Codifying the Obligations of States Relating to the Prevention of Atrocities.

• Author: Murphy, Sean D.
• Position: Atrocity Prevention: The Role of International Law and Justice

Keynote Speech for Conference on "Atrocity Prevention: The Role of International Law and Justice" Case Western Reserve University School of Law September 20, 2019

Table of Contents Table of Contents I. Introduction II. Codifying the Prevention of Atrocities or other Wrongs: Treaties from 1948 to 2019 III. Six Obligations of States Relating to Prevention of Atrocities A. Obligation #1: States Shall Not Themselves Commit Acts of Atrocities B. Obligation #2: States Undertake Generally to Prevent Atrocities C. Obligation #3: States Shall Take Legislative or Other Measures to Prevent Atrocities D. Obligation #4: States Shall Cooperate with other States, International Organizations and, as Appropriate, Non-Governmental Organizations for the Prevention of Atrocities E. Obligation #5: States Shall Not Send a Person to a Place Where the Person Would be in Danger of Being Subjected to an Atrocity F. Obligation #6: States Shall Punish Atrocities as a Means of Prevention V. All Measures of Prevention Must Be Consistent with International Law VI. Do Such Treaty Provisions Actually Work to Prevent Atrocities? Appendix I. Introduction

Many thanks, Dean Scharf, for that warm introduction and for the invitation to serve as the keynote speaker at this very important conference on atrocity prevention. You have assembled here an extraordinary group of speakers and participants, on a topic that is very timely, when we consider what is happening in places such as Myanmar, North Korea, Syria, Venezuela, or--as our third panel today will discuss--Yemen.

Indeed, I am very pleased, in my capacity as President of the American Society of International Law, for the Society to be cosponsoring this event, given that one of the Society's two "signature topics" concerns atrocity prevention. (2) Todd Buchwald, who is here, serves as the chair of the steering committee for that topic, and you, Dean Scharf, are a member of that committee, with both of you bringing to bear deep backgrounds and expertise in this area.

I am further pleased that this conference provides an opportunity to discuss the International Law Commission's 2019 Articles on Prevention and Punishment of Crimes against Humanity (2019 CAH Articles), which is the subject of our fourth panel. Those Articles were just adopted by the Commission last month in Geneva, and have now been sent to the U.N. General Assembly for its consideration this fall. (3) So, it is quite timely to discuss what they say about atrocity prevention and whether they should serve as the basis for a Convention on the Prevention and Punishment of Crimes against Humanity.

I have titled this keynote address "Codifying the Obligations of States Relating to the Prevention of Atrocities." In addressing this topic, I am not going to focus on the functioning of international institutions, such as the U.N. Security Council (to be discussed by panel 1) or the International Criminal Court (to be discussed by panel 5). Rather, my focus is on international obligations embedded in major multilateral treaties that address the issue of prevention, either expressly or implicitly. In doing so, I will attempt to connect the past to the present, so as to highlight six obligations of States relating to prevention that the Commission deemed essential for inclusion in its 2019 CAH Articles. Before doing that, however, allow me to say a few words about the current framework of major multilateral treaties that contain provisions on prevention of crimes or human rights violations, beginning with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (1948 Genocide Convention). (4)

ii. Codifying the Prevention of Atrocities or other Wrongs: Treaties from 1948 to 2019

An early significant example of an obligation of prevention may be found in the 1948

Genocide Convention, which contains three provisions that speak to issues of preventing that particular atrocity. (5)

* Article I provides: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." (6)

* Article V provides: "The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III." (7)

*Article VIII provides: "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III." (8)

Thus, the 1948 Genocide Convention contains important elements relating to prevention: a general obligation to prevent genocide; an obligation to enact national measures to give effect to the provisions of the Convention; (9) and a provision for States parties to call upon the competent organs of the United Nations to act for the prevention of genocide. (10)

Such types of preventive obligations thereafter featured in most multilateral treaties addressing crimes, certainly at least since the early 1970's. (11) Examples include: the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; (12) the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents; (13) the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid; (14) the 1979 International Convention against the Taking of Hostages; (15) the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984 Torture Convention); (16) the 1985 Inter-American Convention to Prevent and Punish Torture; (17) the 1994 Inter-American Convention on the Forced Disappearance of Persons; (18) the 1994 Convention on the Safety of United Nations and Associated Personnel; (19) the 1997 International Convention on the Suppression of Terrorist Bombings; (20) the 2000 United Nations Convention against Transnational Organized Crime; (21) the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; (22) the 2000 Protocol against the Smuggling of Migrants by Land, Sea, and Air, supplementing the United Nations Convention against Transnational Organized Crime; (23) the 2001 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime; (24) the 2002 Optional Protocol to the 1984 Torture Convention; (25) the 2003 United Nations Convention against Corruption; (26) and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (2006 Enforced Disappearance Convention). (27)

Some multilateral human rights treaties, even though they are not focused on the prevention of crimes as such, contain obligations to prevent or suppress human rights violations. Examples include: the 1966 International Convention on the Elimination of All Forms of Racial Discrimination; (28) the 1979 Convention on the Elimination of All Forms of Discrimination against Women; (29) and the 2011 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. (30) Some multilateral human rights treaties do not refer expressly to "prevention", "suppression," or "elimination" of the act but, rather, focus on an obligation to take appropriate legislative, administrative, and other measures to "give effect" to or to "implement" the treaty, (31) which may be seen as encompassing necessary or appropriate measures to prevent the act. Examples include the 1966 International Covenant on Civil and Political Rights (32) and the 1989 Convention on the Rights of the Child. (33)

As the above demonstrates, there exists a framework of treaties, some with extremely high levels of adherence by States, containing provisions on the prevention of crimes or human rights violations, that may be drawn upon when considering the obligations of States to prevent atrocities. The U.N. International Law Commission's 2019 CAH Articles drew upon these prior treaties to craft its own provisions on prevention of crimes against humanity. (34) In doing so, six essential obligations emerged, which I will discuss in turn.

3. Six Obligations of States Relating to Prevention of Atrocities

   Exactly what types of obligations of States fall within the realm of "prevention" might be debated; it could generally be thought that some obligations are directly connected to prevention (obligations of prevention) while others are of a different nature, though bearing upon the issue of prevention (obligations relating to prevention). The distinction may not be of any great significance, and for present purposes I will simply characterize the following six obligations of States as all relating, directly or indirectly, to prevention atrocities.

   1. Obligation #1: States Shall Not Themselves Commit Acts of Atrocities

      The first obligation of States relating to prevention that the Commission identified, when reviewing prior treaties, was that every State shall not itself commit acts that constitute crimes against humanity. (35) This may seem an especially obvious way of preventing such atrocities, which may explain why it is typically viewed as implicitly present in existing treaties, while not explicitly stated.

      Such an obligation "not to engage in acts" was viewed by the Commission as containing two components. (36) The first component is that States have an obligation not "to commit such acts through their own organs, or persons over whom they have such firm...