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A Duty to Prevent Genocide

Due Diligence Obligations among the P5

John Heieck

This perceptive book analyzes the scope of the duty to prevent genocide of China, France, Russia, the UK, and the US in light of the due diligence standard under conventional, customary, and peremptory international law. It expounds the positive obligations of these five states to act both within and without the Security Council context to prevent or suppress an imminent or ongoing genocide.
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Introduction

John Heieck

Since the Second World War, the prohibition of the use of force has been the cornerstone upon which the entire edifice of the United Nations (UN) peace and security system has been built. It was designed specifically to outlaw the use of force as a means by which states might resolve their international disputes. In its stead, the following system of the use of force was put in place: states may engage in force only if (a) they are acting in self-defense pursuant to Article 51 of the Charter of the United Nations (UN Charter),1 or (b) they have been authorized by the Security Council to use force under Chapter VII of the UN Charter. There are no other exceptions available in the UN system. The goal of such a system was simple: in order to avoid a devastating third world war, the jus ad bellum in the post-war era would be tightly constrained.

During the building of the UN system, the law of genocide was undergoing a contemporaneous construction. Responding to the atrocities of the Holocaust, the law of genocide culminated in the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).2 Article I of the Genocide Convention provided for the prohibition, prevention, and punishment of the crime of genocide. However, due to the political deadlock between the United States (US) and the Union of Soviet Socialist Republics (USSR) during the Cold War, the operationalization of both the UN system and the Genocide Convention became frozen.3

The deep freeze began to thaw with the fall of the Berlin Wall, and with it, the collapse of the Soviet Union. The genocides in Rwanda (1994) and Srebrenica (1995) soon captured the attention of the international community, as the ‘great powers’ of the international order grappled with how to respond to such mass atrocities. Due to their failure to prevent these genocides, the five permanent members of the Security Council – China, France, Russia, the United Kingdom (UK), and the US (i.e. the P5) – devised a means by which the perpetrators of the Rwandan Genocide and the Srebrenica Massacre would be punished. Acting pursuant to Chapter VII of the UN Charter, the Security Council created the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Over the course of the next 20 years, the ICTR and ICTY brought those most responsible for genocide, among other crimes, to justice. Nevertheless, one question remained echoing in the halls of the ad hoc tribunals: how could these crimes have been prevented from occurring in the first place?

In the aftermath of the genocides in Rwanda and Srebrenica, it became clear in the correspondence of the ‘great powers’ that the consequences of labeling these genocides as such would trigger an obligation to ‘actually do something’ about them. As a result, politics once again interrupted the operationalization of the duty to prevent genocide. In response, international scholars and world leaders devised a doctrine that would address this lack of political will: it was called the ‘responsibility to protect’ doctrine.

The ‘responsibility to protect’, or ‘R2P’ for short, was unanimously adopted by representatives from 191 countries, including 150 heads of state or government, at the UN World Summit in September 2005.4 R2P is a doctrine that posits the following:5 each state has the responsibility to protect its populations from, and prevent the commission of, genocide, war crimes, crimes against humanity, and ethnic cleansing.6 If a state is unable to protect its populations and prevent these mass atrocity crimes, then the international community of states, acting through the UN, has a responsibility to assist the state in doing so.7 If, however, the state is unwilling to protect its populations and prevent these crimes, or if it is actively targeting its own people, then the international community of states, acting through the UN Security Council, has a responsibility to protect these populations and prevent these crimes through a variety of peaceful – and even forceful – measures.8

Although 191 states unanimously adopted the R2P doctrine in the 2005 World Summit Outcome Document (WSOD), R2P was initially intended to be, and has ultimately become, a largely political doctrine that simply reinforces the collective peace and security system of the UN, and with it, the preeminent role of the Security Council (in general) and the P5 (in particular) in maintaining international peace and security in accordance with the tenets of the UN Charter. Notwithstanding its non-binding nature, however, R2P does encapsulate four binding legal norms (albeit in varying stages of development): genocide, war crimes, crimes against humanity, and ethnic cleansing. R2P further emphasizes the prevention of these crimes as a matter of state responsibility. Yet, as a political doctrine, R2P has failed to elucidate the legal scope, normative content, and resultant consequences of these four core crimes and the prevention thereof. These shortcomings have been further complicated by the unforeseen consequences of the operationalization of R2P in Libya.

In early 2011, fighting broke out between government and rebel forces across Libya. In an attempt to prevent Muammar Gaddafi’s threatened crimes against humanity against the civilian population, the Security Council passed Resolution 1970 under Chapter VII of the UN Charter.9 After recalling ‘the Libyan authorities’ responsibility to protect its population’,10 the Security Council imposed a number of Article 41 measures against Libya, including an International Criminal Court (ICC) referral,11 an arms embargo,12 a travel ban,13 and an asset freeze.14 When these measures failed to stop the violence in Libya, the Security Council passed Resolution 1973 under Chapter VII of the UN Charter.15 After reiterating ‘the responsibility of the Libyan authorities to protect the Libyan population’, the Security Council imposed a number of Article 42 measures on Libya, including instituting a no-fly zone,16 strengthening the arms embargo,17 and authorizing the use of force to protect civilians.18 The latter was circumscribed, however, by ‘excluding a foreign occupation force of any form on any part of Libyan territory’.19 Pursuant to Resolution 1973, NATO led the airstrikes against the Gaddafi regime, which had threatened to ‘cleanse’ the entire city of Benghazi.20 The initial airstrikes were successful in stopping the Gaddafi advance; however, problems soon began to emerge.

Although Resolution 1973 excluded a foreign occupation force in Libya as part of NATO’s exercise of ‘all necessary means’ to protect the Libyan population, NATO nevertheless provided the Benghazi rebels with arms. China and Russia protested against such a move, arguing that the arming of Benghazi rebels violated the ‘spirit’ of Resolution 1973. The provision of arms to the Benghazi rebels soon shifted the balance of power in Libya, and on 20 October 2011, Gaddafi was captured and killed by rebel forces. China and Russia once again condemned these actions, arguing that the purpose of Resolution 1973 was not to effect ‘regime change’ in Libya. Given the geopolitical disaster of the US’s policy of regime change in the Iraq War of 2003, China and Russia became suspicious that regime change in Libya was always part of NATO’s plans. This would have untold consequences in the Syrian Civil War.

Around the same time that fighting broke out in Libya, civilians began protesting Bashar Al-Assad’s government as part of the wider ‘Arab Spring’. Assad responded with widespread and systematic attacks against the civilian population. Despite the international outcry against Assad’s crack down, China and Russia vetoed three Security Council resolutions aimed at preventing crimes against humanity, and later, war crimes, in Syria, due in large part to their fear of regime change and the resultant consequences. These vetoes effectively sounded the death knell of the further operationalization of the responsibility to protect doctrine in Syria. Nevertheless, with the rise of the so-called ‘Islamic State’ (i.e. ISIS, ISIL, or Daesh), the duty to prevent genocide took on a whole new meaning. Daesh threatened the Yazidi, Christian, and Shia Muslim minorities in northern Iraq and eastern Syria with genocide.21 In response, the US, UK, France, and Russia responded by pounding Daesh positions with airstrikes. While none of these states expressly stated that they were acting out of a duty to prevent genocide in Syria and Iraq, their actions belied their true intentions. In short, while Syria may have signaled the end to the operationalization of the responsibility to protect doctrine, it also demonstrated the continuing relevancy of the duty to prevent genocide.

The duty to prevent genocide is the focus of this book. The questions with which this book is concerned are: what is the legal scope, normative content, and resultant consequences of the duty to prevent genocide? How does the duty to prevent genocide affect the actions of the P5 when they are acting within and without the Security Council context? How does the duty to prevent genocide affect the bedrock principle of the current international order – i.e. the prohibition of the use of force? To answer these questions, it is necessary to begin with genocide itself.

Genocide is ‘the crime of crimes’22 that is ‘worse than war’.23 It is a crime that is as old as humanity itself.24 Yet, it is a crime that was not given a name until 1945,25 recognized as a crime until 1946,26 or defined until 1948.27 It is also a crime the prevention of which was not litigated in a court of law for almost 60 years. In 1948, Article I of the Genocide Convention provided that the states parties thereto had a duty to prevent genocide.28 In 2007, in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Bosnian Genocide case),29 the International Court of Justice (ICJ or the Court) partially circumscribed the legal scope of the duty to prevent genocide under Article I of the Genocide Convention. This book takes up where the Bosnian Genocide case left off; it will fully define the legal scope, normative content, and consequences flowing from the duty to prevent genocide under conventional, customary, and peremptory international law, and it will do so with a particular focus on how the legal aspects of the duty to prevent genocide affect the ‘great powers’ of the international order – i.e. the five permanent members of the Security Council (P5) – with respect to their actions within and without the collective peace and security system of the UN.

To accomplish this task, this book will be divided into four chapters. Chapter 1 will address the duty to prevent genocide under Article I of the Genocide Convention. In order to situate Article I in the correct context, Chapter 1 will focus on the holding of the ICJ in the Bosnian Genocide case. In particular, it will examine the Court’s use of the ‘due diligence’ standard to explicate the scope of the duty to prevent genocide. Chapter 1 will demonstrate that the due diligence standard requires that the state in question must have the necessary means, capacity to effectively influence, and knowledge of an imminent or ongoing genocide in order to trigger that state’s duty to prevent genocide. Chapter 1 will then examine how this due diligence standard, if taken to its logical conclusion, affects the P5 when they are acting within and without the Security Council. By adopting Justice Robert H. Jackson’s three-part test for the legitimate use of executive authority from Youngstown Sheet & Tube Co. v. Sawyer (the Steel Seizure case)30 as the analytical framework for this examination, Chapter 1 will argue that the P5 must first cooperate in negotiating and voting for, and not vetoing, Security Council resolutions aimed at preventing genocide. Chapter 1 will then argue that, if this cooperation within the Security Council fails, or if a member of the P5 vetoes such a resolution, then the remaining non-vetoing P5 must cooperate in a variety of ways outside the Security Council to discharge their duty to prevent genocide. Lastly, Chapter 1 will argue that, if this cooperation fails, the duty to prevent genocide does not also fail; instead, the duty to prevent falls to the relevant member(s) of the P5 to discharge their duty by protecting, by unilateral means if necessary, the relevant national, ethnic, racial, or religious groups under threat of or being subjected to genocide. Chapter 1 will conclude that the US, with its unparalleled military and economic strength, is currently the ultimate duty-bearer with respect to the duty to prevent genocide under Article I of the Genocide Convention.

Chapter 2 will address the duty to prevent genocide under customary international law. While there are 147 states parties to the Genocide Convention, including all five members of the P5, this analysis is necessary to determine if the duty to prevent genocide binds all states as a matter of customary, as opposed to merely conventional, law. To this end, Chapter 2 will begin by analyzing the traditional two-part test for customary international law as promulgated in the North Sea Continental Shelf cases: state practice and opinio juris.31 Chapter 2 will then challenge this traditional test by examining the ICJ’s holding in the Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Nicaragua case).32 Relying on the observations of Frederic Kirgis in his seminal article ‘Custom on a Sliding Scale’, Chapter 2 will argue that, in cases of fundamental importance, such as cases involving the prohibition of the use of force and the prohibition of genocide, the test for customary international law is satisfied if there exists uncontroverted opinio juris on the subject. Chapter 2 will then apply this test to the duty to prevent genocide, and will contend that the requisite uncontroverted opinio juris exists for this compelling norm; meaning, that the duty to prevent genocide binds all states – even non-states parties to the Genocide Convention – as a result of customary international law. Chapter 2 will also address possible counter-arguments to this position, in particular the notion that the ‘responsibility to protect’ doctrine militates against such a contention, and will argue that such counter-arguments, which are largely political in nature, hold little sway over the customary international law analysis. In conclusion, Chapters 1 and 2 will argue that the P5 must do everything within their power – including using force if necessary – to prevent an imminent or ongoing genocide from occurring.

Chapter 3 will discuss whether a conflict exists between the P5’s duty to prevent genocide under Article I of the Genocide Convention and customary international law, on the one hand, and the P5’s rights and duties under the relevant provisions of the UN Charter and rules of customary international law, on the other. This discussion is necessary because if a conflict exists between these respective norms, then the conflict will have to be resolved using the relevant public ‘conflict of laws’ mechanisms available under general international law. To accomplish this task, Chapter 3 will first review the P5’s rights under Articles 39, 41, 42, and 27(3) of the UN Charter. Chapter 3 will then determine that the P5 have near-absolute discretion in deciding whether a threat to international peace and security exists under Article 39, whether peaceful or forceful measures should be imposed under Articles 41 and 42, respectively, and whether a ‘decision’ of the Security Council should be vetoed under Article 27(3). In light of this fact, Chapter 3 will conclude that a conflict exists between the P5’s mandatory duties to prevent genocide under Article I of the Genocide Convention and customary international law and the P5’s permissive rights under Articles 39, 41, 42, and 27(3) of the UN Charter.

Chapter 3 will next review the P5’s duties under Article 2(4) of the UN Charter and customary international law. In particular, Chapter 3 will determine, based on the prohibition of the use of force under conventional and customary law, that the P5 must not engage in the use of force unless they are acting in self-defense under Article 51 or pursuant to a Security Council authorization under Chapter VII. In sum, Chapter 3 will conclude that a conflict exists between the duty to prevent genocide under Article I of the Genocide Convention and customary international law, on the one hand, and the aforementioned rights and duties under the UN Charter and customary international law, on the other. As a result, Chapter 3 will contend that the relevant conflict of laws rules under general international law must be utilized to resolve the conflict between these antithetical norms.

In order to resolve these conflicts, Chapter 4 will analyze the three most relevant conflict of laws mechanisms under general international law: the so-called ‘supremacy clause’ under Article 103 of the UN Charter; the notion of jus cogens norms under Articles 53 and 64 of the Vienna Convention on the Law of Treaties (VCLT);33 and the phenomenon of erga omnes obligations as recognized in the Case Concerning Barcelona Traction, Light, and Power Co., Ltd. (Belgium v. Spain) (Barcelona Traction case).34 Chapter 4 will first review Article 103, and will note that, in cases of conflict between a norm in question and a provision of the UN Charter, Article 103 controls the resolution of the conflict in favor of the latter unless the norm in question is a jus cogens norm. Article 53 of the VCLT defines a jus cogens norm as ‘a peremptory norm of general international law that is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.35 In light of this definition, Chapter 4 will discuss jus cogens norms in detail, and will observe that, if a provision of the UN Charter conflicts with a norm of jus cogens, the latter prevails. After analyzing the historical antecedents and theoretical underpinnings of jus cogens, Chapter 4 will then promulgate a three-part test by which such peremptory norms are identified.

The first consideration in identifying a jus cogens norm is whether ‘a very large majority’ of states accepts and recognizes the norm in question. This acceptance and recognition is evidenced by the conclusion of general multilateral treaties, the creation of customary international law, and the existence of general principles of law to which the very large majority of states have consented. Chapter 4 will argue that, while the acceptance and recognition of the norm in question does not entitle a state or a small minority of states from blocking the creation of jus cogens norms, a reservation or objection to a particular treaty or customary rule, respectively, may militate against its peremptory norm-creative effect. The second consideration is whether the candidate treaty provisions, customary norms, and general principles are comprised of a special subject matter, which protects the overriding interests and fundamental values of the international community of states as a whole. In multilateral treaties, this special subject matter can be found in the object and purpose of the convention, which, like the conventional provisions themselves, the very large majority of states have agreed to and reduced in writing. The third consideration relates to the ‘non-derogability’, and therefore ‘non-bilateralizability’, of the norm in question. This means that states may not contract their way out of the norm unless they do so with a norm having the same peremptory character. This also means that the norm in question cannot be subordinated to any other norm in international law.

With this three-part test complete, Chapter 4 will then apply the test to the duty to prevent genocide, and will contend that the duty to prevent genocide satisfies all three factors of the test and therefore amounts to a norm of jus cogens. As a consequence, Chapter 4 will argue that the P5’s duty to prevent genocide supersedes the P5’s rights and duties under conventional and customary law. As such, notwithstanding the relevant provisions of the UN Charter and their customary counterparts, the P5 must do everything within their power – including using force if necessary – to prevent an imminent or ongoing genocide if they are to discharge their duty to prevent genocide and avoid international responsibility.

In addition, Chapter 4 will address some potential pitfalls in this analysis; notably, the contention that the prohibition of the use of force also amounts to a jus cogens norm. Chapter 4 will note, however, that the prohibition of the use of force fails the non-bilateralizable prong of the three-part test; therefore, despite its conventional and customary character, the prohibition fails to rise to the level of a jus cogens norm. In the alternative, Chapter 4 will argue that the prohibition of aggression – which has the same character as the prohibition of the use of force – has supplanted the latter under peremptory law. Additionally, Chapter 4 will note that, even if the prohibition of the use of force is a jus cogens norm, the prevention of genocide still prevails because of its lex specialis status. Whether conflict or not, this book will ultimately contend that the peremptory duty to prevent genocide supersedes the prohibition of the use of force. Finally, Chapter 4 will briefly analyze the phenomenon of erga omnes obligations from the Barcelona Traction case, and will conclude, based on the nature of such obligations, that they are largely irrelevant with respect to a conflict of laws analysis in this case.

The Conclusion of the book will summarize the aforementioned findings and will offer some parting thoughts. The book will address the appearance that it is proposing a broad doctrine on the use of force, and will emphasize that the use of force in pursuit of the duty to prevent genocide is naturally limited by the definition of the term ‘genocide’ in Article II of the Genocide Convention.36 Article II requires the specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such. If that specific intent is left wanting, then the crime in question is not genocide, which in turn, means that the duty to prevent, as described in this book, is not triggered. To this end, the ICJ noted in the Bosnian Genocide case that, in order for the duty to prevent genocide to be triggered, the genocidal actors in question must be ‘suspected of preparing genocide, or reasonably suspected of harboring specific genocidal intent’.37 As noted in Chapter 1, this specific intent may be proven by the general context surrounding the imminent genocide or by the existence of a plan or policy to commit genocide. The specific intent requirement therefore serves as a natural limitation on the duty to prevent genocide and all that it entails.38

Before analyzing these matters, it is worth explaining why this book is focusing on the P5. While it is debatable whether all members of the P5 truly reflect the ‘great powers’ of the modern international order, these veto-wielding states unquestionably serve as the great powers within the UN system, from which all authorizations of the use of force – save self-defense and, as argued throughout this book, the duty to prevent genocide – must emanate in order for such force to be lawful under the collective peace and security system of the UN. With that said, for sake of clarity, when this book refers to the ‘P5’, it is referring not to a new or separate subject of international law; it is, for sake of convenience, merely referring to five states – i.e. China, France, Russia, the UK, and the US.

Finally, mention must be made to the use of US jurisprudence throughout the book. In some instances, US law is relied upon because the international legal norm under consideration owes its origins (at least in part) to US case law or other legal principles. In this regard, the legal norms of ‘due diligence’ and ‘reasonable suspicion’ as promulgated by the ICJ in the Bosnian Genocide case are particularly relevant. In other instances, US law is relied upon because the standard in question is substantially affected by the practice of a ‘specially affected’ state, the US. In this regard, the use of Justice Robert H. Jackson’s adapted test from the Steel Seizure case vis-à-vis the propriety of P5 action in the face of imminent genocide is especially poignant. Because the duty to prevent genocide requires the P5 to do everything within their power to prevent genocide under certain, highly qualified circumstances, it makes sense to rely upon the law of the most powerful state in the international order – the US – in explicating the full extent of this duty. For this reason, US law is relied upon to the extent that it is in this book.

1   Charter of the United Nations (1945), 892 UNTS 119 (1945).

2   Convention on the Prevention and Punishment of the Crime of Genocide (1948), 78 UNTS 277 (1951) [hereinafter Genocide Convention].

3   For a critical historical analysis of the US and the USSR’s approaches to the drafting of the Genocide Convention, see A. Weiss-Wendt, ‘The Soviet Union and the Genocide Convention: An Exercise in Cold War Politics’ inA. BIEŃCZYK-MISSALA and S. Dębski (eds.), Rafał Lemkin: A Hero of Humankind, The Polish Institute of International Affairs, Warsaw 2010, at 179–94, esp. 179 (opining that: ‘The ideological adversaries [i.e. the United States and Soviet Union] worked hard to install safeguards that would make it difficult, if not utterly impossible, to use the Genocide Convention as legal blackmail. In effect, these efforts rendered the Genocide Convention dysfunctional.’).

4   World Summit Outcome Document, UN Doc.A/60/L.1 (2005) [hereinafter WSOD].

5   WSOD, at paras. 138 and 139. See also International Commission on Intervention and State Sovereignty, The Responsibility to Protect, International Development Research Centre, Ottawa 2001; A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc.A/59/565 (2004); In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc.A/59/2005 (2005); Security Council Resolution 1674 on ‘Protection of Civilians in Armed Conflict’, UN Doc.S/RES/1674 (2006); Implementing the Responsibility to Protect, Report of the Secretary-General, UN Doc.A/63/677 (2009); Security Council Resolution 1894 on ‘Protection of Civilians in Armed Conflict’, UN Doc.S/RES/1894 (2009); Early Warning, Assessment and the Responsibility To Protect, Report of the Secretary-General, UN Doc.A/64/864 (2010); The Role of Regional and Sub-Regional Arrangements in Implementing the Responsibility to Protect, Report of the Secretary-General, UN Doc.A/65/877 – S/2011/393 (2011); Responsibility to Protect: Timely and Decisive Response, Report of the Secretary-General, UN Doc.A/66/874 – S/2012/578 (2012); Responsibility to Protect: State Responsibility and Prevention, Report of the Secretary-General, UN Doc.A/67/929 – S/2013/399 (2013); Fulfilling our Collective Responsibility: International Assistance and the Responsibility To Protect, Report of the Secretary-General, UN Doc.A/68/947 – S/2014/449 (2014); A Vital and Enduring Commitment: Implementing the Responsibility to Protect, Report of the Secretary-General, UN Doc.A/69/981 – S/2015/500 (2015).

6   WSOD, at para. 138.

7   Ibid. at paras. 138 and 139.

8   Ibid. at para. 139.

9   Security Council Resolution 1970 (Libya), UN Doc.S/RES/1970 (2011).

10 Ibid. at 2.

11 Ibid.

12 Ibid. at 3.

13 Ibid. at 4.

14 Ibid.

15 Security Council Resolution 1973 (Libya), UN Doc.S/RES/1973 (2011).

16 Ibid. at 3.

17 Ibid. at 4.

18 Ibid. at 3.

19 Ibid.

20 Al-Jazeera, ‘No Let Up In Gaddafi Offensive: Libyan Leader Warns the People of Benghazi His Army Is Coming With Full Force and There Will Be “No Mercy”’, 17.03.2011 <http://www.aljazeera.com/news/africa/2011/03/2011317645549498.html> accessed 19.07.2016.

21 J. Berlinger, ‘Who are the religious and ethnic groups under threat from ISIS?’, CNN, 09.08.2014 <http://edition.cnn.com/2014/08/08/world/meast/iraq-ethnic-groups-under-threat-isis/> accessed 21.07.2016.

22 W. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge University Press, Cambridge 2006, at 162 (quoting, inter alia, Prosecutor v. Kambanda (ICTR-97-23-S), Judgment and Sentence, 4.9.1998, at para. 16).

23 D.J. Goldhagen, Worse than War: Genocide, Eliminationism, and the Ongoing Assault on Humanity, Public Affairs, New York 2009, at 33.

24 W. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn., Cambridge University Press, Cambridge 2009, at 1 (quoting J-P. Sartre, ‘On Genocide’ in R.A. Falk, G. Kolko and R.J. Lifton (eds.), Crimes of War, Random House, New York 1971, 534–49, at 534).

25 Schabas, supra n 22, at 29. See also R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Carnegie Endowment for World Peace, Washington 1944, at 79.

26 The Crime of Genocide, General Assembly Resolution 96(I), UN Doc.A/RES/96(I), 11.12.1946.

27 Genocide Convention, at art. II.

28 Ibid. at art. I.

29 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, I.C.J. Reports 2007, p. 43 [hereinafter Bosnian Genocide case].

30 Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952).

31 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 3.

32 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Judgment, I.C.J. Reports 1986, p. 14.

33 Vienna Convention on the Law of Treaties (1969), 1155 UNTS 331 (1980) [hereinafter VCLT], at arts. 53, 64.

34 Case Concerning Barcelona Traction, Light, and Power Co., Ltd. (Belgium v. Spain), I.C.J. Reports 1970, p. 3.

35 VCLT, at art. 53.

36 See Genocide Convention, at art. II.

37 Bosnian Genocide case, at para. 431.

38 For more on the specific intent requirement of the crime of genocide, see Schabas, supra note 22, at 241–306.