Due Diligence Obligations among the P5
Article I of the 1948 Genocide Convention1 provides that the states parties thereto have a duty to prevent genocide. This duty is reflected in customary international law as well. However, it was not until the 2007 Bosnian Genocide case2 that the legal scope, normative content, and resultant consequences of the duty to prevent genocide began to be defined. In that case, the ICJ stated that the corpus of the duty to prevent genocide is determined by the due diligence standard. The due diligence standard provides that, if a state possesses the capacity to effectively influence the relevant genocidal actors and the knowledge of a serious risk that genocide is likely to occur, the state has a positive duty to do everything within its power to prevent the genocide. The Court, in effect, explained that the capacity to effectively influence is determined by the principle of common but differentiated responsibilities; meaning, that the more a state can do, the more the state must do. The Court also explained that the knowledge requirement is determined by a ‘knew or should have known’ standard, which is satisfied with either actual or constructive evidence. If these two elements are satisfied, the Court noted that the state’s duty to prevent genocide is triggered; meaning, the state has to use its best efforts within the means available to it to prevent the genocide from occurring, in order to avoid international responsibility. The Court emphasized the importance of cooperation with other states in...
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