Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention

Manuel J. Ventura is a Director of The Peace and Justice Initiative and Dapo Akande is editor of EJIL:Talk!

The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]

However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens  . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. This is one problem with the normative hierarchy argument that is often asserted with respect to the supposed conflict between jus cogens and rules of immunity. Too often there is an assumption that the rule invoked is indeed jus cogens without sufficient analysis of that proposition. This point was made by Akande & Shah in 2010 EJIL 815 at 833 where the authors also questioned whether the obligation to prosecute and punish genocide is itself a jus cogens norm.

That the prohibition on the commission of genocide is a jus cogens norm goes without saying. Yet, as aforementioned, in the Mothers of Srebrenica litigation the claimants did not seek to hold the UN responsible for the commission of genocide, but for failing in their (alleged) duty to prevent it. As the ICJ has clearly stipulated, the obligation to prevent genocide (at least under the Genocide Convention) has an entirely separate existence. It is distinct from the prohibition on the commission of genocide (or its punishment). [Genocide Convention Case (Bosnia and Herzegovina v. Serbia and Montenegro), 2007, para. 427] It is true that the courts denied that an allegation of a violation of jus cogens would defeat the UN’s immunity. Nevertheless, if the Dutch courts had found that the prevention of genocide was not a jus cogens norm, then the issue before the ECtHR would have been slightly different, although the outcome would have been the same.

Since the final outcome would have remained unchanged, one might well ask whether this is simply nitpicking. It is not. If indeed the prevention of genocide has attained jus cogens status then it opens very interesting doors. As we know, jus cogens trumps other substantive norms of international law. If the obligation to prevent genocide is a jus cogens norm one could begin to construct an argument that it overrides say, the prohibition on the use of force. In such a context, and unlike the ICJ’s Jurisdictional Immunities of the State, one could not invoke a substantive/procedural distinction. The prohibition on the use of force is a substantive norm.

In other words, this would, potentially, be an avenue through which one could begin to consider lawful humanitarian intervention to prevent genocide. Many argue that the prohibition of the use of force is a jus cogens norm (though arguments can also be made to the contrary, see James A. Green’s EJIL Talk! post and accompanying article). On the assumption that it is, one significant, though under-appreciated, argument militating against the existence of a right of humanitarian intervention is that the development of such a right as a matter of customary law would imply that a customary rule has modified the jus cogens prohibition of the use of force. Theoretically, this is an impossibility. As Art. 53 of the Vienna Convention on the Law of Treaties provides, one norm of jus cogens can only be modified by another norm of jus cogens. However, a jus cogens obligation to prevent genocide opens up the theoretical possibility of lawful humanitarian intervention to prevent genocide by modifying the prior jus cogens norm. Thus, classifying the prohibition of the use of force as a jus cogens norm would not stand in the way of such a rule’s emergence. All of this would of course have far reaching implications that would require further exploration. For one thing, there would need to be exploration of what the obligation to prevent genocide actually requires and permits.

However, in the Genocide Convention Case, the ICJ stated that in acting to prevent genocide “every State may only act within the limits permitted by international law” (para 430). On one view, this rules out a use of force contrary to the prohibition of the use of force. This statement itself undermines the argument that the obligation to prevent genocide is a norm of jus cogens. Rather than the obligation prevailing over other rules of international law, the Court could be seen as saying that the obligation is subject to other rules of international law. On this view, the obligation of prevention does not seem to be one from which no derogation is permitted but instead one which may not derogate from other rules. From another perspective, the Court was never called in that case to consider the prevention of genocide as jus cogens. That point was not argued by the parties and the ICJ’s comment may not have been intended as saying anything on this point.

In a recent post on Opinio Juris iIt was argued that States have an obligation (derived from Common Article 1 of the 1949 Geneva Conventions) to prevent war crimes committed by other States, and that this obligation is a jus cogens obligation. Even assuming that this obligation to prevent war crimes exists under Common Article 1, or elsewhere in international law, it is doubtful that such an obligation arises out of  a peremptory norm. There is no evidence that this obligation is accepted by States as one which overrides all other obligations. Furthermore, in the Israeli Wall in Palestine Advisory Opinion, the ICJ, in para. 159, stated that obligations arising from Common Article 1 are to be fulfilled “while respecting the United Nations Charter and international law”. This makes it clear that any obligation arising under Common Article 1 does not prevail over other obligations under international law but is subject to those other obligations. This hardly sounds like a jus cogens norm.

In the Mothers of Srebrenica litigation it made good sense to argue that the obligation to prevent genocide was a jus cogens norm – it would have made it easier to assert that it also applies to the UN. However, if the obligation were not a jus cogens norm then the claimants would have had to have to found some other way to attach the international obligation to the UN. During the litigation the applicants relied upon Article I of the Genocide Convention as the basis for the obligation of the UN (and The Netherlands) to prevent the events in Srebrenica. As a state party to the Genocide Convention, this sounds perfectly reasonable with respect to The Netherlands. Indeed, the ICJ recognized this treaty obligation in the Genocide Convention Case. However in doing so, the ICJ was very careful in limiting its holding to the confines of the Genocide Convention only, explicitly refusing to step outside its boundaries ([ICJ judgment, para. 429]. Because the UN is not a party to the Genocide Convention (and indeed cannot be as it is only open to states as per Article XI), it therefore cannot be bound to the duty to prevent genocide as per Article I as treaty law. This simple fact raises another question: if the prevention of genocide is not a jus cogens norm, then is the UN actually obliged at all to prevent genocide, and if so, on what basis? Only if the UN had an international obligation would any of the issues discussed in the judgments even be relevant. If no duty to prevent genocide exists outside of the Genocide Convention, then that should have been the end of the matter. Instead, the Dutch courts (and arguably the ECtHR) proceeded on the assumption that the Genocide Convention’s prevention of genocide provision applied to the UN (originally as jus cogens but alternatively as treaty law), without scratching the surface and realizing the conceptual difficulty with this proposition.

All of this is not to say that Article I of the Genocide Convention’s obligation to prevent of genocide could not apply as customary international law. It may very well be so. However, this would have required an exploration of practice and opinio juris in order to attempt to bind the UN to such an obligation. The sparse practice on preventing genocide could have made such an exercise difficult. We should also remember here that customary law can co-exist side by side with treaty law; this was explicitly recognized by the ICJ in Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (ICJ jurisdiction and admissibility judgment, para. 73). The prevention of genocide could also be of the same nature, but it was the prerogative of the courts to undertake the analysis to reach that conclusion. They did not do so.

In the Mothers of Srebrenica cases, the courts probably found it easier to decide that allegations of a violation of a jus cogens norm do not defeat immunity than to make a decision on whether the norm at issue was even a norm of jus cogens. Given the rule ultimately relied on by the courts about the lack of normative hierarchy of jus cogens over immunity, it is perhaps not surprising that they did not decide on whether the obligation to prevent is actually a rule of jus cogens (or not). However, in reaching their decisions the courts too readily assumed that we are even talking about violations of jus cogens norms on the part of the UN. Violations of jus cogens were surely committed in Srebrenica. But it is not clear that any norm that the UN may have violated was a norm of jus cogens.

With the ECtHR’s ruling, the Mothers of Srebrenica litigation against the UN has reached the end of the road. However, we are no closer to finding out about the true nature of the issue at the core of the case: the obligation to prevent genocide at international law. Instead, because of its conflation with the separate prohibition on the commission of genocide, we have lost an opportunity for at least some good (in a jurisprudential sense) to arise from the litigation. It is hoped that future cases take this discussion further.