Together with Pels Riicken and the International Human Rights Clinic at the University of Southern California Gould School of Law, please join the Foley Hoag United Nations Practice Group for the second lecture in our series on the occasion of the Twenty-First Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court.

In April 2022, the war in Ukraine included frequent use of genocidal rhetoric, liquidation of leadership, and camps for re-education of Ukrainians. Damage to over 100 cultural sites was verified by UNESCO; destruction of books in Ukrainian or about Ukrainian history was reported, and acts against Ukrainian civilians in Bucha and elsewhere included: the torture of thousands, assassinations and burials in mass graves; 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 their characterization of these horrific events. 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.” The inconsistent response revealed an underlying tension with respect to the normative content and concept of genocide as an international crime. It is often difficult for States to understand or agree as to 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. Uncertainty 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 case before the International Court of Justice (ICJ) brought by Ukraine against Russia. As evidenced by the dozens of third-party interventions 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 in 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.

Panel Questions

• What are States’ obligations under the duty to prevent genocide as found in the 1948 Genocide Convention and customary international law? What is the scope of the duty? When is it triggered?
• How can States better identify and prevent genocide when the requisite mens rea of specific intent to destroy a protected national, ethnical, racial or religious group is difficult to establish?
• What tools or frameworks, national or international, facilitate States and international actors in recognizing, preventing and stopping genocide in accordance with international law?

Speakers:

Introductory Remarks:

• Prof. Martijn Scheltema, Partner, Pels Rijcken & Droogleever Fortuijn N.V.

• Dr. Alain Germeaux, Head of Legal Department, Ministry of Foreign and European Affairs, Grand Duchy of Luxembourg, ASP State Sponsor

Special Remarks:

• Alice Wairimu Nderitu, United Nations Special Advisor on the Prevention of Genocide

Panel Moderator:

• Christina G. Hioureas, Partner, Chair, United Nations Practice Group, Foley Hoag LLP

Panelists:

• Professor Todd Buchwald, former Ambassador and Special Coordinator for Global Criminal Justice, U.S. Department of State 
• Federica D’Alessandra, Deputy Director, University of Oxford Blavatnik School of Government’s Institute for Ethics, Law and Armed Conflict (ELAC) and Founding Executive Director of the Oxford Programme on International Peace and Security
• Professor Hannah R. Garry, Founding Director, International Human Rights Clinic, University of Southern California Gould School of Law
• Judge Mykola Gnatovskyy, European Court of Human Rights