International Law and International Law and the Genocide Conventionthe Genocide Convention

Third Professional Training Program on Third Professional Training Program on the Prevention of Mass Atrocitiesthe Prevention of Mass Atrocities

OttawaOttawa16 June 201516 June 2015

Professor John PackerProfessor John PackerDirector, Human Rights Research & Education Director, Human Rights Research & Education

CentreCentreUniversity of OttawaUniversity of Ottawa

HistoryHistory Peace of Westphalia (1648)Peace of Westphalia (1648)

– Sovereign equality (of Princes)Sovereign equality (of Princes)– Accommodation of religious communitiesAccommodation of religious communities

National sovereignty (19National sovereignty (19thth century) century)

Nationalities principle (early 20Nationalities principle (early 20thth century) century)

National self-determination (post WW I)National self-determination (post WW I)– ““National minorities” protection regime ... limited / selectiveNational minorities” protection regime ... limited / selective– Protection of injured, sick and civilians in time of war Protection of injured, sick and civilians in time of war

Protection of human Protection of human rightsrights (post WW II) (post WW II)

[Protection of minorities and civilians post Cold [Protection of minorities and civilians post Cold War] War]

Pre-1945 LogicPre-1945 Logic

Westphalia’s “billiard balls”Westphalia’s “billiard balls”

[between STATES][between STATES]

Post-1945 LogicPost-1945 Logic

Equally sovereign StatesEqually sovereign States

comprisingcomprising

Equal human beings Equal human beings

guaranteedguaranteed

Equal “human rights”Equal “human rights”

Key Norms and Key Norms and StandardsStandards

Between StatesBetween States

1. Principle of Sovereign Equality1. Principle of Sovereign Equality

2. Principle of Non-Intervention2. Principle of Non-Intervention

3. Principle of Non-Use of Force3. Principle of Non-Use of Force

4. Principle of Collective Security4. Principle of Collective Security

5. Principle of Cooperation5. Principle of Cooperation

Within the StateWithin the State

1. “All human beings are born 1. “All human beings are born free and equal in dignity free and equal in dignity and rights.” and rights.” (Article 1 UDHR)(Article 1 UDHR)

2. Principle of Non-Discrimination 2. Principle of Non-Discrimination (UN Charter etc.)(UN Charter etc.)

3. Principle of Equality 3. Principle of Equality (UN Charter etc.)(UN Charter etc.)

4. Principle of Development 4. Principle of Development

Definition of the StateDefinition of the State

See: Montevideo Convention on the Rights and Duties of States (1933)See: Montevideo Convention on the Rights and Duties of States (1933)

Article 1Article 1

The state as a person of international law should possess The state as a person of international law should possess the following qualifications:the following qualifications:

a.a. a permanent population;a permanent population;

b.b. a defined territory;a defined territory;

c.c. government; andgovernment; and

d.d. capacity to enter into relations with the other capacity to enter into relations with the other states.states.

Article 2Article 2

The federal state shall constitute a sole person in the The federal state shall constitute a sole person in the eyes of international law.eyes of international law.

The Constitutional The Constitutional Character of the UN Character of the UN CharterCharter

Sovereignty = Exclusive JurisdictionSovereignty = Exclusive Jurisdiction UN Charter as a Constraining TreatyUN Charter as a Constraining Treaty Consent and Persistent ObjectionConsent and Persistent Objection Objects and Purposes of the CharterObjects and Purposes of the Charter Limits on the Use of ForceLimits on the Use of Force Duties to CooperateDuties to Cooperate Hierarchy of International LawHierarchy of International Law

Sources of Sources of International LawInternational LawSTATUTE OF THE INTERNATIONAL COURT OF JUSTICE (UN Charter)STATUTE OF THE INTERNATIONAL COURT OF JUSTICE (UN Charter)

Article 38Article 381. The Court, whose function is to decide in accordance with 1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply: international law such disputes as are submitted to it, shall apply: a. a. international conventionsinternational conventions, whether general or particular, , whether general or particular, establishing rules expressly recognized by the contesting states; establishing rules expressly recognized by the contesting states; b. b. international custominternational custom, as evidence of a general practice , as evidence of a general practice accepted as law; accepted as law; c. the c. the general principles of lawgeneral principles of law recognized by civilized nations; recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various teachings of the most highly qualified publicists of the various nations, as nations, as subsidiary means subsidiary means for the determination of rules of for the determination of rules of law. law.

2. This provision shall not prejudice the power of the Court to decide 2. This provision shall not prejudice the power of the Court to decide a case a case ex aequo et bonoex aequo et bono, if the parties agree thereto. , if the parties agree thereto.

Purposes of the UN Purposes of the UN CharterCharter

Article 1Article 1

The Purposes of the United Nations are: The Purposes of the United Nations are: 1. To 1. To maintain international peace and securitymaintain international peace and security, and to that end: to take , and to that end: to take effective collective measures for the prevention and removal of threats to the effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; international disputes or situations which might lead to a breach of the peace;

2. To 2. To develop friendly relations develop friendly relations among nations based on respect for the among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; appropriate measures to strengthen universal peace;

3. To 3. To achieve international co-operation achieve international co-operation in solving international problems in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and all without distinction as to race, sex, language, or religion; and

4. To be 4. To be a centre for harmonizing the actions of nations a centre for harmonizing the actions of nations in the in the attainment of these common ends. attainment of these common ends.

Non-Use of ForceNon-Use of Force

CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTESCHAPTER VI: PACIFIC SETTLEMENT OF DISPUTESArticle 33Article 33

1. The parties to any dispute, the continuance of which is 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. upon the parties to settle their dispute by such means.

Use of Force - IUse of Force - I

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSIONPEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39Article 39

The Security Council shall determine the existence The Security Council shall determine the existence of any of any threat to the peace, breach of the peace, or threat to the peace, breach of the peace, or act of aggression act of aggression and shall make recommendations, and shall make recommendations, or decide what measures or decide what measures shall be taken in shall be taken in accordance with Articles 41 and 42, to accordance with Articles 41 and 42, to maintain or maintain or restore international peace and security. restore international peace and security.

Use of Force - IIUse of Force - II

Article 51Article 51

Nothing in the present Charter shall impair the inherent Nothing in the present Charter shall impair the inherent right of individual or collective right of individual or collective self-defenceself-defence if an armed if an armed attack occurs against a Member of the United Nations, attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary until the Security Council has taken measures necessary to maintain international peace and security. Measures to maintain international peace and security. Measures taken by Members in the exercise of this right of self-taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security defence shall be immediately reported to the Security Council and shall not in any way affect the authority and Council and shall not in any way affect the authority and responsibility of the Security Council under the present responsibility of the Security Council under the present Charter to take at any time such action as it deems Charter to take at any time such action as it deems necessary in order to maintain or restore international necessary in order to maintain or restore international peace and security.peace and security.

Use of Force - IIIUse of Force - III

CHAPTER VIII: REGIONAL ARRANGEMENTSCHAPTER VIII: REGIONAL ARRANGEMENTS

Article 52Article 52

1. Nothing in the present Charter the existence of 1. Nothing in the present Charter the existence of regional arrangements or agencies for dealing with regional arrangements or agencies for dealing with such matters relating to the maintenance of such matters relating to the maintenance of international peace and security as are appropriate international peace and security as are appropriate for regional action, provided that such arrangements for regional action, provided that such arrangements or agencies and their activities are or agencies and their activities are consistent with consistent with the Purposes and Principles of the United the Purposes and Principles of the United NationsNations. .

Individual under ILIndividual under IL

Subjects of protectionSubjects of protection

- Diplomatic Law- Diplomatic Law

- Humanitarian Law- Humanitarian Law

- Certain minorities (NB religious)- Certain minorities (NB religious)

- Human Rights (including - Human Rights (including refugees)refugees)

- Private interests (trade, - Private interests (trade, adoption…)adoption…)

State ResponsibilityState Responsibility

- Cf. Definition of the StateCf. Definition of the State- Good FaithGood Faith- AgencyAgency- Illicit ActsIllicit Acts- InjuryInjury- ReparationReparation

- Restitution, Indemnification, Restitution, Indemnification, SatisfactionSatisfaction

Individual Individual ResponsibilityResponsibility

- Respect the Law- Respect the Law

- International Criminal Law- International Criminal Law

- Piracy- Piracy

- War Crimes- War Crimes

- Genocide- Genocide

- Against Humanity - Against Humanity

Hierarchy of IL?Hierarchy of IL?

See: Vienna Convention on the Law See: Vienna Convention on the Law of Treaties (1969)of Treaties (1969)-Pacta sunt servanda Pacta sunt servanda = good faith = good faith performance (Article 26)performance (Article 26)-Priority of general IL (Article 43)Priority of general IL (Article 43)-More specific law More specific law -Subsequent lawSubsequent law

““Mass Atrocities”Mass Atrocities”

= short-hand for= short-hand for-GenocideGenocide-Crimes Against HumanityCrimes Against Humanity-War CrimesWar Crimes-““Ethnic Cleansing” (2005 Outcome Doc.)Ethnic Cleansing” (2005 Outcome Doc.)

[Q. What is the threshold of “mass”?][Q. What is the threshold of “mass”?]

1948 Convention on the 1948 Convention on the Prevention and Punishment of Prevention and Punishment of the Crime of Genocidethe Crime of Genocide

Article 2Article 2

““In the present Convention, genocide means any of the following acts In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:ethnical, racial or religious group, as such:

(a) Killing members of the group;(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”(e) Forcibly transferring children of the group to another group.”

1948 Convention on the 1948 Convention on the Prevention and Punishment of Prevention and Punishment of the Crime of Genocidethe Crime of Genocide

Article 3Article 3

““The following acts shall be punishable:The following acts shall be punishable:

(a) Genocide;(a) Genocide;

(b) Conspiracy to commit genocide;(b) Conspiracy to commit genocide;

(c) Direct and public incitement to (c) Direct and public incitement to commit genocide;commit genocide;

(d) Attempt to commit genocide;(d) Attempt to commit genocide;

(e) Complicity in genocide.”(e) Complicity in genocide.”

Prevention?Prevention?

A duty of States. [Q.: Source of IL?]A duty of States. [Q.: Source of IL?]

UN Special Adviser to the Secretary-UN Special Adviser to the Secretary-General on the Prevention of General on the Prevention of GenocideGenocide

Cf “Framework of Analysis for Mass Cf “Framework of Analysis for Mass Atrocity Crimes” (2014)Atrocity Crimes” (2014)