Abstract
Third states occasionally incur human rights obligations towards people beyond their territory and jurisdiction. The first part of this chapter discusses which obligations to prevent gross human rights violations distinguished in Chap. 2 can be incurred by third states and on what basis. The content and scope of these obligations are then analyzed based on the timeline . Third states can have: (i) Long-term obligations to include bases in their legal framework to exercise criminal jurisdiction over acts of torture that took place outside the state’s jurisdiction ; (ii) Short-term obligations and obligations to prevent continuation of genocide by employing all means reasonably available ; and (iii) Obligations to prevent recurrence to investigate, prosecute and punish acts of torture that took place outside a state’s jurisdiction. Compared to earlier chapters, third state obligations to prevent appear fragmented and unevenly spread out over the different temporal phases. The second part of this chapter explores several developing third state obligations , such as obligations to assist and cooperate for the full realization of economic, social and cultural rights and an obligation to cooperate to bring serious violations of a peremptory norm to an end . These and other developing obligations show increasing recognition of the important role third states can play in the prevention of gross human rights violations. Together, they offer great potential to strengthen third state obligations to prevent gross human rights violations in all temporal phases.
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Notes
- 1.
The term “third states” is used to describe states that do not exercise territorial or extraterritorial jurisdiction over the people whose human rights are affected. Third states are sometimes also referred to in literature as “bystander states.” See for example: Hakimi 2010; Glanville 2012; the use of the term “third states” in this chapter is to be distinguished from the use of the term for states that are not individually affected, but have a legal interest in compliance with an international obligation in the sense of Article 41 of the Articles on State Responsibility. See: Bird 2010.
- 2.
Convention for the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (Genocide Convention), Article 1; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, 26 February 2007, ICJ Rep 2 (Genocide (2007)), para 430.
- 3.
International Law Commission 2001a, Commentary to Article 41, para 3.
- 4.
Glanville 2012, p. 28.
- 5.
Hakimi 2010, p. 344: Notes that the practice and research is piecemeal and disjointed.
- 6.
Special Rapporteur Theo van Boven 2004, para 37: Besides the third state obligations to prosecute and punish contained in the CAT and IACPPT that will be discussed below, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has argued that the “the obligation to prevent torture […] necessarily includes the enactment of measures to stop the trade in instruments that can easily be used to inflict torture and ill-treatment.” This interpretation would mean that third states are obligated to regulate trade of such instruments to prevent torture abroad. He adds a list of recommendations that states can follow, such as monitoring the development of such instruments, strictly regulating their export and consider setting up international regulatory mechanisms in this area; Council of the European Union 2005, paras 1–19: A mechanism has been introduced at European level to regulate the trade of goods that could be used for capital punishment or torture. This is an interesting development, albeit only as closely related to the prevention of torture as non-proliferation agreements are to the prevention of arbitrary death. Whether it can be seen as an obligation inherent to the prohibition of torture can be contested.
- 7.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT), Articles 2, 11, 12 and 16; Inter-American Convention to Prevent and Punish Torture, opened for signature 9 December 1985, OAS TS 67 (entered into force 28 February 1987) (IACPPT), Article 6.
- 8.
See 3.1.1 C CAT and IACPPT.
- 9.
CAT, above n. 7, Article 5(1)c: “When the victim is a national of that State if that State considers it appropriate”; IACPPT, above n. 7, Article 12c: ibid.
- 10.
CAT, above n. 7, Article 5(1) a, b and (2): The CAT also adds that a state should assume criminal jurisdiction when acts of torture are committed on board a ship or aircraft registered in the state; IACPPT, above n. 7, Article 12; Nowak et al. 2008, pp. 310 and 314 onwards, 345; Committee Against Torture 2008, para 7: The phrase “in any territory under its jurisdiction” has been interpreted to include forms of personal jurisdiction. See 3.1.1.3 CAT and IACPPT.
- 11.
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2015, para 44.
- 12.
- 13.
Nowak et al. 2008, pp. 310–11.
- 14.
Kamminga 2001, p. 943.
- 15.
- 16.
CAT, above n. 7, Articles 5–9; IACPPT, above n. 7, Articles 11–14.
- 17.
CAT, above n. 7, Article 8; IACPPT, above n. 7, Article 13.
- 18.
CAT, above n. 7, Article 9.
- 19.
Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2015, paras 44 onwards.
- 20.
- 21.
- 22.
Nowak et al. 2008, pp. 470–2.
- 23.
Ibid., p. 492: In the drafting process, the phrase “committed in any territory under its jurisdiction” was removed from the text of the provision without reason. This could be argued to mean that the provision is not territorially limited, or that the limitation was so obvious that it seemed unnecessary to include it. In any case, courts have been reluctant to admit such cases; Parlett 2007, p. 403; ECtHR, Jones and Others v. the United Kingdom, Merits, 14 January 2014, nos. 34356/06 and 40528/06.
- 24.
See for example 4.3.2 Corporations Acting Abroad.
- 25.
See 3.1.1.4 Genocide Convention.
- 26.
The extraterritorial applicability of other provisions of the Genocide Convention remains unclear. Other provisions that are relevant in this chapter are Article 5, containing the obligation to enact the necessary legislation for the prosecution and punishment of genocide, and Article 8, containing a right to call upon the competent UN organs to take action. Because Articles 5 and 8 are also not on their face limited by territory, discussion of these provisions will be included below.
- 27.
Genocide (2007), above n. 2, paras 183–4.
- 28.
Tams et al. 2013, p. 47, paras 35 onwards: Notes that Article 1 of the Genocide Convention is silent on the issue of geographical applicability.
- 29.
Separate Opinion of Judge Tomka in Genocide (2007), above n. 2, para 64, quoting from Verbatim Record of Public Sitting (CR 2006/16, p. 15).
- 30.
Separate Opinion of Judge Tomka in Genocide (2007), above n. 2, para 67.
- 31.
Genocide (2007), above n. 2, paras 183 and 430–1: The ICJ first reiterated its 1996 judgment on preliminary objections, in which it decided that Articles 1 and 3 of the Genocide Convention “apply to a State wherever it may be acting or may be able to act in ways appropriate to meeting the obligations in question”; Gattini 2007a, pp. 699–700: “On the one hand [the Court] audaciously decided to disentangle the obligation to prevent in Article I of the Genocide Convention from any territorial link, substituting for the traditional concept of ‘jurisdiction’ the new and much vaguer one of ‘capacity to effectively influence’”; Tams et al. 2013, p. 48, para 38: “If the duty to prevent only applied within a state’s territory, or in areas under its jurisdiction, it would not go much beyond a duty of vigilance ‘at home’. […] However, as in practice, genocide […] ‘typically … presume[s] state participation’, it would not go much beyond a duty not to commit the crime. By contrast, a ‘global’ construction of a duty to prevent is much better able to give effect to the solemn pledge of state parties […] ‘to liberate mankind from [the] odious scourge [of genocide].”
- 32.
Separate Opinion of Judge Tomka in Genocide (2007), above n. 2, para 68: “In this case, it has not been established that the Federal Republic of Yugoslavia exercised jurisdiction in the areas surrounding Srebrenica where atrocious mass killings took place.”
- 33.
Hakimi 2010, p. 342: Describes the obligation to prevent genocide as an obligation to restrain third parties from committing abuse. Framed as such, the influence over the (potential) perpetrator is of manifest importance.
- 34.
- 35.
Rosenberg 2009, p. 469: Argues that “the bar remains very high for establishing the sufficient level of influence necessary for the legal duty to prevent to arise”; Hakimi 2010, pp. 364–5: Suggests Serbia only had an obligation to prevent the genocide because it substantially enabled it; Glanville 2012, p. 19: Mentions Rosenberg and Hakimi, but counters their interpretations; Gattini 2007a, pp. 705 and 713: “(…) all states had, at least in abstracto, a duty to prevent it.”
- 36.
- 37.
Separate opinion of Judge ad hoc Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, 13 September 1993, ICJ Rep 325, para 115.
- 38.
See 4.2.2.1 Genocide: The role of the capacity to effectively influence as a parameter for the content and scope of the obligation is further explained; Genocide (2007), above n. 2, para 430: The capacity to influence effectively is described as a “parameter”; see 3.2 Corresponding Obligations: Jurisdiction follows from forms of control over territory or people. The content and scope of corresponding obligations are not only informed by the level of control, but also by other legal, practical and power-related barriers.
- 39.
Tams et al. 2013, p. 51, para 45: “Delineation the general criterion of ‘capacity to influence’ is the key challenge.”
- 40.
Genocide (2007), above n. 2, para 430.
- 41.
- 42.
Tams et al. 2013, p. 52, para 46(ii).
- 43.
Gattini 2007a, p. 701; Charter of the United Nations , opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter), Articles 2(4) jo 42; Tams et al. 2013, p. 51, para 45 and p. 52, para 46: These authors interpret the legal factor both as a limit, and as a power that forms a parameter for the capacity to influence. They note that legal powers can also “recognize rights or duties of particular states: treaties designating particular states as protective powers are one illustration, special powers enjoyed under regimes of occupation another.”
- 44.
Gattini 2007a, pp. 699–700.
- 45.
Ruvebana 2014, p. 172: Argues that the geographical factor should in any case not be determinative, because it would exclude other states that are further removed. “Yet, the capacity to prevent may be absent even for a state close to the scene of events and may exist between a state concerned and the actors of genocide in a place very far from the scene of events […] Thus the criterion may be relevant, but it needs to be supplemented by other criteria.”
- 46.
Genocide (2007), above n. 2, para 430.
- 47.
Tams et al. 2013, p. 52, para 45(iii); Glanville 2012, p. 18: Mentions that the obligation is presumably particularly burdensome for “a great power that possesses the ability to persuade or compel persons to refrain from committing the crime” and less so for a “less influential and weaker state […]”; De Pooter 2009, pp. 299 and 305: Wonders whether members of the SC have an obligation to use the UN machinery to prevent genocide. “It is surprising that the Court does not go further in its enumeration of the parameters [which she takes to mean that the Court] refuses to draw an exhaustive list of parameters, letting the door open for a free assessment of future situations.”
- 48.
Genocide Convention, above n. 2, Article 6.
- 49.
Economic and Social Council 1947, Articles 6–8.
- 50.
Genocide (2007), above n. 2, paras 184 and 442; Separate Opinion of Judge Tomka in Genocide (2007), above n. 2, para 65.
- 51.
Genocide (2007), above n. 2, para 442.
- 52.
Genocide Convention, above n. 2, Article 6; Tams et al. 2013, p. 255, para 56.
- 53.
Tams et al. 2013, pp. 248–9.
- 54.
Schabas 2003; Genocide Convention, above n. 2, preamble: Describes genocide as an “odious scourge” and an international crime that is “contrary to the spirit and aims of the United Nations and condemned by the civilized world.”
- 55.
Schabas 2003, p. 60: Explains that the travaux préparatoires of the Genocide Convention show that the drafters sought to explicitly exclude universal jurisdiction for genocide, while it is now accepted at least as a permissive basis for prosecution; Ben-Naftali 2009, p. 48: Finds the ICJ’s interpretation of Article 6 “puzzling given that the interpretation of the Convention ‘must exclude any narrow or overly technical approach to the problems involved’, and that the judgment itself otherwise employs a purposive method of interpretation.” He claims that “a teleological reading of Article VI in the light of Article I and of other provisions of the Convention as well as in the light of later normative developments in both conventional and customary international law, supports the conclusion that the jurisdictional regime over perpetrators of genocide includes an obligation to exercise universal jurisdiction […].”
- 56.
Tams et al. 2013, p. 256, para 58(2).
- 57.
- 58.
CAT, above n. 7; IACPPT, above n. 7.
- 59.
Tams et al. 2013, p. 257, para 59: This position was not confirmed nor contradicted by the ICJ’s judgment in the Genocide case, because that judgment was rendered in the context where there was an international penal tribunal available, namely the ICTY, to prosecute suspects. The ICJ affirmed Serbia’s obligation to cooperate with the ICTY and not further discussion was needed; Schabas 2003, p. 60.
- 60.
CAT, above n. 7, Article 5; IACPPT, above n. 7, Article 12: Because of the presence of suspects who committed torture abroad within a state’s jurisdiction; or; Genocide Convention, above n. 2, Article 1 and Genocide (2007), above n. 2, para 430: Because of the geographical distance and close links with (potential) perpetrators of genocide abroad; CAT, above n. 7, Article 14: There are exceptions, such as the claimed obligation to ensure the right to an effective remedy of victims of torture, even if the acts took place abroad.
- 61.
- 62.
A recent development in the ECTHR’s case law suggests that third state obligations to prosecute and punish may also develop for other rights, such as the right to life: ECtHR, Gray v. Germany, Merits, 22 May 2014, no. 49278/09, paras 20, 29, 32, 40–1 and 93: The ECtHR took an unexpectedly broad approach towards the applicability of the procedural requirements attached to the right to life. The case concerned a German doctor who committed malpractice resulting in the death of a patient in the United Kingdom (UK), then to return to Germany. Both the UK and Germany started proceedings against the doctor, but he was tried in Germany. The victim’s children complained about the procedures in Germany, which were ultimately dismissed on the merits. But a remarkable step was taken at the admissibility stage. Or rather, a step was missed that perhaps should have been taken. Neither Germany nor the court considered whether Germany was at all obligated, in light of the jurisdictional limitation in Article 1 of the ECHR, to extradite or prosecute the doctor in the first place, considering the malpractice took place in the UK; Milanović 2014: The case opens the door to the argument that states are required to extradite or prosecute suspects of crimes other than torture that took place abroad, if the suspect is a national or present on their territory. Still, there is no cause to overgeneralize, as the case was rendered in a context where no argument was brought forward to contest applicability and therefore the broad approach may not be upheld.
- 63.
See 1.3.2 Temporal Phases.
- 64.
CAT, above n. 7, Article 2(1), 4; IACPPT, above n. 7, Article 6.
- 65.
Committee Against Torture 2008, paras 2 and 9; International Law Commission 2014a, para 17: “The effective fulfilment of the obligation to extradite or prosecute requires undertaking necessary national measures to criminalize the relevant offences, establishing jurisdiction over the offences and the person present in the territory of the State, investigating or undertaking primary inquiry, apprehending the suspect, and submitting the case to the prosecuting authorities (which may or may not result in the institution of proceedings) or extraditing, if an extradition request is made by another State with the necessary jurisdiction and capability to prosecute the suspect.”
- 66.
ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, 20 July 2012, ICJ Rep 422 (Belgium v. Senegal), paras 76–78: “The Court considers that by not adopting the necessary legislation until 2007, Senegal delayed the submission of the case to its competent authorities for the purpose of prosecution. […] Thus, the fact that the required legislation had been adopted only in 2007 necessarily affected Senegal’s implementation of the obligations imposed on it by Article 6, para 2, and Article 7, para 1, of the Convention”; Koutroulis 2014, para 18.
- 67.
Andenaes 1966, pp. 952–4: Describes the belief in general prevention as mostly an ideological conviction, but does not exclude that it exists. There is just a lack of empirical research that can prove it. Although some progress has been made, generally this still seems to be the case today. The article also proposes a set of nuances to take into account, such as cultural and personal differences; see 2.2 A. Long-Term Prevention: Although the preventive effect of both national and international criminal law remains speculative, making offences punishable by law is reasoned to have a long-term deterrent effect on potential perpetrators and lays the groundwork for a system that is capable of tracking and punishing violations.
- 68.
Belgium v. Senegal, above n. 66, para 75.
- 69.
Kamminga 2001, p. 954.
- 70.
CAT, above n. 7, Articles 8 and 9; IACPPT, above n. 7, Article 13: These Articles seek to remove obstacles to extradition, to support the obligations to establish criminal jurisdiction over suspected torturers on different bases and avoid safe havens. Extradition can be subject to certain requirements in domestic law; Nowak et al. 2008, pp. 369 and 383: Article 8 “establishes an obligation to treat torture as an extraditable offence in bilateral or multilateral extradition treaties between States parties and an obligation to recognize torture as an extraditable offence in domestic law.” Article 9 means that “the State in which the act of torture has been committed (the territorial State) and the State of which the suspected torturer is a citizen (the national State) are under an obligation to provide the forum State with all the evidence needed to proceed with the prosecution.”
- 71.
Genocide Convention, above n. 2, Article 5: The obligation to criminalize acts of genocide in Article 5 can be seen as having a general preventive effect of its own; Andenaes 1966, pp. 952–4: Such a general preventive effect has never been empirically proven, but is an aspiration and motivation for legislative action; Genocide (2007), above n. 2, paras 162 and 430–1: In the Genocide case, the court expressly stated that the obligation to prevent contained in Article 1 is broader in scope than the Articles in the Genocide Convention. However, it also limited the temporal scope of the obligation to the phases of short-term prevention and prevention of continuation, after a state knows or should have known that there is a serious risk that genocide may occur. Therefore, it would go too far to claim that third states are obligated to take long-term measures to prevent genocide abroad under the auspices of Article 1 of the Genocide Convention; Office on Genocide Prevention and the Responsibility to Protect 2014, pp. 9 and 18–9: Although no long-term obligations exist in the context of the Genocide Convention, long-term measures to prevent genocide may be expected to focus mostly on mitigating preconditions of genocide. This could for example take the form of targeted assistance and development cooperation.
- 72.
Genocide (2007), above n. 2, paras 184 and 442.
- 73.
Kamminga 2012, para 14.
- 74.
Genocide (2007), above n. 2, para 442; see also 3.3.1 Long-Term Prevention: States must introduce legislation that ensures that state officials that commit offences abroad can be punished.
- 75.
Netherlands International Crimes Act, 19 June 2003, Stb 2003, 270. http://wetten.overheid.nl/BWBR0015252/geldigheidsdatum_03-08-2009. Accessed 2 August 2017: Articles 2 and 3; Schabas 2003, p. 60: Mentions Canada and Germany as countries that “explicitly authorize universal jurisdiction for genocide.”
- 76.
Tams et al. 2013, pp. 252–4 and 256, para 58(3).
- 77.
Genocide Convention, above n. 2, Articles 6 and 7: “Genocide and the other acts enumerated in Article III shall not be considered political crimes for the purpose of extradition”; Tams et al. 2013, pp. 261 onwards: Extradition can be subject to other requirements in domestic law, for example based on the risk of death penalty or torture or protecting nationals against foreign jurisdiction.
- 78.
See 1.3.2 Temporal Phases; The term “violation” is used here as synonymous to an injurious event , referring to the substantive violation of an individual’s right either by state officials or private individuals.
- 79.
See for a more detailed description see 1.3.2 Temporal Phases.
- 80.
See 2.2.2 Short-Term Prevention.
- 81.
Genocide (2007), above n. 2, paras 430–1; see 4.1.2 Genocide Convention.
- 82.
Genocide (2007), above n. 2, paras 430–1.
- 83.
Tams et al. 2013, p. 49, paras 40–1: According to the authors, the trigger contains two elements: (i) A credible, plausible or real threat of genocide, meaning there is a background of “military build-up or incitement ”; and (ii) Awareness of the risk, which is a matter of evidence.
- 84.
Genocide (2007), above n. 2, para 431.
- 85.
Ibid., para 436.
- 86.
Ibis paras 436–7: Several documents detailing meetings between third state and IO officials with Milosevic, which were also used in the Milosevic trial before the ICTY, prove his awareness of the risk of a massacre when the VRS forces occupied the Srebrenica enclave.
- 87.
Grünfeld and Huijboom 2007, p. 240 citing Kofi Annan: “One of the reasons for our failure in Rwanda was that […] once it started, for too long we could not bring ourselves to recognize it, or call it by its name; Hong 2008, p. 265: “[D]etermining whether or not a situation constitutes genocide is a process fraught with biases”; Sarkin and Fowler 2010, p. 23: “It is important to address the use of the word “genocide” as the word itself is inherently political and comes, as argued above, with moral—if not legal—obligations. As noted, the word “genocide” was first applied to the situation in Rwanda by the RPF on April 13—just six days after the onset of violence. The events were not called “genocide” publicly, however, until fifteen days later, on April 28”; sometimes situations are still not recognized as genocide ex post facto, even though it does fit the legal criteria. Think of the controversy surrounding the Armenian Genocide. Recently, a SC resolution was vetoed by Russia that calls the Srebrenica massacre genocide, despite the fact that multiple international and national courts have already identified it as such. See: Sengupta S (2015) Russia Vetoes UN Resolution Calling Srebrenica ‘Crime of Genocide’. http://www.nytimes.com/2015/07/09/world/europe/russia-vetoes-un-resolution-calling-srebrenica-massacre-crime-of-genocide.html?_r=0. Accessed 2 August 2017; there is a push to move beyond semantics and act to prevent the risk and continuation of mass atrocities in general: Office on Genocide Prevention and the Responsibility to Protect 2014; Jacobs 2010.
- 88.
Genocide Convention, above n. 2, Article 2; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 19, risk factor 10: “Signs of an intent to destroy in whole or in part a protected group” can manifest itself, among others, through official documents, media records or other documents showing an intent/incitement to target a protected group, widespread discriminatory practice, dehumanization of a protected group, physical elimination or other forms of violence against members of a protected group; Ruvebana 2014, p. 109: “[T]he knowledge (or awareness) of the risk of genocide should not be confused with the certainty that genocide will occur.”
- 89.
Tams et al. 2013, p. 53, para 48: “Outside these special settings [referring to the territorial state and state’s that exercise extraterritorial jurisdiction ], the specific conduct required of third states where genocide appears likely to occur in a foreign country can only be described tentatively.”
- 90.
- 91.
Ben-Naftali 2009, p. 33.
- 92.
Genocide (2007), above n. 2, para 430.
- 93.
Ibid., para 438.
- 94.
Ibid., para 429: The Court confined itself “to determining the specific scope of the duty to prevent in the Genocide Convention […] to the extent that such a determination is necessary to the decision to be given on the dispute before it.”
- 95.
- 96.
Genocide (2007), above n. 2, para 430: “Various parameters operate when assessing whether a State has duly discharged the obligation concerned”; see 4.1.2 Genocide Convention; Tams et al. 2013, p. 53, para 49; Ben-Naftali 2009, p. 40; Glanville 2012, pp. 18–20: Suggests that for larger and wealthier states, the obligation to prevent will be more demanding than for smaller and less wealthy states.
- 97.
- 98.
Tams et al. 2013, p. 53, para 49.
- 99.
Genocide (2007), above n. 2, para 430: “The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law”; UN Charter, above n. 43, Articles 2(4) jo 42; see 3.3.1.1 Foreign State’s Legal and Administrative Framework and 3.3.2 Short-Term Prevention: Discusses whether and how the particular terms of a mandate affect the content and scope of extraterritorial human rights obligations. The role of a specific mandate is similar in the context of third state obligations : once a mandate exists it should allow state officials to function in a manner consistent with requirements under international human rights law. If a mandate is too restrictive in this regard, this points to a failure of a state’s long-term obligations, but it may nevertheless indirectly impact the content and scope of short-term obligations or obligations to prevent continuation. The biggest initial hurdle to third state obligations is often that there is no mandate in the first place. As long as there is no mandate (to use force), this does not obviate a third state’s obligation to prevent genocide by taking all other means reasonably available; Tams et al. 2013, p. 51, para 45.
- 100.
- 101.
Glanville 2012, p. 20.
- 102.
- 103.
Gattini 2007a, p. 704: “[I]t is only through temporally determinable elements, e.g. the presence of a real and serious danger of genocide, that the duty to prevent can be concretized”; Genocide (2007), above n. 2, 430; to further concretize the short-term obligation to prevent genocide, studies on causes and paths of escalation are very useful; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 4: Explains that from the ability to identify risk factors “it follows that we can also identify measures that can be taken by States and the international community to prevent these crimes.” Because of authoritative studies on paths of escalation leading to genocide, states are now more aware of what to look for to determine whether genocide is unfolding and what action could be required of them.
- 104.
- 105.
Tams et al. 2013, p. 51, para 45: “[T]he recognition of a duty to prevent adds very little to debates about the unilateral use of force to stop genocide in so-called ‘humanitarian interventions’”; two other measures indicated in the Genocide Convention could have a short-term preventive effect: calling upon UN organs to take action and prosecuting suspects of genocide. Neither of these are international obligations for third states. See: Genocide Convention, above n. 2, Articles 4 jo 6 and 8: Article 6 contains an express territorial limitation and Article 8 allows but does not require states to call upon UN organs; Genocide (2007), above n. 2, paras 184 and 442: States may exercise universal jurisdiction for acts of genocide; Ruvebana and Brus 2015, p. 29: Prosecuting suspects of acts of genocide can have a preventive effect. Prosecution by a third state could have a short-term preventive effect, for example when an individual suspected of committing acts prohibited under Article 3 of the Convention travels abroad and the third state takes action to prevent them from returning or committing acts of genocide in the direct future; Tams et al. 2013, p. 256, paras 58(2) and 53–4; Glanville 2012, p. 20; Bellamy and McLoughlin 2009, p. 17 and more detailed list of elements on pp. 19–20.
- 106.
UN Charter, above n. 43, Article 43(1): “All members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council , on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security”; Genocide (2007), above n. 2, 430; Tams et al. 2013, pp. 53–4, para 49; Simma et al. 2002, pp. 1351 onwards: “This fundamental obligation, however, exists only in accordance with one or more special agreements, and it is therefore transformed into a duty de negotiando et de contrahendo. Such negotiations should concern only the ‘how’, not the ‘if’, of the provision of forces […]”; Glanville 2012, p. 20: Glanville argues that states are legally bound to contribute troops if this is a measure “reasonably available” to them.
- 107.
- 108.
De Pooter 2009, pp. 299–300.
- 109.
Ryngaert and Buchanan 2011: Another way to approach this, is through the responsibility of the IO. States may be held responsible for offering “aid or assistance” to a violation by an IO, although it is questionable whether a vote would be sufficient. First, it would have to be established whether the IO is obligated to prevent genocide.
- 110.
The President of France, H.E. Mr. François Hollande, in his address at the General Debate of the 68th Session of the UNGA in 2013, called upon the permanent members of the SC to “collectively renounce their veto powers” in mass atrocity situations. http://www.globalr2p.org/our_work/un_security_council_code_of_conduct. Accessed 2 August 2017; Accountability Coherence Transparency Group 2015.
- 111.
Netherlands, The Hague District Court, Mothers of Srebrenica against the State, Merits Highest Instance, 16 July 2014, C/09/295247/HA ZA 07-2973, para 5.1: The Dutch State was held responsible for its cooperation with the VRS in the deportation of the relatives of ten claimants from the compound over which it had jurisdictional control , after which most of them were ill-treated and killed.
- 112.
Mothers of Srebrenica , above n. 111, paras 4.264, 4.329 and 4.331.
- 113.
Ibid., paras 4.151–4.164 and 4.179: The court did not apply Article 1 of the Genocide Convention directly, because it was considered to hold between Convention states and not grant rights directly to individuals. However, the court does consider the standard of care required by Article 6:162(2) Burgerlijk Wetboek to be informed by art 1 of the Genocide Convention.
- 114.
Ibid., paras 4.160–1 and 4.179: “The District Court is of the opinion however that through Dutchbat after the fall of Srebrenica the State had effective control as understood in the Al-Skeini judgment over the compound. […] The foregoing leads the District Court to the conclusion that by means of Dutchbat the State was only able to supervise observance of the human rights anchored in the ECHR and ICCPR vis-à-vis those persons who as of the fall of Srebrenica were in the compound.”
- 115.
Genocide (2007), above n. 2, 430; Mothers of Srebrenica , above n. 111, para 4.264: The court states that: “It is indisputable that during the transition period Dutchbat could not protect the refugees inside and around the mini safe area located outside the compound on its own, i.e. without outside help […].” This does not exclude the option that the Netherlands could have raised alarm at the international level, pushed for further negotiations about its withdrawal or even sent more military backup; A case has been brought against the Netherlands by Dutchbat veterans, claiming that they were sent on an impossible mission because they were ill-prepared and operated under limiting rules of engagement that resulted in their inability to protect the civilian population. This may point to a long-term failure on behalf of the state to carefully plan the operation: Pieters 2016.
- 116.
Genocide (2007), above n. 2, 430.
- 117.
Ibid.
- 118.
Ben-Naftali 2009, p. 42: “In cases where, arguably, only a combined effort may generate an effective ‘capacity to influence’, the line to be drawn between the capacity—and ensuing responsibility—of a single state and collective action is blurred.”
- 119.
UN Security Council 1993a: Demanded that all concerned treat Srebrenica as a safe area; UN Security Council 1993b: Extended the mandate of UNPROFOR to enable it to deter attacks against the safe areas and monitor the ceasefire; see 3.3.1.1 Foreign State’s Legal and Administrative Framework: It was argued that states have an obligation to carefully plan and control extraterritorial operations that could potentially result in deprivation of life, so as to allow state officials to live up to human rights obligations in the course of the operation; Pieters 2016: A domestic case was brought before a Dutch Court by Dutchbat veterans in June 2016, who claim that they were sent on an impossible mission in Srebrenica. As argued in Sect. 3.3.1.1 this could point to a failure of the long-term obligation to carefully plan and control the mission; Srebrenica is a disastrous example of inaction on the part of several other states that arguably had a capacity to influence effectively . Even though several states had made promises of air support and intelligence came to the attention of high state officials that Srebrenica would likely be attacked, US and NATO-led airstrikes were quietly paused shortly before the attack took place and the VRS killed over 8000 Muslim men and boys: Lake 1995, p. 1, para “Prospects of additional airstrikes” point (3): “[P]rivately we will accept a pause, but make no public statement to that effect.” p. 3: Warning that withdrawal from the Eastern enclaves had “the associated potential for a humanitarian nightmare for the civilians in the safe areas currently under the promise of UN protection”; UN Security Council 1991; UN Security Council 1993a, para 4: “Requests the Secretary-General […] to take immediate steps to increase the presence of UNPROFOR in Srebrenica and its surroundings; demands that all parties and others concerned cooperate fully and promptly with UNPROFOR towards that end.”
- 120.
Support can be found in the obligation to report war crimes: Mothers of Srebrenica , above n. 111, para 4.264: “In the opinion of the District Court Dutchbat ’s failure to report war crimes observed during the transition period constitutes a violation of generally accepted standards in accordance with law of custom, in connection with which special reference is made to 4.175–4.177 for the interpretation of the standard of care [referring to the obligation to prevent genocide].”
- 121.
See 1.3.2 Temporal Phases; The term “violation” is used here as synonymous to an injurious event , referring to the substantive violation of an individual’s right either by state officials or private individuals.
- 122.
See 1.3.2 Temporal Phases.
- 123.
- 124.
See 4.2.1.1 Torture; Belgium v. Senegal, above n. 66, para 75.
- 125.
CAT, above n. 7, Article 6(2); IACPPT, above n. 7, Articles 8 jo 14.
- 126.
CAT, above n. 7, Article 5(1)b; IACPPT, above n. 7, Article 12b; Nowak et al. 2008, pp. 310–11 and 345: “The active nationality principle serves the purpose of maintaining good relations with other States by ensuring that nationals of State A do not go unpunished in the event they escape prosecution by State B in which they committed a crime.” The forum state is required to “ensure the presence of such persons by effective custodial or non-custodial measures” and “carry out preliminary inquiries into the facts and notify other States parties of the custody and the findings of their investigations in order to facilitate possible extradition requests.”
- 127.
Belgium v. Senegal, above n. 66, paras 86 and 88; Koutroulis 2014, para 19.
- 128.
Belgium v. Senegal, above n. 66, paras 83–85: It is not sufficient for this preliminary enquiry to question the suspect to establish his or her identity and inform them of the charges against them.
- 129.
Ibid., para 83.
- 130.
Nowak et al. 2008, pp. 345 onwards.
- 131.
Belgium v. Senegal, above n. 66, para 95: Note that the ICJ’s assessment pertains only to the CAT, but its considerations are likely to be of analogous relevance for the IACPPT.
- 132.
If a custodial state refuses both to extradite or prosecute, that state will only be in violation of its obligation to prosecute.
- 133.
Belgium v. Senegal, above n. 66, paras 92 and 95: Despite Belgium’s claim that Senegal would be obligated to extradite Habré if it did not prosecute him, the ICJ stated that: “[E]xtradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State”; Nowak et al. 2008, pp. 359–60: “Since Article 5 does not establish any order of priority among the various grounds of jurisdiction, there exists no obligation of the forum State to extradite the alleged torturer to a State with a ‘better’ jurisdiction. But the forum State is under an obligation to proceed to prosecution. The choice between prosecution and extradition (aut dedere aut iudicare) is, therefore, an uneven choice”; Nollkaemper 2013, p. 504: Argues that the ICJ’s interpretation hampers the aim of the CAT to prevent impunity, by annihilating entitlements of other states instead of ensuring that a suspect is prosecuted by the state that has the “best normative entitlements to prosecute and that may be best equipped to do so.”
- 134.
CAT, above n. 7, Articles 8 and 9; IACPPT, above n. 7, Article 13: Extradition can be subject to certain requirements in domestic law.
- 135.
CAT, above n. 7, Article 7(2): “These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in Article 5, para 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in Article 5, para 1”; Belgium v. Senegal, above n. 66, paras 114–7.
- 136.
Belgium v. Senegal, above n. 66, para 94; Nowak et al. 2008, p. 361: “As one cannot establish any meaningful obligation of a State to the effect that its independent courts shall convict and punish a perpetrator, international law cannot effectively oblige a public prosecutor to indict and prosecute a suspected torturer if the evidence available to the prosecution is not sufficient to proceed with the case.”
- 137.
Belgium v. Senegal, above n. 66, paras 112–3.
- 138.
CAT, above n. 7, Article 9.
- 139.
Nowak et al. 2008, p. 289 onwards.
- 140.
Gattini 2007b.
- 141.
Van Alebeek 2001, pp. 29–30 and 32.
- 142.
Gattini 2007b, paras 1 and 8.
- 143.
- 144.
Koutroulis 2014, para 3: In 2000 and 2001, 21 people filed complaints against Habré in Belgium. Some of the complainants had (dual) Belgian nationality.
- 145.
Ibid., paras 3–7.
- 146.
Belgium v. Senegal, above n. 66, para 68.
- 147.
Ibid., paras 121–2; Koutroulis 2014, para 24.
- 148.
NY Times Editorial Board (2015) A Milestone for Justice in Africa. http://www.nytimes.com/2015/07/22/opinion/a-milestone-for-justice-in-africa.html?emc=edit_tnt_20150722&nlid=9510037&tntemail0=y&_r=0. Accessed 2 August 2017; Williams 2013.
- 149.
UN Press Release (2016) Secretary General , With Thoughts on Victims, Applauds Senegal, African Union on Judgment in Case Against Former Chad President Hissene Habré . http://www.un.org/press/en/2016/sgsm17806.doc.htm. Accessed 2 August 2017; AU Press Release (2016) African Union Welcomes the Judgment of an Unprecedented Trail of Hissene Habré. http://www.au.int/en/pressreleases/30728/au-welcomes-judgement-unprecedented-trial-hiss%C3%A8ne-habr%C3%A9. Accessed 2 August 2017.
- 150.
Kamminga 2001, pp. 946–8: For example, for crimes against humanity, war crimes and genocide; Oxman 2007, para 39: “As the human rights content of international law expanded, universal adjudicative jurisdiction also expanded to embrace universally condemned crimes”; UN General Assembly 1973: Non-binding document that lays down principles for co-operation between states in the area of collection of evidence and information, detection, arrest and extradition; The Law Library of Congress 2010: List of countries that have included universal criminal jurisdiction for crimes against humanity in domestic criminal law.
- 151.
Note that an obligation of aut dedere aut judicare is not necessarily synonymous with universal jurisdiction . It could also be based on other grounds of jurisdiction, such as the principle of nationality; International Law Commission 2014a, paras 15 onwards; Special Rapporteur Zdzislaw Galicki 2011, para 95: Draft Article 4: International custom as a source of the obligation aut dedere aut judicare. Draft Article 4(2) notes: “Such an obligation may derive, in particular, from customary norms of international law concerning [serious violations of international humanitarian law, genocide, crimes against humanity and war crimes].” Paragraph 96 of the report states that the list of crimes covered by Draft Article 4(2) is still contested and open to further discussion.
- 152.
UN General Assembly Sixth Committee 2015b; UN General Assembly Sixth Committee 2015a, para 2: The Assembly of the African Union “reiterated its request that warrants of arrest issued on the basis of the abuse of the principle of universal jurisdiction should not be executed in any member State.” Paragraph 3: The Movement of Non-Aligned Countries “cautioned against unwarranted expansion of the range of [crimes that fall within the scope of universal jurisdiction].” Paragraph 8: The African Group was of the opinion that “abuse of universal jurisdiction could undermine efforts to combat impunity; it was therefore vital, when applying the principle, to respect other norms of international law, including the sovereign equality of States, territorial jurisdiction and the immunity of State officials under customary international law.” Similar opinions and concerns were voiced by the Caribbean Community and other states.
- 153.
UN General Assembly Sixth Committee 2015a, para 80: The delegate of the US noted that further analysis of the “practical application” of the principle would be useful, adding that the US “for example, might refrain from exercising universal jurisdiction when the State in which the crime was committed or the State whose citizens were the primary victims of the crime was able and willing to prosecute”; Nollkaemper 2013: The latter statement fits with the approach promoted in this article that a suspect is prosecuted by the state that has the “best normative entitlements to prosecute and that may be best equipped to do so.”
- 154.
Genocide Convention, above n. 2, Article 6; see 4.1.2 Genocide Convention.
- 155.
Genocide Convention, above n. 2, Articles 1, 6 and 7: “Genocide and the other acts enumerated in Article III shall not be considered political crimes for the purpose of extradition”; Genocide (2007), above n. 2, para 443; see for example: Rome Statute of the International Criminal Court , opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute), Articles 58, 59, 86 and 89; Tams et al. 2013, pp. 261 onwards: Extradition can be subject to certain requirements in domestic law, for example based on the risk of death penalty or torture or protecting nationals against foreign jurisdiction.
- 156.
Tams et al. 2013, p. 256, para 58: This also implies a duty to investigate once a state learns or is made aware of the presence of suspects within its jurisdiction.
- 157.
Ibid., p. 256, para 58(3); Gaeta 2009, pp. 46–8.
- 158.
Genocide (2007), above n. 2, para 442; Kamminga 2012, para 14; Schabas 2003, p. 60: Explains that the travaux préparatoires of the Genocide Convention show that the drafters sought to explicitly exclude universal jurisdiction for genocide, while it is now accepted at least as a permissive basis for prosecution; Spijkers 2007: An example of an exercise of permissive universal jurisdiction by a third state over a suspect of acts of genocide in another state, is the prosecution and punishment of Nikola Jorgic; ECtHR, Jorgic v. Germany, Merits, 12 July 2007, no. 74613/01, para 68: After his conviction, Nikola Jorgic complained to the ECtHR that Germany had not had criminal jurisdiction over him. The ECtHR disagreed, and stated that “the national courts’ reasoning that the purpose of the Genocide Convention, as expressed notably in that Article, did not exclude jurisdiction for the punishment of genocide by States whose laws establish extraterritoriality in this respect must be considered as reasonable (and indeed convincing).”
- 159.
- 160.
For example: (i) Developing states cannot ensure all human rights to the people in their territory partly as a result of structures at the international level; (ii) Non-state actors sometimes commit human rights abuses that are hard to control, like transnational corporations or rebel movements; (iii) A state may itself be the perpetrator of human rights violations against people on its territory.
- 161.
- 162.
- 163.
See 1.3.1 Delineation: Note that this section diverges from the main focus in this research on human rights law, for the sake of finding ways that third state obligations to prevent gross human rights violations might develop and can be strengthened. There are other areas beyond the four discussed below in which third state obligations may develop that could strengthen the set of obligations to prevent gross human rights violations, such as the obligation not to avoid causing extraterritorial harm and the obligation to exercise universal jurisdiction for war crimes and crimes against humanity. The four areas that have been chosen are the ones most discussed in literature in relation to the prevention of gross human rights violations and are indicative of the theoretical and methodological challenges third state obligations entail. For further reading, see: Kamminga 2001, pp. 946–8; De Schutter et al. 2012, Principles 13 and 14.
- 164.
ESC rights and obligations were not included in the discussion of obligations to prevent in the territorial and jurisdictional layers because instruments containing these rights do not contain obligations that directly aim, either expressly or impliedly, to prevent torture, arbitrary death or genocide. Nevertheless, the discussion on extraterritorial ESC rights is broader than just the third state obligations to assist and cooperate. For example, states may also have obligations based on extraterritorial jurisdiction not to destroy houses, hospitals, schools or crops; Salomon 2007; Sepúlveda 2006; De Schutter et al. 2012.
- 165.
See for example: International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR), Article 2(1) which obligates states to devote “the maximum of […] available resources” to the realization of economic and social rights through “assistance and cooperation”; Salomon 2007; Howland 2007.
- 166.
UN Charter, above n. 43, Articles 55 and 56; UN General Assembly 1948, Article 28: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized”; ICESCR, above n. 165, Article 2.
- 167.
UN Charter, above n. 43, Article 56.
- 168.
Ibid., Article 55.
- 169.
This may partly illustrate the universalist intention of the drafters, but most importantly it has allowed room for broad teleological interpretation to that effect: Alston and Quinn 1987, pp. 156 and 191: Explain that, based on the travaux préparatoires of the ICESCR, the argument that the obligation of cooperation is legally binding cannot be sustained, but that subsequent developments may necessitate a re-interpretation.
- 170.
ICESCR, above n. 165, Article 2.
- 171.
Committee on Economic, Social and Cultural Rights 1990, paras 13–4: The CESCR explains that the “available resources” refer both to the resources within a state and those available from the international community. “The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations , with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States”; Salomon 2007.
- 172.
Sepúlveda 2006, p. 273.
- 173.
De Schutter et al. 2012; Sepúlveda 2006, pp. 300 onwards; Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, opened for signature 10 December 2008, 999 UNTS 171 (entered into force 5 May 2013), Article 14: Article 14 of the Optional Protocol, which gives the CESCR the right to receive individual (and inter-state, see Article 10) complaints, is focused on the role of the CESCR in the context of international assistance and cooperation . The provision gives the CESCR the right to bring the need for assistance and cooperation to the attention of specialized UN bodies.
- 174.
Committee on Economic, Social and Cultural Rights 1990, para 14; repeated in: Committee on Economic Social and Cultural Rights 2000, para 45; Committee on Economic Social and Cultural Rights 2003, para 38; Committee on Economic Social and Cultural Rights 2006a, para 37; see also: Committee on Economic Social and Cultural Rights 2006b, paras 29–30.
- 175.
Sepúlveda 2006, pp. 277 onwards: refers to the CESCR’s division between developed and developing states and regards the obligation to cooperate from those perspectives.
- 176.
De Schutter et al. 2012.
- 177.
Statute of the International Court of Justice , opened for signature 26 June 1945, TS 993 (entered into force 24 October 1945) (ICJ Statute), Article 38(1)d; De Schutter et al. 2012, the commentary straight away addressed the geographical dispersion and status of the experts involved in the drafting; the Maastricht Principles have already been referred to in General comments: Committee on Economic Social and Cultural Rights 2016a, para 70: “States parties should also provide guidance to employers and enterprises on how to respect the right extraterritorially”; Committee on Economic Social and Cultural Rights 2016b, para 60: “States also have an extraterritorial obligation to ensure that transnational corporations , such as pharmaceutical companies operating globally, do not violate the right to sexual and reproductive health of people in other countries, for example through non-consensual testing of contraceptives or medical experiments”; it will be interesting to see what the influence of the Maastricht Principles will be in the CESCR individual complaints cases. So far, only 4 individual complaints have been dealt with by the CESCR, of which two led to inadmissibility decisions and none refer to the Maastricht Principles.
- 178.
De Schutter et al. 2012, Preamble.
- 179.
Ibid., Principle 9.
- 180.
Parts of these paragraphs have also been used in a blogpost: Van der Have 2013. In this blog, I criticized the fact that the Maastricht Principles categorize Principle 9 sub c as a form of jurisdiction, because it is much wider than the understanding of jurisdiction in CP rights context. For reasons of conceptual clarity, this chapter categorizes obligations of assistance and cooperation as obligations beyond territory and jurisdiction.
- 181.
De Schutter et al. 2012, Principle 9 sub a and b: Note that sub b refers to “situations over which State acts or omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights” including extraterritorially. This is also somewhat wider than jurisdiction as it has been interpreted in CP rights context. In the Principles it is used as a basis of third state obligations to respect and protect. See also principles 13 and 14; see 3.1.2 Jurisdiction as a Threshold and Basis for Extraterritorial Obligations.
- 182.
De Schutter et al. 2012, Principle 9 sub c.
- 183.
- 184.
De Schutter et al. 2012, Commentary to Principle 9c para 9.
- 185.
De Schutter et al. 2012, Principle 30 and Commentary to Principle 30 para 2: The commentary to the Maastricht Principles refers to the potential use of the principle of common but differentiated responsibility, a principle mainly used in the area of environmental law as a way to distribute obligations serving a common goal on a differentiated basis.
- 186.
UN Charter, above n. 43, Article 43(1); Simma et al. 2002, pp. 1351 onwards: Such negotiations should concern only the ‘how’, not the ‘if’, of the provision of forces […].”
- 187.
ICESCR, above n. 165, Article 2(1); De Schutter et al. 2012, Principle 33 and 35: “As part of the broader obligation of international cooperation, States, acting separately and jointly, that are in a position to do so, must provide international assistance to contribute to the fulfilment of economic, social and cultural rights in other States.” Principle 35 elaborates that states that receive a request for assistance must consider it in good faith and respond in a manner consistent with their obligation to support the realization of ESC rights in other states; Shue 1996, 52: The respect, protect and fulfill distinction is often used in the context of ESC rights; Salomon 2007, pp. 75–7 and 191: Notes that the ICESCR defines obligations on the basis of international co-operation, requiring pro-active steps; Vandenhole 2005, p. 3, para 4: “[…] States parties to the ICESCR, are to respect, protect and fulfil economic, social and cultural rights not only domestically but also abroad. Though these extraterritorial obligations may still be in need of further conceptualization, their existence should go undisputed.”
- 188.
Committee on Economic Social and Cultural Rights 1990, para 13.
- 189.
De Schutter et al. 2012, Principle 31.
- 190.
Ibid., Principles 13–14 and 21–22: Some of the obligations proposed by the Maastricht Principles are specifically focused on prevention, such as Principles 13 and 14 which address the duty to avoid causing harm extraterritorially and the importance of impact assessments and prevention efforts in that regard. The Maastricht Principles also address the negative effects of sanctions or other indirect interference with another state’s capacity to ensure human rights within their own territory.
- 191.
ICESCR, above n. 165, Article 23; Committee on Economic Social and Cultural Rights 1990, para 13: Refers to Articles 11, 15, 22 and 23 of the ICESCR as underlining the “essential role of such cooperation in facilitating the full realization of the relevant rights.”
- 192.
- 193.
Committee on Economic Social and Cultural Rights 2006b, paras 29–30.
- 194.
- 195.
Working Group on the Right to Development 2008, para 27: The remarks made by Cuba, Egypt and Pakistan are illustrative of the push and pull between developing states, who emphasize the collective external dimension and western states who emphasize the territorial dimension.
- 196.
Van der Have 2014, p. 195.
- 197.
Ibid., p. 195.
- 198.
Ibid., pp. 198–202.
- 199.
De Schutter et al. 2012, Principle 9.
- 200.
See 1.1.3 International Human Rights Law: “The type of injury that […] express obligations to prevent seem to focus on, are violations of a person’s life, body or dignity”; ICESCR, above n. 165, Article 2: This interest is expressed in, but also shaped, by the entry point offered by Article 2.
- 201.
Office on Genocide Prevention and the Responsibility to Protect 2014, risk factors 1.7–11.
- 202.
De Schutter et al. 2012, Preamble and Principles 28–35; UN General Assembly 1989, Articles 3–6.
- 203.
Ruggie 2007.
- 204.
Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises John Ruggie 2008, para 27.
- 205.
Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises John Ruggie 2008; Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises John Ruggie 2011.
- 206.
Human Rights Council 2011: In the same resolution, the HRC established a Working Group on the issue of human rights and transnational corporations and other business enterprises.
- 207.
Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises John Ruggie 2011, Commentary to Foundational Principle I. A 1: It stresses that is does not create new legally binding obligations for states, but is based on existing human rights obligations; Principles 17–21: Warn that adverse human rights impacts can result in criminal charges or civil claims for compensation against business enterprises and encourages businesses to carry out human rights impact assessments. States could choose to include this as a requirement in their regulation of business enterprises domiciled in their territory.
- 208.
Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises John Ruggie 2011, Commentary to Foundational Principle 2.
- 209.
The Global Initiative for Economic, Social and Cultural Rights 2015.
- 210.
The Global Initiative for Economic, Social and Cultural Rights 2012.
- 211.
Human Rights Committee 2012, para 16.
- 212.
Human Rights Committee 2015, para 6.
- 213.
See also: De Schutter et al. 2012, Principle 25c.
- 214.
Committee on Economic Social and Cultural Rights 2011, para 5: The CESCR has also stated that “states parties should […] take steps to prevent human rights contraventions abroad by corporations which have their main offices under their jurisdiction”; see also: De Schutter et al. 2012, Commentary to Principle 24.
- 215.
Human Rights Committee 2014.
- 216.
Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights 2015.
- 217.
Ibid., para 61.
- 218.
Ibid., paras 64 and 67.
- 219.
Netherlands, Rechtbank Den Haag, Vereniging Milieudefensie v. Royal Dutch Shell PLC, Merits First Instance, 30 January 2013, C/09/330891/HA ZA 09-0579, para 2.2; another example of three separate ongoing cases brought in Canada against a corporation allegedly involved in human rights violations in Guatemala: Canada, Superior Court of Justice, Choc v. Hudbay Minerals Incorporated, Merits Highest Instance, 14th February 2013, 2013 ONSC 1414: Permitting the three lawsuits to proceed to trial in Canada; Seibert-Fohr 2015: The Alien Tort Statute or Alien Torts Claim Act (ATCA) enacted in 1789 allows aliens to file civil claims for damages of international law in United States domestic courts; U.S. Supreme Court, Kiobel et al v. Royal Dutch Petroleum Company, Merits Highest Instance, 17 April 2013, 10 US 1491: In this case, brought against Shell for human rights violations allegedly committed in Nigeria, the Supreme Court decided that a “presumption against extraterritoriality” applies to claims under the ATCA and the “mere corporate presence” of the corporation in the United States was not enough to trigger adjudicative jurisdiction. It thereby rejected universal civil jurisdiction and limited the opportunities for civil litigation in the United States for business-related human rights harm abroad. This does not necessarily preclude claims from being accepted if a company is domiciled in the United States; Ward 2000: Discusses the “increasing trend for parent companies of multinational corporate groups to face litigation in developed country courts over environmental, social and human rights impacts in developing countries.”
- 220.
- 221.
See for example: Gray, above n. 62: Germany prosecuted a German doctor for malpractice that resulted in a death in the UK, even though Germany was arguably not required to do so given the fact that the doctor was not a state official and the crime was committed outside its jurisdiction; Committee Against Torture 2005, paras 4(g) and 5(f); Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 2015, para 55 onwards: Article 14 providing a right to remedy for acts of torture has been interpreted widely by the CAT Committee and Special Rapporteur on Torture as meaning that states must provide victims of torture access to remedy, even if the torture was committed outside their territory and jurisdiction.
- 222.
See 1.1.3 International Human Rights Law: “The type of injury that […] express obligations to prevent seem to focus on, are violations of a person’s life, body or dignity”; Global Initiative for Economic, Social and Cultural Rights 2012: The German Kaffee Gruppe allegedly evicted people using grave forms of violence.
- 223.
Office on Genocide Prevention and the Responsibility to Protect 2014, risk factors 2.3, 2.4 and 2.8.
- 224.
Special Rapporteur Mr. Gaetano Arangio-Ruiz 1995, Objections to Article 19, part 1; Special Rapporteur Mr. Gaetano Arangio-Ruiz 1996, Problems relating to the regime of internationally wrongful acts singled out as crimes in Article 19 of part one of the draft articles; Special Rapporteur Mr. James Crawford 2000, Additional consequences of “gross breaches” of obligations to the international community as a whole: fn 819: “In the draft articles adopted on first reading, it was noted that “alternative phrases such as ‘an international wrongful act of a serious nature’ or ‘an exceptionally serious wrongful act’ could be substituted for the term ‘crime’.” Paragraph 412 onwards proposes the set of Draft Articles more or less as they were included in the final document; Dupuy 1989, p. 170: Outlines arguments against the concept of crimes of states.
- 225.
International Law Commission 2001a, Commentary to Article 40, paras 4 and 5: In its commentary to Article 40 ASR, the ILC confirms that both the prohibition of genocide and the prohibition of torture are considered to be peremptory norms; see also: Committee Against Torture 2008, para 1; Besides the main examples of peremptory norms, which are few, some room is left to consider certain fundamental human rights as such. Note that many very general claims granting all kinds of human rights jus cogens status have made legal scholars somewhat wary of the concept: Frowein 2013, paras 6–8; for the right to life it is unclear whether it qualifies as a peremptory norm. It is certainly a fundamental right from which no derogation is permitted. It is moreover considered to be of fundamental importance as the very first and basic right, without which no other individual rights can exist: Human Rights Committee 1982, paras 1–3; other well-recognized peremptory norms such as war crimes and genocide often involve arbitrary killings. Therefore, arguably at least a core part of the right to life is protected by a peremptory norm. If acts of genocide, torture and arbitrary deaths occur on a gross or systematic basis, Article 41(1) applies to them.
- 226.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Article 53.
- 227.
International Law Commission 2001a, Articles 40(2) jo 41.
- 228.
International Law Commission 2011, Article 40.
- 229.
International Law Commission 2001a, Commentary to Article 40, paras 7 and 8.
- 230.
Ibid., Commentary to Article 40, para 8.
- 231.
Ibid., Article 41(2).
- 232.
ICJ, Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 21 June 1971, ICJ Rep 16, paras 125–6: The obligation of non-recognition is qualified by the consideration that it should not lead to depriving individuals of any advantages derived from international cooperation, such as refusing to accept the registration of births, deaths and marriages; ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, 27 June 1986, ICJ Rep 14, para 188; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Rep 136 (Construction of a Wall), para 160; International Law Commission 2001a, Commentary to Article 41, paras 6–10: Also refers to several SC resolutions in support of the obligation of non-recognition as a customary rule of international law.
- 233.
Talmon 2006.
- 234.
U.K. House of Lords, A (FC) and Others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), Merits Conjoined Appeals, 8 December 2005, UKHL 71: Based on Article 41 of the Articles on State Responsibility, the House of Lords concluded that “there is reason to regard it as a duty of states […] to reject the fruits of torture inflicted in breach of international law.”
- 235.
International Law Commission 2001a, Commentary to Article 41, para 12; Construction of a Wall, above n. 232, para 160.
- 236.
International Law Commission 2001a, Commentary to Article 41, para 11.
- 237.
Ibid., Commentary to Article 41, para 12: Refers to the regime of apartheid.
- 238.
International Law Commission 2001a, Article 41(1); Special Rapporteur Mr. James Crawford 2001, para 43 onwards: An earlier draft of the Article raised concern among states that it supported the notion of state crimes and punitive responses by the international community. In its current form they reflect a compromise, leaving room for the further development of the law. Paragraph 44: “Other Governments (e.g. Austria, 67 the Netherlands, 68 Slovakia) also support the compromise embodied in chapter III, on the basis that its substantive provisions are reasonable and do not impose onerous burdens on third States.” Paragraph 52: “In the Special Rapporteur’s view, chapter III is indeed a framework for the progressive development […]it recognizes that there can be egregious breaches of obligations owed to the community as a whole, breaches which warrant some response by the community and by its members.”
- 239.
International Law Commission 2001a, Commentary to Article 41, para 3; Wyler and Castellanos-Jankiewicz 2014, p. 305: Refers to Article 49 of the UN Charter and the ICJ’s Wall opinion as support for the existence of an obligation to cooperate, but conclude that the legal status of Article 41(1) is “rather indeterminate.”
- 240.
International Law Commission 2001a, Commentary to Article 41, para 3.
- 241.
Special Rapporteur Mr. James Crawford 2000, para 411; International Law Commission 2001b, Serious breaches of essential obligations to the international community: Most states approved the move away from the concept of state crimes. P 70 Spain requests that: “The Commission should enlarge upon and clarify to the extent possible the obligations of all States provided for […]. The reference in para 2(c) to cooperation among States “to bring the breach to an end” is also problematic, as it is unclear whether a separate obligation is involved or whether it is related to the taking of countermeasures under Article 54. P 72 China adds: “A question arises regarding the relationship of Article 42, para 2, with Security Council resolutions. For example, for an act that threatens international peace and security, would the obligations set out in Article 42, para 2, arise automatically, or only after a decision has been made by the Security Council ?” The Netherlands adds: “The Netherlands assumes that the emphasis in subparagraph (c) (the obligation for all States “[t]o cooperate as far as possible to bring the breach to and end” is on cooperation, i.e. maximizing the collective response, for example, through the collective security system of the United Nations, and preventing States from going it alone.
- 242.
Genocide (2007), above n. 2, para 431; Glanville 2012, p. 27.
- 243.
International Law Commission 2001a, Commentary to Article 41, para 11.
- 244.
Ibid., Commentary to Article 41, para 3.
- 245.
Nollkaemper 2003, pp. 626–7: “It need not be detailed here that the implementation of aggravated responsibility is not satisfactorily regulated by international law and that much work needs to be done to bring them under proper legal control.”
- 246.
International Law Commission 2001a, Commentary to Article 41, para 2; Klein 2002: Focuses on the important role that the UN could and arguably should play in initiating and coordinating forms of cooperation, the inadequacies in the current UN system, as well as proposals for new institutional mechanisms.
- 247.
International Law Commission 2001a, Commentary to Article 41, para 3.
- 248.
Construction of a Wall, above n. 232, para 160.
- 249.
International Law Commission 2001a, Article 41(1).
- 250.
UN Charter, above n. 43, Articles 2(4) and 42.
- 251.
Glanville 2012, p. 20; UN Charter, above n. 43, Article 43.
- 252.
- 253.
International Law Commission 2001a, Article 41(2) and Commentary to Article 41, para 3.
- 254.
International Law Commission 2014b, chp. 14(a), para 1: “At its 3227th meeting, on 18 July 2014, the Commission decided to include the topic “Crimes against humanity” in its programme of work and to appoint Mr. Sean D. Murphy as Special Rapporteur”; Special Rapporteur Sean D. Murphy 2015, chp. 5(a) Obligation to prevent crimes against humanity: Draft Article 1 contains a general obligation to prevent, similar to the Genocide Convention, but also specifies that states will take “effective legislative, administrative, judicial or other measures to prevent”, similar to the CAT; Special Rapporteur Sean D. Murphy 2016, chp. 4 and 5: Draft Article 9 outlines the obligation of aut dedere aut judicare based on the presence of the alleged offender in any territory under the state party’s jurisdiction. By combining these elements of prevention and universal jurisdiction from the Genocide convention and CAT, the proposed convention could mitigate the lack of an obligation to establish universal jurisdiction over acts of of genocide and help push beyond legalistic discussions on the nature of a crime before taking measures to prevent.
- 255.
Although state practice is scant, support for an obligation to cooperate based on customary law can be found in, for example: UN Charter, above n. 43, Articles 55 and 56; UN General Assembly 1970, Preamble and Principle 4: The duty of States to co-operate with one another in accordance with the Charter; Gattini 2002, p. 1186: “[O]ne can infer that, if the obligation to cooperate has been recognized as a general rule for the protection of peace and the promotion of human rights, the same must be true when these supreme values are seriously violated. Taking account of the strong political connotation of the Declaration, it is apparent that the ILC codified, rather than developed, the obligation the obligation to cooperate in bringing the violation to an end.”
- 256.
Jorgensen 2012, pp. 411–2.
- 257.
Winkelmann 2010, para 2.
- 258.
- 259.
- 260.
UN General Assembly 2005, paras 138–9, emphasis added.
- 261.
- 262.
Rome Statute, above n. 155, Articles 6, 7 and 8: These categories show great similarity to the crimes contained in the Rome Statute, the founding document of the ICC aimed at holding individuals responsible for international crimes. Despite the fact that the Rome Statute and RtoP developed in the around the same time and are both aimed at offering guidance for grave humanitarian crises, the overlap in the types of crimes between the Rome Statute and RtoP is somewhat odd. Whereas the Rome Statute is aimed at grounding individual criminal responsibility ex-post facto, the RtoP is aimed at preventing and reacting to a specified set of crimes by states; Bellamy and McLoughlin 2009, pp. 10–4: The content and delineation of the four RtoP crimes has therefore principally been explained with reference to the Rome Statute, but also International Humanitarian Law, the Genocide Convention and a great deal of other sources; Rosenberg 2009, p. 461: Of the four RtoP crimes, ethnic cleansing is the odd one out, because it does not have an independent legal foundation, meaning that there is no treaty or other source of international law prohibiting this specific act, making its delineation and content more elusive than the other three crimes; Office on Genocide Prevention and the Responsibility to Protect 2014, p. 1: Depending on the circumstances, ethnic cleansing can be classified in legal terms as a war crime or a crime against humanity.
- 263.
- 264.
Secretary-General Ban Ki-Moon 2009, summary, 10, 15 and 22.
- 265.
Bellamy and Reike 2010, p. 274.
- 266.
The category of crimes against humanity first arose in the field of international criminal law and its scope in relation to obligations of states is still debated. Ethnic cleansing has no distinct pre-existing legal content at all. Therefore, state obligations to prevent genocide and war crimes are better defined in the body of international law as it stands today. The claim that states may not commit the acts comprising the RtoP crimes towards its own population has a strong basis in international law: Genocide Convention, above n. 2; ICCPR, above n. 5, Articles 6 and 7; ECHR, above n. 6. Articles 2 and 3; ACHPR, above n. 198, Articles 4 and 5; ACHR, above n. 7, Articles 4 and 5; CAT, above n. 7; IACPPT, above n. 7; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); Bellamy and Reike 2010, pp. 275–80.
- 267.
Glanville 2012.
- 268.
All of this is further complicated by the fact that the international community, being the bearer of responsibilities under the second and third pillar, does not only comprise of states, but also IOs and to a certain extent non-state actors; Secretary-General Ban Ki-Moon 2012, paras 45–7; Secretary-General Ban Ki-Moon 2011; the degree to which these other actors have obligations under international law is still contested: See 1.3.1 Delineation: This study focuses only on state obligations.
- 269.
ICJ Statute, above n. 177, Article 38(b); Shaw 2003, p. 70; Salomon 2007, p. 89: There are several factors which can predict if and how fast a resolution may be accepted into custom, such as the use of mandatory language, the voting pattern with which it was adopted and the follow-up mechanisms erected to further its implementation.
- 270.
Strauss 2009, pp. 293–12; Hehir 2013: The record of application of the RtoP in practice is patchy. A widely-acclaimed success is the role the RtoP played in Kenya in 2007, where pressure by the international community and a mediation process under the leadership of former Secretary-General Kofi Annan helped halt post-election violence. However, the lack of third pillar action in regard to Syria is seen as a failure. Due to the complexity of the conflict in Syria and differing political interests, the SC has remained in a political deadlock; Bellamy 2011; Weiss 2011: Recently, supporters of the RtoP have eagerly acclaimed the intervention in Libya as a new sign of the norm’s progressive acceptance. However, NATOs intervention has also been much criticized for going beyond the mandate of protection to ensure regime change and in the aftermath of the intervention Libya has remained very internally unstable; Orford 2011, p. 90 onwards: Sees the patchy record of the RtoP’s application as proof of the fact that the RtoP is merely a new concept justifying politically motivated action, which would be undertaken regardless of its existence.
- 271.
Strauss 2009, pp. 317–20 and 323.
- 272.
Secretary-General Ban Ki-Moon 2012, para 40.
- 273.
Secretary-General Ban Ki-Moon 2014, paras 20, 34: The report also refers to regional actors as being particularly well-placed to engage in forms of encouragement.
- 274.
Bellamy 2010, p. 158 “First, as agreed by member states, RtoP is universal and enduring—it applies to all states, all the time. […] The question should not be whether it applies, but how it is best exercised.”
- 275.
International Commission on Intervention and State Sovereignty 2001, pp. 22–7: Although the understanding of the RtoP has developed and narrowed since the introduction of the ICISS report, the report contains an interesting set of proposals for the types of measures states should take. The report differentiates between root cause and direct prevention and measures addressing political, economic, legal and military dimensions.
- 276.
Secretary-General Ban Ki-Moon 2013, paras 7–15: The 2013 SG report on the RtoP that focuses on state responsibility and prevention, clusters different policy options for atrocity prevention, such as economic development, strengthening accountability and the rule of law. The SG report also states that promoting and protecting human rights is key to a state’s resilience to conflict. The direct preventive measures in the SG report are much less far-reaching and less focused on international support and intervention than the direct preventive measures suggested in the ICISS report; Secretary-General Ban Ki-Moon 2014, Summary: The 2014 SG report on the second pillar outlines the main forms of assistance as: encouragement, capacity building and protection assistance.
- 277.
Secretary-General Ban Ki-Moon 2012, paras 25 onwards.
- 278.
Accountability Coherence Transparency Group 2015.
- 279.
For an updated list of signatories, see: http://www.globalr2p.org/resources/893. Accessed 2 August 2017.
- 280.
- 281.
Office on Genocide Prevention and the Responsibility to Protect 2014.
- 282.
Strauss 2009, pp. 317–20 and 323: Strauss reasons that the SC could build on its practice to consider internal conflicts as a threat to international peace and security. Nevertheless, he argues there is still a long way to go: “Ultimately, this practice, based on a common ethic vision supporting the agreement that such action was required to meet existing legal obligations, might lead to a new norm of international customary law.”
- 283.
Rosenberg 2009, pp. 459 and 463; Bellamy 2010, pp. 158, 161–6: The discussions surrounding the RtoP are all too often focused on a very small aspect of the RtoP: military intervention under the third pillar. Bellamy states that it is unlikely that the RtoP can offer a strong compliance pull to catalyze third pillar action that states would not otherwise be willing to undertake, largely due to the norm’s indeterminacy. It is in its function as “a policy agenda in need of implementation” that Bellamy truly sees an added value.
- 284.
Secretary-General Ban Ki-Moon 2012, para 59.
- 285.
Rosenberg 2009, pp. 459 and 463: The RtoP offers a “directive to act in the face of mass atrocities ” with a strong focus on prevention and assistance and only as an ultimate measure to take timely and decisive action to respond.
- 286.
The term “third states” is used to describe states that do not exercise territorial or extraterritorial jurisdiction over the people whose human rights are affected.
- 287.
- 288.
See 4.1.1 CAT and IACPPT.
- 289.
See 4.2.1.1 and 4.2.4.1 Torture: They require third states to include the relevant bases to establish criminal jurisdiction into their domestic legal system and take steps to investigate and prosecute when acts of torture by nationals or people within their jurisdiction are suspected or alleged to have taken place abroad.
- 290.
- 291.
- 292.
See 4.1.2 Genocide Convention: For example, the Genocide convention was adopted before the CAT and IACPPT, at a time in which universal jurisdiction was less accepted. This has resulted in a situation where states are often obligated to exercise universal jurisdiction for acts of torture, but not for acts of genocide.
- 293.
See 4.3 Shift Towards Third State Obligations.
- 294.
See 4.3.1 Economic and Social Rights.
- 295.
See 4.3.2 Corporations Acting Abroad.
- 296.
See 1.1.3 International Human Rights Law: “The type of injury that […] express obligations to prevent seem to focus on, are violations of a person’s life, body or dignity.”
- 297.
- 298.
See 4.3.3 and 4.4.4 last paras: Furthermore, they underline the claim that third states should act in the face of gross human rights violations and inspire and support the development of third state obligations in that regard.
- 299.
- 300.
- 301.
- 302.
See 1.3.4 Clarifying the Content of Obligations: It is assumed in this research that clarifying the content of obligations will at the very least add clarity to the debate about them and can at best induce efforts of implementation and enforcement.
- 303.
- 304.
See 4.2.4.1 Torture: When suspects of acts of torture reside within a state’s jurisdiction, it has the obligation to extradite or prosecute the suspect in line with the practical control it has over them; see 4.2.2.1 Genocide: When a state has a capacity to influence effectively the (potential) perpetrators of genocide, it is expected to employ all means reasonably available to prevent genocide, the scope of which is partly determined by the same factors that also determine whether there is a basis for the obligation at all; see 4.3.1 Economic, Social and Cultural Rights: When a state is in a position to assist, it must assist and cooperate with other states for the realization of ESC rights in line with its capacity and resources.
References
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Reports, Declarations and Resolutions
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Committee on Economic Social and Cultural Rights (1990) General Comment 3: The Nature of States Parties Obligations (Art 2 par 1 of the Covenant). UN Doc. 14/12/90.
Committee on Economic Social and Cultural Rights (2000) General Comment 14: The Right to the Highest Attainable Standard of Health (Art 12 of the Covenant). UN Doc. E/C12/2000/4.
Committee on Economic Social and Cultural Rights (2003) General Comment 15: The Right to Water (Arts 11 and 12 of the Covenant). UN Doc. E/C12/2002/11.
Committee on Economic Social and Cultural Rights (2006) General Comment 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting From any Scientific, Literary or Artistic Production of Which He or She is the Author (Article 15, paragraph 1 (c), of the Covenant). UN Doc. E/C12/GC/1712. (a).
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Van der Have, N. (2018). Extraterritorial Obligations to Prevent Beyond Jurisdiction. In: The Prevention of Gross Human Rights Violations Under International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-231-6_4
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