Duty and semantics: Can legal responsibility under the Genocide Convention be avoided by circumventing use of the term “genocide”?

Narissa Ramsundar | narissa.ramsundar@canterbury.ac.ukI. Introduction

Today, with the rise of live media broadcasting, journalists can report on the threat of genocide as events unfold on the ground. The instantaneous transmission of news may raise state awareness that a genocide is imminent. So far, there have been examples whereby state responses to such reports have tended to downplay the intensity of the killings. This was prominently demonstrated in the responses to the Rwandan genocide that occurred in April 1994. President Clinton in a radio address on the 30^th of April, 1994, some 3 weeks after the genocide spoke of “mass killings of civilians in Rwanda.” According to Samantha Power, [p. 359]. The Rwanda example is by no means unique, and states’ mistaken belief that circumvention of the term “genocide” somehow avoids legal responsibility under the Genocide Convention (GC) and other instruments proscribing Genocide remains persistent.

Contrary to this, it is suggested that legal responsibility under the GC, cannot be avoided by circumventing the term “genocide” through use of reductive words. Despite this attempt to deflect responsibility through avoiding the ‘G’ word, actors involved remain bound by duties arising under the GC. Where words acknowledge events that later form the evidential basis of genocidal intent under Article II of the GC, legal responsibility cannot be avoided. It is suggested that the use of this reductive nomenclature serves as cogent evidence that a state party was put on notice that acts of genocide—outlined in Article II of the GC—were imminent. In such circumstances, this notice triggers the duty to prevent genocide under Article I of the GC and semantic manipulations will not mitigate against findings of state responsibility for its breach.

This argument draws on the findings of the Majority in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Bosnian Genocide” case) to support its thesis since, to date, the Bosnian Genocide Case offers an authoritative exposition on the duty to prevent genocide by the principal judicial organ of the United Nations. Furthermore, its reasoning on the obligation to prevent genocide is regarded as progressive [p.687], the argument is articulated in the next three sections.

II. Legal responsibility regarding the duty to prevent genocide

The legal responsibility regarding the duty to prevent genocide is a substantial one. This is because states’ duties to prevent and punish acts of genocide fall into the unique category of obligations that are erga omnes, i.e., owed to the international community as a whole [paras 33-34]. Normatively speaking, this creates an overarching duty on all states to prevent and punish acts of genocide. Most scholars focus on one particular consequence to this erga omnes obligation, namely, on the creation of the collective rights of standing under Article 48 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). This allows all states to invoke a case before the International Court of Justice and demand interim measures, such as cessation or non-repetition of genocidal acts under Article 30 of the ARSIWA. The question then is whether there are other consequences of that erga omnes obligation that need to be considered?

It is suggested that one consequence is that there is a duty to respond once a State “learns or should normally have learnt of the existence that a genocide will be committed”[para 431]. Here the language of the Majority in the Bosnian Genocide case employs a due diligence approach as it not only leaves the onus on cases where the State learned of the genocide, but goes further to identify an obligation where the State should have “normally” learned of the genocide. From that moment, if the State has the means to prevent the genocide from occurring, “it is under a duty to make such use of these means as the circumstances permit” [para 430]. If genocide does occur, a finding of responsibility against the State is possible. This is because the obligation is one of conduct, not result [para 430]. Determining if a state failed to take all measures within its power to prevent a genocide is essentially an assessment of whether a State acted with “due diligence” in its response to an imminent threat of a genocide [para 430]. This assessment is conducted in light of the totality of the circumstances surrounding the genocide [p.685]. Responsibility is only avoided in cases where the genocide did not occur, as a State cannot be held responsible a posteriori for an event that did not happen.

The duty to prevent thus has a trigger. It is the moment at which a State can be deemed to have knowledge of an impending genocide. The Bosnian Genocide case has broadly outlined that a State can be deemed to have knowledge of an impending genocide if:

• knowledge is available to the State either through direct intelligence [paras 411-412];
• Information that genocide was imminent was in the public domain [para 54]; or
• The State possesses information that voices serious concern of an impending genocide [para 438].

Whichever way the information is flagged up, states would be expected to have learned that a genocide was imminent in any of these circumstances. Recognition of that information through whatever semantic formulation identifies the point at which the obligations to prevent under the GC are triggered.

III. The impact of reductive semantics on state responsibility for breach of the duty to prevent to genocide

States, therefore, in responding to information that “voices serious concern” of an impending genocide, or to information in the public domain that suggest the massacre or killings are likely to fall under Article II of the GC, can be said to have assumed responsibility under the GC. State responsibility is triggered at that point. This is an extremely onerous position through which the only avoidance of responsibility is if the acts later on do not fulfil the dolus specialis identified under Article II of the GC.

In responding to information by using words such as “tribal civil war”, a “horrible civil war” or “massacre of innocents” to describe killings, evidence is provided that states have learned of a situation that is worthy of further scrutiny. It may not be enough at that stage to say that knowledge of a genocide was not at hand. Regardless of whether the information prima facie demonstrates systematic killings without the dolus specialis identified under Article II of the GC, the State must not stop there. Instead it must proactively push further, as the information discloses a potential that a genocide may be committed. This is because, the State is now at the point where it must discharge the due diligence requirement to learn more about the situation. There is thus the need to assess the information to reasonably deduce the likely consequences and take appropriate measures.

Regardless of the formulation of words to describe the events as they unfold, the duty to prevent genocide is triggered. Whether it is described as genocide or not, the identification of an attack on the civilian population, as well as the recognition of its intensity through any word that conveys an awareness of a situation that is of real concern, demonstrate an awareness that a potential genocidal attack is imminent. The State must then make use of means that the circumstances permit to avoid the genocide [para 431].

IV. Conclusion

In summary, due diligence obligations are embedded in the duty to prevent genocide. With that in mind, the point at which that duty to act with due diligence becomes significant. As is argued, the duty to act is prompted following an acknowledgement of attacks that have the potential to lead to genocide. Whether the attack pans out to be a genocide, a widespread and systematic killing of individuals or a mass murder is irrelevant to the discharge of the duty to prevent as outlined by the Bosnian Genocide Case. The focus of the duty is to act once the State learns or should normally have learned that a genocide was imminent. Thus, the acknowledgement of an attack, through whatever semantics, acts as a trigger point for the obligations under Article 1 of the GC because it provides evidence that the State learned or should normally have learned that a genocide was imminent.

Narissa Ramsundar is a Senior Lecturer at Canterbury Christ Church University. She obtained her PhD in 2017 and is currently working on a monograph to be published by Brill entitled “State Responsibility for Support of Armed Groups in the Commission of International Crimes". She is a former state prosecutor from Trinidad and Tobago and has prosecuted a range of cases including murder, narcotic trafficking and sexual offences. She researches in the areas of international criminal law, state responsibility for non-state actors and  the impact of the aesthetic on the development of law.