JOURNAL ARTICLE
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Prevention of Atrocity Crimes: Legal Obligations of States and Due Diligence
German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 451–479
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Yvonne Breitwieser-Faria, Mag. iur. (University of Vienna); LL.M. (University of Vienna); PhD Candidate, TC Beirne School of Law and the Asia Pacific Centre for the Responsibility to Protect, The University of Queensland.
Abstract
The conceptualisation of States’ obligations for atrocity prevention, legal and otherwise, has gained increasing momentum as atrocity crimes across the world continue to make seemingly endless headlines. While some States acknowledge that they incur a duty to prevent atrocity crimes; the source, scope, and nature of any legal atrocity prevention obligations remain largely unexplored and controversial. Any extraterritorial dimension to this end is subject to much debate. The International Court of Justice identified such an obligation regarding genocide to be one of due diligence, but its scope remains ambiguous and somewhat unspecific. This paper determines applicable due diligence obligations vis-à-vis atrocity crimes. It argues that States incur not-territorially-limited due diligence obligations for atrocity prevention arising from existing international treaty and customary law. States are thereby required to take reasonable measures to prevent the commission of atrocity crimes in their own territories, and in certain circumstances beyond their borders, as far as possible. The jurisprudence of human rights bodies concerning suppression and positive obligations in international human rights and humanitarian law further supports such atrocity prevention obligations. The paper ends with an examination of possible operational prevention methods to fulfil States’ obligations of atrocity prevention.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Yvonne Breitwieser-Faria\nPrevention of Atrocity Crimes: Legal Obligations of States and Due Diligence | 451 | ||
| I. Introduction | 451 | ||
| II. The Foundation of Legal Obligations for Atrocity Prevention | 455 | ||
| A. The Legal Obligation to Prevent Genocide | 456 | ||
| B. The Legal Obligation to Prevent War Crimes | 458 | ||
| C. The Legal Obligation to Prevent Crimes Against Humanity | 451 | ||
| III. International Human Rights and Humanitarian Law Considerations | 451 | ||
| A. Suppression Obligations | 451 | ||
| B. Positive Obligations | 451 | ||
| 1. In Human Rights Law | 451 | ||
| 2. In International Humanitarian Law | 452 | ||
| IV. Due Diligence and Operational Prevention Methods in Atrocity Prevention | 452 | ||
| V. Conclusion | 452 |