Due Diligence Obligations among the P5
Chapter 2: The P5’s duty to prevent genocide under customary international law
In the 2007 Bosnian Genocide case, the International Court of Justice largely limited its analysis of the duty to prevent genocide to the conventional question; it did not specifically address whether the duty to prevent genocide was a norm of customary international law. This deliberate omission on the part of the Court raised the issue of whether the duty to prevent genocide, as a customary norm, bound all states – not just states parties to the Genocide Convention. A Duty to Prevent Genocide: Due Diligence Obligations Among the P5 takes up this issue in the second chapter. It first analyzes the traditional two-prong ‘test’ for customary international law – i.e. state practice and opinio juris – in light of the ICJ’s seminal North Sea Continental Shelf and Nicaragua cases. It then abandons this two-pronged approach in favor of Frederic Kirgis’ renowned ‘sliding scale theory of custom’, which posits that fundamental norms of the international community may arise to the level of customary international law if there exists uncontroverted opinio juris on the matter. With this test in place, the second chapter systematically and critically analyzes the uncontroverted opinio juris of the norm of genocide prevention based on the historical development of the norm from 1948 to the present day. The chapter concludes by addressing, and then rejecting, possible counter-arguments, such as whether the development of the ‘responsibility to protect’ norm has any impact on this analysis.
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