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Panel Discussion: Implementing the Duty to Prevent Genocide under International Law

2 december 2022

On the occasion of the 21st session of The Assembly of States Parties to the Rome Statute of the International Criminal Court Pels Rijcken, together with the Foley Hoag United Nations Practice Group and the USC Gould International Human Rights Clinic, will host the panel discussion 'Implementing the Duty to Prevent Genocide under International Law'; the duty of states to prevent genocide.

In April 2022, the war in Ukraine included genocidal rhetoric, liquidation of leadership, and camps for re-education of Ukrainians. Damage to over 100 cultural sites had been verified by UNESCO; destruction of books in Ukrainian or about Ukrainian history was reported, and acts against Ukrainian civilians in Bucha and elsewhere included: thousands tortured, assassinated and buried in mass graves; reports of deportations; rape and other forms of sexual violence; and alleged transfer and adoption of over 120,000 Ukrainian children in Russia. Over half of Ukraine’s prewar population of 44 million had been uprooted, with over 5 million forced out of Ukraine as refugees and 8.3 million projected by the end of the year.  At the same time, evidence of crimes had been labeled as “fake” and the Russian Army’s 64th Motor Rifle Brigade closely linked to atrocities in Bucha was publicly honored.

In response, world leaders varied in how they characterized these actions. For example, while the President of the United States declared that the situation in Ukraine constituted a genocide, the President of France considered that such a determination might be premature. Meanwhile, the former Prime Minister for the United Kingdom referred to the situation as “not far short of genocide.” To date, Russia’s rhetoric and actions have only intensified, and States continue to vary in their characterization of the atrocity situation. This effectively demonstrated a broader tension with respect to genocide as an international crime: it is often difficult for States to understand or agree about when their legal duties to prevent genocide are triggered, or what those obligations entail under the 1948 Genocide Convention and the prohibition against genocide as a jus cogens norm under customary international law. Underdevelopment in this area of international law hinders effective prevention and punishment of genocide, and it creates opportunity for politicization by States, at issue in the pending Ukraine vs. Russia matter before the International Court of Justice (ICJ). As evidenced by the 22 declarations of intervention in that case, States seek clearer guidance with respect to the triggers for prevention obligations and lawful steps for operationalizing them.

Looking to Ukraine, a situation currently under investigation by the Prosecutor (OTP) of the International Criminal Court (ICC) for potential genocide, and other situations that may also be along the spectrum for risk of genocide such as Cameroon, Armenia and Ethiopia, this panel will explore the following key questions drawing from action taken by States and international actors (or not): what conditions trigger the duty to prevent genocide? Once triggered, what is the scope of that duty, and what tools, both national and international, can help to identify these obligations as well as lawful steps for addressing a genocidal situation? This panel will also assess how the OTP’s international criminal investigations and concurrent litigation before the ICJ intersect with these questions. The panel will further explore the extent to which lack of labeling or action with respect to genocide is due, in part, to lack of clarity regarding the duty to prevent genocide under international law.

Pels Rijcken partner Prof. Martijn Scheltema will be covering the introductory remarks alongside Dr. Alain Germeaux, Head of Legal Department, Ministry of Foreign and European Affairs, Grand Duchy of Luxembourg, ASP State Sponsor.

More details and registration via the Foley Hoag LLP website.

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