ISBN-10:
1780682735
ISBN-13:
9781780682730
Pub. Date:
10/31/2014
Publisher:
Intersentia
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

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

by Etienne Ruvebana

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Product Details

ISBN-13: 9781780682730
Publisher: Intersentia
Publication date: 10/31/2014
Series: School of Human Rights Research Series , #66
Pages: 360
Product dimensions: 6.50(w) x 9.25(h) x 0.80(d)

About the Author

Etienne Ruvebana studied Law at the National University of Rwanda (LL.B, 2004). He did his LL.M in international law and the law of international organisations at the University of Groningen in the Netherlands (2007). In September 2009 he started his PhD research on the prevention of genocide under international law which he successfully finished in June 2014. Before he started his PhD, he was a University Lecturer of Public Law at the Kigali Independent University in Rwanda. He also served as the head of Department of Law and Acting Dean of the Faculty of Law of that University before September 2009. 

In 2008, he authored a book on the responsibility of states and international organisations for the omission to prevent genocide of Tutsi in Rwanda, published in the Editions Rwandaises. In 2009 he authored an article on the protection of the environment during armed conflicts in the Revue Scientifique of the Kigali Independent University. In 2010 he authored an article on the achievements and challenges of Gacaca Courts in Rwanda in solving the extreme legal and social problems of genocide, published by the Commission Nationale de Lutte contre le Genocide. In 2011, he authored a chapter on Victims of the Genocide Against the Tutsis in Rwanda, published by Intersentia. In 2013, he co-authored an article on the legacy of Gacaca Courts in Rwanda, published by the International Criminal Law Review. In 2014, Intersentia published his PhD book in the series of the School of Human Rights Research.

In 2014, he got appointed as Lecturer in the School of Law of the University of Rwanda. In addition to his PhD fields of research, his interests include the responsibility of states and international organisations for their wrongful acts, the use of force in international law and criminal international law.

Table of Contents

Acknowledgements v

List of Abbreviations xv

Chapter I General Introduction 1

1 Research Context 1

2 Research Question 6

3 Objective of the Research 8

4 Sources of the Research 8

5 Structure of the Research 10

Chapter II The Concept of Prevention as Understood in various Fields 11

Introduction 11

1 Prevention in public health 11

1.1 Meaning of prevention in public health 12

1.2 Understanding prevention in public health through examples 15

1.2.1 Prevention of malaria 15

1.2.2 Prevention of international spread of disease 17

1.3 Preliminary conclusions 19

2 Prevention of proliferation of nuclear weapons 19

2.1 Understanding prevention through the rules on non-proliferation of nuclear weapons 20

2.2 The IAEA role in the prevention of proliferation of nuclear weapons 21

2.3 Preliminary conclusions 23

3 Prevention in criminology 23

4 Prevention in international environmental law 26

4.1 Understanding the meaning and purpose of prevention and the preventive measures in environmental law 27

4.1.1 Understanding the meaning and purpose of prevention in environmental law 27

4.1.2 Understanding preventive measures through some international conventions and case-law 28

4.2 Prevention principle v. the lack of certainty of the occurrence of environmental damage and of the power to prevent 32

4.3 Preliminary conclusions 34

5 Prevention of torture 35

5.1 Prevention of torture at the international level 35

5.2 Prevention of torture at the regional level 40

5.2.1 Prevention of torture at the European level 40

5.2.2 Prevention of torture at the American level 41

5.3 Preliminary conclusions 43

Conclusion 43

Chapter III The Concept of Prevention in the Field of Genocide in General 47

Introduction 47

1 Understanding the factors in the process to genocide 48

1.1 Genocide as an identity-based phenomenon 49

1.2 Difficult life conditions due to economic problems 50

1.3 Deprivation or inequalities in the allocation of scarce resources 51

1.4 Political scarcity 52

1.5 Armed Conflicts 53

1.6 Human rights violations in an atmosphere of impunity 54

1.7 Preliminary conclusions 55

2 Understanding the risks of genocide in different phases of the process to genocide 57

2.1 Social categorisation 57

2.2 Discrimination 58

2.3 Dehumanisation 59

2.4 Propaganda for the elimination of the targeted group(s) 60

2.5 Preparation 64

2.6 Targeted massacres 65

2.7 Elimination (genocide per se) 66

2.8 Absence of action to halt genocide 66

2.9 Denial of genocide and impunity of its perpetrators 67

2.10 Preliminary conclusions 67

3 Understanding prevention in the process to genocide 68

3.1 Primary prevention of genocide 69

3.2 Secondary prevention of genocide 69

3.3 Tertiary prevention of genocide 71

3.4 Prevention v. the lack of certainty of the risk of genocide and of the power to prevent 71

3.5 Preliminary conclusions 72

Conclusion 72

Chapter IV Prevention of Genocide Under International Law 75

Introduction 75

1 Origin and definition of genocide: a prevention perspective 75

2 The obligation to prevent genocide: meaning, scope and independence vis-à-vis the obligation to punish 82

2.1 Meaning of prevention and the obligation to prevent genocide: Article I of the Genocide Convention 83

2.1.1 The meaning of prevention in the Genocide Convention 83

2.1.2 The meaning and scope of the obligation to prevent genocide 84

2.2 Obligation to prevent genocide as a legal obligation (separate from the obligation to punish) 90

2.3 The nature of the obligation to prevent genocide: obligation of means not of result? 93

2.3.1 The distinction between the obligation of means and the obligation of result 93

2.3.2 Does the application of the distinction by the ICJ match the reality and nature of the obligation to prevent genocide? 95

2.4 Preliminary conclusions 97

3 The bearers of the obligation to prevent genocide 98

3.1 The bearers of the obligation to prevent genocide under the Genocide Convention 98

3.2 The obligation to prevent genocide under customary international law and its bearers 99

3.3 Preliminary conclusions 103

4 The temporal scope of the obligation to prevent genocide 103

5 Prevention and knowledge of serious risk of genocide and the lack of certainty of its occurrence 107

5.1 Prevention and knowledge of the serious risk of genocide 107

5.2 Obligation to prevent genocide v. the lack of certainty that genocide will happen 109

5.3 Preliminary conclusions 110

Conclusion 110

Chapter V The Obligation of Territorial States to Prevent Genocide Under International Law 113

Introduction 113

1 Territorial scope of the obligation to prevent genocide 113

2 Primary prevention of genocide by territorial states 114

2.1 Necessary legislation to give effect to the Genocide Convention 115

2.1.1 Legal basis and meaning 115

2.1.2 Content of necessary legislation to give effect to the Genocide Convention 116

2.2 Is only legislation envisaged at the primary level in order to prevent genocide? 121

2.3 Preliminary conclusions 123

3 Secondary prevention of genocide by territorial states 124

3.1 Preventive measures exercised at a national level 124

3.1.1 Judicial measures to prevent genocide 125

3.1.2 Other measures 136

3.2 Preventive measures with international character 138

3.2.1 Prevention by punishing the incitement to commit genocide committed outside its territory 138

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? 144

3.3 Preliminary conclusions 146

4 Tertiary prevention of genocide by territorial states 146

4.1 Who within the state is committing genocide? 146

4.1.1 When genocide is being committed by the territorial state's organs 147

4.1.2 When genocide is being committed by a rebel group (not under the control of the territorial state) 148

4.1.3 When genocide is being committed by apart of the population of the territorial state 149

4.2 When genocide is being committed by another state or rebel groups from another state 150

4.2.1 When a territorial state is victim of aggression by another state with the intention to commit genocide 150

4.2.2 When genocide is being committed by armed bands or groups operating from another state 152

4.3 Preliminary conclusions 156

5 Some challenges common to the prevention at the three levels and how they should be overcome 156

Conclusion 158

Chapter VI Prevention of Genocide by Non-Territorial States Under International Law 161

Introduction 161

1 The territorial scope of the obligation to prevent genocide 161

1.1 Confronting the obligation to prevent genocide with state sovereignty 162

1.2 The ICJ and the territorial scope of the obligation to prevent genocide 167

2 Capacity of non-territorial states to prevent genocide outside their territories 171

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? 173

3.1 Necessary legislation that may have effect on the prevention of genocide in other states 174

3.1.1 Legislation that penalises behaviours that may lead to genocide and genocide itself. 174

3.1.2 Legislation that creates a mechanism to prosecute and punish genocide related crimes committed outside the prosecuting state 175

3.2 Other measures 180

3.3 Preliminary Conclusions 182

4 Secondary prevention of genocide by non-territorial states: What actions are permitted in international law with what means and to which distance? 182

4.1 Judicial measures for the prevention of genocide by non-territorial states 183

4.1.1 Application of the principle of universal jurisdiction in the prevention of genocide 183

4.1.2 Preventing genocide through the referral of a situation to the ICC and through the execution of its arrest warrants 189

4.2 Other preventive measures 192

4.3 Preliminary conclusions 195

5 Tertiary prevention of genocide by non-territorial states: What actions are permitted in international law with what means and to which distance? 195

5.1 The prohibition of use of force in the context of genocide 196

5.1.1 Mainstream views on the prohibition of use of force 196

5.1.2 Views in favour of an extensive interpretation of article 2(4) 197

5.2 Humanitarian intervention and the use of force to put an end to genocide 200

5.2.1 Background and definition of humanitarian intervention 201

5.2.2 Arguments of the proponents of humanitarian intervention in general 202

5.2.3 Arguments of the opponents of humanitarian intervention in general 204

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? 207

5.4 Necessity: a circumstance precluding the wrongfulness of the use of force in case of genocide? 211

5.5 Threshold needed for the use of force to end genocide under any of the discussed forms 214

5.6 Preliminary conclusions 217

6 The use of influence as means to prevent genocide at all levels 218

6.1 Definition of influence 219

6.2 The use of influence to prevent genocide 219

6.3 Assessing the capacity to influence 222

6.4 Preliminary conclusions 223

7 Coordination at all three levels of prevention in discharging the obligation of non-territorial states to prevent genocide 223

Conclusion 226

Chapter VII The United Nations and the Obligation to Prevent Genocide Under International Law 229

Introduction 229

1 The obligation of the United Nations to prevent genocide 230

1.1 Drafting history of article VTII and how it was interpreted later 230

1.2 The legal basis for the UN obligation to prevent genocide 232

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? 232

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 234

1.3 Is the obligation of the UN to prevent genocide triggered only if called upon by states? 238

1.4 Preliminary conclusions 239

2 The territorial scope of the obligation to prevent genocide by the UN 240

3 The competence of organs of the United Nations to prevent genocide and when and how they can act 241

3.1 The Security Council 242

3.1.1 Does the Security Council have the competence to prevent genocide? 242

3.1.2 When and how can the Security Council act to prevent genocide? 243

3.2 The General Assembly 257

3.2.1 Does the General Assembly have the competence to prevent genocide? 257

3.2.2 When and how can the General Assembly act to prevent genocide? 258

3.3 The Secretariat 265

3.3.1 Does the Secretariat have the competence to prevent genocide? 265

3.3.2 When and how the Secretariat can act to prevent genocide? 266

3.4 The Economic and Social Council (ECOSOC) 274

3.4.1 Does the Economic and Social Council have the competence to prevent genocide? 274

3.4.2 When and how the ECOSOC can act to prevent genocide? 275

3.5 The International Court of Justice 281

3.5.1 The basis of the competence of the ICJ to address the prevention of genocide 281

3.5.2 When and how can the ICJ act to prevent genocide? 282

3.6 Preliminary conclusions 285

Conclusion 285

Chapter VIII Prevention of Genocide and the Concept of the Responsibility to Protect 289

Introduction 289

1 Background and evolution of the concept of the R2P 289

2 Prevention of genocide by territorial states under the R2P 293

2.1 Prevention of genocide at the primary level under the R2P 293

2.2 Prevention of genocide at the secondary and tertiary levels under the R2P 297

2.3 Preliminary conclusions 298

3 Prevention of genocide by non-territorial states and by (or through) the United Nations under the R2P 299

3.1 Prevention of genocide at the primary level under the R2P 299

3.2 Prevention of genocide at the secondary level under the R2P 302

3.3 Prevention of genocide at the tertiary level under the R2P 305

3.4 Preliminary conclusions 311

4 R2P and prevention of genocide: challenges ahead 311

Conclusion 314

Chapter IX Summary and General Conclusions 317

1 Summary 317

2 Conclusions and recommendations: Towards a world without genocide? 320

Bibliography 325

Samenvatting 347

Curriculum Vitae 357

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