On the Controversial Illegality of the Unilateral Use of Force for the Prevention of Genocide: The 'Doubtfulness' Clause Adopted by the ICJ in the Case Filed by Ukraine Against Russia/Soykirimin Onlenmesinde Tek Tarafli Kuvvet Kullaniminin Tartismali Aykiriligi Uzerine: UAD'nin Ukrayna Tarafindan Rusya Aleyhine Acilan Davada Kabul Ettigi 'Belirsizlik' Tespiti.

• Author: Bayraktar, Fethullah

Introduction

On 27 February 2022, Ukraine instituted proceedings against the Russian Federation and directed to the International Court of Justice (ICJ) the question whether Russia has the right under the Convention on the Prevention and Punishment of the Crime of Genocide (UNGC) to engage in military action initiated against Ukraine on 24 February 2022 and to hold Russia accountable for manipulating the notion of genocide to justify aggression. (1) Russia argued in its response that the dispute has nothing to do with the UNGC, and maintains that the dispute relates to the use of force under customary international law. Regardless, the question of whether the unilateral use of force to prevent genocide is legal under the international law has come to the fore once again. Moreover, when the ICJ found in its order dated 16 March 2022, "it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party's unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide," (2) the legality of the unilateral use of force for the prevention of genocide deserves discussion. Until now, such an exception has not been considered due to the prohibition on the unilateral use of force, except for some opinions in the doctrine, (3) but the ICJ has mentioned the 'doubtfulness' of such a possibility. Since to say 'doubtful' about something is not to dismiss entirely its possibility, (4) it is possible to say that the ICJ yellow lighted the legality of the unilateral use of force for the prevention of genocide.

The prevention of genocide is an obligation for states parties to the UNGC. Also, the prevention of genocide is recognized as an erga omnes (5) obligation in international law. Furthermore, according to the United Nations (UN), the prevention of genocide is a duty of states within the scope of the "responsibility to protect (6) For these reasons, the issue of the unilateral use of force to prevent genocide should be examined in these respects as well. Finally, it is necessary to evaluate the legality of the unilateral use of force for the prevention of genocide in terms of international law in general.

On the Legality of the Unilateral Use of Force for the Prevention of Genocide Under the UNGC

The UNGC was adopted on 9 December 1948 and entered into force on 12 January 1951. Article I of this Convention says: "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." According to this article, all contracting states have an obligation not to commit genocide, as well as an obligation to prevent and to punish genocide. (7)

The obligation to not commit genocide is called as a norm of jus cogens by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Kupreskic case: "prohibiting... genocide (is) a peremptory norm of international law or jus cogens, of a non-derogable and overriding character." (8) This status is also confirmed implicitly in several cases of the ICJ, (9) In its advisory opinion concerning Reservations to the Genocide Convention, the court emphasized the binding character of the prohibition of genocide, even on States which did not subscribe to the convention: "the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation." (10) In addition, almost all legal authors confirm the jus cogens (11) character of the prohibition of genocide. (12)

The two other obligations "to prevent and to punish" have different meanings. While the obligation to prevent aimed at precluding genocide from being committed, the other requires the imposition of a penalty when genocide has been committed. (13) Thus, the duty to prevent genocide is logically directed towards present and future genocide acts, while the obligation to punish is directed towards acts already committed.

Article IV of the UNGC gives the obligation to punish the criminals to the states: "Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." Even though the UNGC does not contain an aut dedere aut judicare (14) provision like many other conventions on international crimes, (15) the universal jurisdiction over the crime of genocide is indisputable. (16) The ICJ, in its 1951 advisory opinion, has consistently asserted the view that genocide is a crime under customary international law, (17) and that every state is obliged to outlaw and punish genocide, even without a conventional basis. (18) Genocide has been viewed as one of the most heinous crimes in human history and described as the "crime of crimes" by the International Criminal Tribunal for the Rwanda (ICTR). (19) Therefore, the gravity of the crime compelled that no perpetrators of genocide should be allowed to escape from punishment. (20) State practice also supports this. In 2001, four Rwandans were prosecuted in Belgium for their crimes committed during the 1994 Rwandan genocide. (21)

The object and purpose of the UNGC as stated in Article I is not only to not commit genocide or to punish criminals, but also to stop ongoing genocide acts and prevent future ones. (22) In 2007, the ICJ confirmed that obligation and stated that this constitutes a 'due diligence' obligation. (23) The court stated more specifically that there exists:

"a State's obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed." (24) As it is clarified by the ICJ in its order dated 16 March 2022:

"Article I does not specify the kinds of measures that a Contracting Party may take to fulfil this obligation. However, the Contracting Parties must implement this obligation in good faith, taking into account other parts of the Convention, in particular Articles VIII and IX, as well as its Preamble." (25) Article VIII of the UNGC orders that: "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." Also the ICJ notes that: "the acts undertaken by the Contracting Parties 'to prevent and to punish' genocide must be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the United Nations Charter." (26) In the preamble of the convention, it is emphasized that: "in order to liberate mankind from such an odious scourge, international co-operation is required." When these findings are evaluated together, it is 'undoubtful' to say that the UNGC provides for joint measures to prevent genocide within the framework of the UN Charter.

The purpose of the UN is explained by Article 1/1 of the UN Charter as "to maintain international peace and security, and to that end: to take effective collective measures" and as it is determined by Article 24 of the Charter that all Contracting Parties conferred on the Security Council the "primary responsibility" and agreed that: "the Security Council acts on their behalf", in order to "ensure prompt and effective action by the United Nations." The UNGC gives also the primary responsibility to prevent genocide to the Security Council of the UN. In addition, it is forbidden for states to use force unilaterally according to Article 2/4 of the Charter: "all Members shall refrain in their international relations from the threat or use of force." When the UN Charter provisions, to which the UNGC refers, are evaluated as a whole, the use of force for preventing acts constituting genocide could be determined by the decision of the Security Council; therefore, the unilateral use of force for prevention of genocide should not be possible according to the UNGC. So, all states are obliged to take all kinds of peaceful measures to prevent genocide, but this obligation cannot include the unilateral use of force.

Beside the UNGC, the legal basis and means of this obligation to prevent unilaterally acts constituting genocide should be discussed also from the erga omnes nature of this obligation. (27)

On the Legality of the Unilateral Use of Force for the Prevention of Genocide as an Erga Omnes Obligation

The concept of erga omnes appears in international law for the first time in the Barcelona Traction Case: "In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes." (28) The concept of erga omnes obligations refers to specifically determined obligations that states have as a whole. (29) According to Institut de Droit International, erga omnes obligations are defined as: "an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action." (30) So, to fulfill erga omnes, (31) every member of the international community has a legal interest in the protection of these norms and can enforce them even if they are not directly affected by the breach. (32)

The ICJ never called the prevention of genocide as jus cogens, (33) but the obligation to prevent the crime of genocide was accepted by the ICJ, among the obligations erga omnes, (34) in the Barcelona Traction Case and was repeated by the ICJ in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide as: "the rights and obligations enshrined by the [Genocide] Convention are rights and obligations...