legal basis and meaning 2.1.2. Content of necessary legislation to give effect to the Genocide Convention 2.2. Is only legislation envisaged at the primary level in order to prevent genocide? 2.3. Preliminary conclusions 3. Secondary prevention of genocide by territorial states 3.1. Preventive measures exercised at a national level 3.1.1. Judicial measures to prevent genocide 3.1.2. Other measures 3.2. Preventive measures with international character 3.2.1. Prevention by punishing the incitement to commit genocide committed outside its territory 3.2.2. What if the inciting state is developing weapons of mass destruction which could be used to commit genocide against the people of a territorial state? 3.3. Preliminary conclusions 4. Tertiary prevention of genocide by territorial states 4.1. Who within the state is committing genocide? 4.1.1. When genocide is being committed by the territorial state's organs 4.1.2. When genocide is being committed by a rebel group (not under the control of the territorial state) 4.1.3. When genocide is being committed by a part of the population of the territorial state 4.2. When genocide is being committed by another state or rebel groups from another state 4.2.1. When a territorial state is victim of aggression by another state with the intention to commit genocide 4.2.2. When genocide is being committed by armed bands or groups operating from another state 4.3. Preliminary conclusions 5. Some challenges common to the prevention at the three levels and how they should be overcome Conclusion Chapter VI. Prevention of Genocide by Non-Territorial States Under International Law Introduction 1. The territorial scope of the obligation to prevent genocide 1.1. Confronting the obligation to prevent genocide with state sovereignty 1.2. The ICJ and the territorial scope of the obligation to prevent genocide 2. Capacity of non-territorial states to prevent genocide outside their territories 3. Primary prevention of genocide by non-territorial states: What actions are permitted and required in international law, with what means and to which distance? 3.1. Necessary legislation that may have effect on the prevention of genocide in other states 3.1.1. Legislation that penalises behaviours that may lead to genocide and genocide itself 3.1.2. Legislation that creates a mechanism to prosecute and punish genocide related crimes committed outside the prosecuting state 3.2. Other measures 3.3. Preliminary Conclusions 4. Secondary prevention of genocide by non-territorial states: What actions are permitted in international law with what means and to which distance? 4.1. Judicial measures for the prevention of genocide by nonterritorial states 4.1.1. Application of the principle of universal jurisdiction in the prevention of genocide 4.1.2. Preventing genocide through the referral of a situation to the ICC and through the execution of its arrest warrants 4.2. Other preventive measures 4.3. Preliminary conclusions 5. Tertiary prevention of genocide by non-territorial states: What actions are permitted in international law with what means and to which distance? 5.1. The prohibition of use of force in the context of genocide 5.1.1. Mainstream views on the prohibition of use of force 5.1.2. Views in favour of an extensive interpretation of article 2(4) 5.2. Humanitarian intervention and the use of force to put an end to genocide 5.2.1. Background and definition of humanitarian intervention 5.2.2. Arguments of the proponents of humanitarian intervention in general 5.2.3. Arguments of the opponents of humanitarian intervention in general 5.3. Can the commission of genocide be an independent ground to trigger the use of force to comply with the obligation to prevent genocide by non-territorial states? 5.4. Necessity: a circumstance precluding the wrongfulness of the use of force in case of genocide? 5.5. Threshold needed for the use of force to end genocide under any of the discussed forms 5.6. Preliminary conclusions 6. The use of influence as means to prevent genocide at all levels 6.1. Definition of influence 6.2. The use of influence to prevent genocide 6.3. Assessing the capacity to influence 6.4. Preliminary conclusions 7. Coordination at all three levels of prevention in discharging the obligation of non-territorial states to prevent genocide Conclusion Chapter VII. The United Nations and the Obligation to Prevent Genocide Under International Law Introduction 1. The obligation of the United Nations to prevent genocide 1.1. Drafting history of article VIII and how it was interpreted later 1.2. The legal basis for the UN obligation to prevent genocide 1.2.1. Does the UN obligation to prevent genocide derive from the Genocide Convention as a stand-alone legal basis or from general international law? 1.2.2. The UN obligation to prevent genocide reinforced, enhanced, confirmed and enabled by the purposes and general competence of the United Nations enshrined in the Charter 1.3. Is the obligation of the UN to prevent genocide triggered only if called upon by states? 1.4. Preliminary conclusions 2. The territorial scope of the obligation to prevent genocide by the UN 3. The competence of organs of the United Nations to prevent genocide and when and how they can act 3.1. The Security Council 3.1.1. Does the Security Council have the competence to prevent genocide? 3.1.2. When and how can the Security Council act to prevent genocide? 3.2. The General Assembly 3.2.1. Does the General Assembly have the competence to prevent genocide? 3.2.2. When and how can the General Assembly act to prevent genocide? 3.3. The Secretariat 3.3.1. Does the Secretariat have the competence to prevent genocide? 3.3.2. When and how the Secretariat can act to prevent genocide? 3.4. The Economic and Social Council (ECOSOC) 3.4.1. Does the Economic and Social Council have the competence to prevent genocide? 3.4.2. When and how the ECOSOC can act to prevent genocide? 3.5. The International Court of Justice 3.5.1. The basis of the competence of the ICJ to address the prevention of genocide 3.5.2. When and how can the ICJ act to prevent genocide? 3.6. Preliminary conclusions Conclusion Chapter VIII. Prevention of Genocide and the Concept of the Responsibility to Protect Introduction 1. Background and evolution of the concept of the R2P 2. Prevention of genocide by territorial states under the R2P 2.1. Prevention of genocide at the primary level under the R2P 2.2. Prevention of genocide at the secondary and tertiary levels under the R2P 2.3. Preliminary conclusions 3. Prevention of genocide by non-territorial states and by (or through) the United Nations under the R2P 3.1. Prevention of genocide at the primary level under the R2P 3.2. Prevention of genocide at the secondary level under the R2P 3.3. Prevention of genocide at the tertiary level under the R2P 3.4. Preliminary conclusions 4. R2P and prevention of genocide: challenges ahead Conclusion Chapter IX. Summary and General Conclusions 1. Summary 2. Conclusions and recommendations: Towards a world without genocide? Bibliography Samenvatting Curriculum Vitae