¹ Quoted in Dadrian, V. N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications” (1989) 13 Yale J. Int’l L. 221 at 223Google Scholar.

² Ibid. at 225; see also Sohn, L. B. and Buergenthal, T., International Protection of Human Rights (New York: Bobb-Merrill, 1973) at 181–92.Google Scholar

³ Dadrian, supra note 1. See also Dadrian, V. N., “The Historical and Legal Interconnections between the Armenian Genocide and the Jewish Holocaust: From Impunity to RetributiveJustice” (1998) 23 Yale J. Int’l L. 503 Google Scholar.

⁴ Roberts, A. and Kingsbury, B., “Introduction: The UN’s Roles in International Society since 1945” in Roberts, A. and Kingsbury, B., eds., United Nations, Divided World: The U.N. ’s Roles in International Relations, 2^nd ed. (Oxford: Oxford University Press, 1993) at 6.Google Scholar

⁵ UN General Assembly [hereinafter GA] Resolution 96(I), UN Doc. A/64/Add. 1 at 188 (1946).

⁶ Convention on the Prevention and Punishment of the Crime of Genocide, GA Resolution 260(A)(III), UN GAOR, 3^rd Sess., Supp. No. 1921, Dec. 9, 1948, 78 U.N.T.S. 227 [hereinafter Genocide Convention]. The Genocide Convention was approved and proposed for signature and ratiication or accession by GA Resolution 260A(III) of December 9, 1948. It entered into force on January 12, 1951. In addition to the 135 state parties (including all five permanent members of the UN Security Council), there are forty-one signatories who have not yet ratiied the treaty. The text of the convention and list of ratiications can be found online at <http://www.un.org/Depts/Treaty/bible.htm> (date accessed: October 2, 2003).

⁷ United Nations Secretary-General Annan, Kofi, Address Commemorating the Occasion of the Fiftieth Anniversary of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1998, accessible at <http://www.un.org/ Docs/SG/ quotable/6822.htm>..>Google Scholar

⁸ Special Rapporteur Benjamin Withaker has described genocide as “the ultimate crime and the gravest violation of human rights it is possible to commit.” See Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide Prepared by Mr Ben Whitaker, Special Rapporteur, UN ESCOR, 38^th Sess., Supp. No. 37, at 5, UN Doc. E/CN.4/Sub.2/1985/6 (1985) [hereinafter Whitaker Report].

⁹ This expression is borrowed from the Corfu Channel case (United Kingdom v. Albania), [1949] I.C.J. Rep. 4 at 24 [hereinafter Corfu Channel case].

¹⁰ Charter of the United Nations,June 26, 1945, Can. T.S. 1955 No. 7 [hereinafter UN Charter].

¹¹ Akhavan, P., “Enforcement of the Genocide Convention: A Challenge to Civilization” (1995) 8 Harv. H.R.J. 229 at 257Google Scholar.

¹² Oppenheim, L., International Law: A Treatise, vol. 1, 8^th ed. (London: Longmans and Company, 1905) at 751.Google Scholar

¹³ Universal Declaration of Human Rights, GA Resolution 217 (III), UN GAOR, 3^rd Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.

¹⁴ Four UN reports on genocide have been prepared during the 1985-99 period. They address specifically the issue of genocide prevention. In the Whitaker Report, supra note 8, which was presented to the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations ECOSOC, the special rapporteur made speciic recommendations on how the UN could develop a capacity to prevent genocide (para. 85). While the recommendations for the establishment of a UN High Commissioner on Human Rights and an International Criminal Court have been realized, his recommendation for the establishment of an impartial international body concerned with preventing genocide has been ignored. In the Report by Mr. B.W. Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on His Mission to Rwanda from 8 to 17 April 1993, August 11, 1993, UN Doc. E/CN.4/ 1994/7/Add.1 [hereinafter Ndiaye Report], the special rapporteur made recommendations on how to respond to the escalating ethnic violence and the risk of genocide in Rwanda (para. 78). His report was largely ignored. In the Report of the Secretary-General pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, November 15, 1999, UN Doc. A/54/549 [hereinafter Srebrenica Report], Secretary-General Koi Annan said the UN Security Council should have approved “more decisive and forceful action to prevent the unfolding horror” in Bosnia and that “safe areas” should never be established again without credible means of defence. The report refers to an “attempted genocide” in Bosnia. Since the conviction of perpetrators for genocide at The Hague in August 2001 , the Srebrenica crime has become widely recognized as genocide. Finally, in the Report of the Independent Inquiry into United Nations Actions during the 1994 Rwanda Genocide, December 15, 1999 [hereinafter Carlsson Report], the special rapporteurs found that the UN had ignored evidence that genocide was planned and had refused to act once it began. In particular, the report is critical of the Security Council’s April 21, 1994 decision to reduce the strength of the United Nations Assistance Mission for Rwanda [hereinafter UNAMIR] after the genocidal acts began and highlights the role of Koi Annan, who was head of UN peacekeeping at the time, sharply criticizing his failure to act on a January 11, 1994 warning of the risk of genocide. The Special Rapporteurs Carlsson, Sung-Joo, and Kupolati recommended that the secretary-general should initiate an “action plan to prevent genocide” in which each part of the “United Nations system, including Member States, should examine what active steps” they should take. The plan should include a “follow-up mechanism to ensure that such steps are taken.” No such action plan has been initiated yet. The text of the report can be found online at <http://wrww.ess.uwe.ac.uk/documents/RwandaReport5.htm> (date accessed: July 22, 2003).

¹⁵ Other than the Nazi extermination of the Jews, post-war examples of genocide that have been cited are “the Tutsi massacre of Hutu in Burundi in 1965 and 1972, the Paraguayan massacre of Aché Indians prior to 1974, the Khmer Rouge massacre in Kamputchea between 1975 and 1978, and the contemporary Iranian killings of the Bahais.” See Whitaker Report, supra note 8 at 9-10, para. 24. Since 1985, the cataclysms in Tibet, northern Iraq, the former Yugoslavia (Bosnia), Rwanda, and, more recently, in Kosovo and East Timor, among others, may also be added to the list.

¹⁶ Genocide Convention, supra note 6 at preamble [emphasis added].

¹⁷ Ibid. [emphasis added].

¹⁸ Gordon, R., “United Nations Intervention in Internal Conflicts: Iraq, Somalia and Beyond” (1994) 15 Mich. J. Int’l. L. 519 at 536–37.Google Scholar

¹⁹ See generally, Schabas, W. A., “Hate Speech in Rwanda: The Road to Genocide” (2000) 46 McGill L.J. 141 Google Scholar.

²⁰ Jennings, R. and Watts, A., eds., Oppenheim’sInternational Law, vol. 2 to 4, 9^th ed. (Harlow: Longman, 1993) at 991 Google Scholar.

²¹ Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 174 at 178 [hereinafter Reparation case].

²² Ibid. at 179; Higgins, R., Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994) at 46 Google Scholar; Seyersted, F., “International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend upon Their Constitutions” (1964) 4 Indian J. Int’l L. 1 at 40–43 Google Scholar; Barberis, J. A., “Nouvelles Questions Concernant la Personnalité Juridique Internationale” (1983) 179 Rec. des Cours 145 at 219;Google Scholar Waldock, H., “General Course on Public International Law” (1962) 106 Rec. des Cours 1 at 140.Google Scholar

²³ Reparation case, supra note 21 at 178. See also Case Concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep. 66 at 78, para. 25.

²⁴ Reparation case, supra note 21 at 179.

²⁵ Ibid. at 178.

²⁶ Ibid. at 180.

²⁷ UN Charter, supra note 10, Article 1 ( 3). “The Purposes constitute the raison d’être of the Organization. They are the aggregation of the common ends on which our minds met; hence, the cause and object of the Charter to which member states collectively and severally subscribe.” See Goodrich, L. M., Hambro, E., and Simons, A. P., Charter of the United Nations. Commentary and Documents, 3^rd ed. (New York: Columbia University Press, 1969) at 20.Google Scholar

²⁸ UN Charter, supra note 10, Article 55 (c).

²⁹ Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 1969, Article 31 (1) [hereinafter Vienna Convention]. The principles of treaty interpretation contained in Articles 31-33 of the convention reflect customary international law. On this point, see Sir Sinclair, I. M., The Vienna Convention on the Law of Treaties, 2^nd ed. (Dover, NH: Manchester University Press, 1984) at 153;Google Scholar Case Con-cerning the Kasikili/Sedudu Island (Botswana v. Namibia), [ 1999] I.C.J. Rep. 3 at para. 18.

³⁰ Simma, B. and Alston, P., “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1992) 12 Aus. Y.B. Int’l L. 82 at 98–99 Google Scholar; Lane, E., “Demanding Human Rights: A Change in the World Legal Order” (1978) 6 Hofstra L. Rev. 269 at 279–86;Google Scholar and Watson, J. S., “Autointerpretation, Competence, and the Continuing Validity of Article 2 (7) of the UN Charter” (1977) 71 A.J.I.L. 60 at 71–77 Google Scholar.

³¹ UN Charter, Article 13(1). The protective mechanisms envisaged here may be extremely relevant in the context of the prevention of genocide. They range from the action under the Economic and Social Council [hereinafter ECOSOC] resolutions in the case of a consistent pattern of gross and persistent violations of human rights, to public debate in the UN Commission of Human Rights and studies and reports undertaken under the aegis of the commission and its SubCommission on Prevention of Discrimination and Protection of Minorities. Further action may result from the operation of the procedures speciied in the International Covenant on Civil and Political Rights, December 19, 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, art. 4, at 6 [hereinafter ICCPR] and the International Convention on the Elimination of All Forms of Racial Discrimination, January 4, 1969, 660 U.N.T.S. 195, and under the various regional systems for human rights protection. See generally on this point, Meron, T., ed., Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1984)Google Scholar, Chapter 6; Vandenbosch, A. and Hogan, W. N., The United Nations Background, Organization, Functions, Activities (New York: McGraw-Hill, 1952) at 96, 112Google Scholar; Procida, N. M., “Ethnic Cleansing in Bosnia-Herzegovina, A Case Study: Employing United Nations Mechanisms to Enforce the Convention on the Prevention and Punishment of the Crime of Genocide” (1995) 18 Suffolk Transnat’l L. Rev. 655 at 671.Google Scholar All of this does not make up, however, for the need for a special committee on genocide, which would be the appropriate forum for the airing of questions pertaining speciically to genocide. A recent suggestion that such an organ be created was made by the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, but it has not been taken up by bodies in a position to implement such a measure.

³² Lauterpacht, H., International Law and Human Rights (London: Stevens, 1950) at 186 Google Scholar; McDougal, M. and Reisman, W. M., “Rhodesia and the United Nations: The Lawfulness of International Concern” (1968) 62 A.J.I.L. 1 at 12–13 Google Scholar, and n. 50. International instruments have declared consistently that the protection of human rights constitutes the foundation of peace — a view that GA resolutions have reiterated. See, for example, Universal Declaration of Human Rights, supra note 13 at preamble; United Nations, Human Rights and Mass Exoduses, UN GAOR, 48^th Sess., Agenda Item 114(b) at 1, UN Doc. A/RES/48/139. See also Malanczuk, P., Humanitarian Intervention and the Legitimacy of theUse of Force (Hing-ham, MA: M. Nijkhoff International, 1993) at 25;Google Scholar Delbrück, J., “A Fresh Look at Humanitarian Intervention under the Authority of the United Nations” (1992) 67:4 Indiana L. J. 887 at 900Google Scholar.

³³ UN Charter, supra note 10, Article 1 (1) [emphasis added].

³⁴ Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, [1962] I.C.J. Rep. 151 at 164 [hereinafter Certain Expenses case].

³⁵ See generally Schachter, O., “International Law in Theory and Practice. General Course of Public International Law” (1982) 178 Rec. des Cours 21 at 328–29.Google Scholar

³⁶ According to the wording of Article 56, the member states are only under an obligation to give, jointly or separately, such support to the UN to achieve the purposes delineated in Article 55 as they see fit. Article 56, however, does require the member states to cooperate with the UN in a constructive way, and obstructive policies are thus excluded. The rather limited obligatory function of Article 56 is the result of the wording of Article 55, to which it refers. The latter, which is addressed to the UN, only describes purposes (and not substantive obligations) to be achieved by means of cooperation. To this extent, Article 56 can thus only create substantive obligations (as opposed to procedural obligations) upon states in so far as Article 55 contains a corresponding basis in this respect. This is partly the case with respect to Article 55(c). Although the “universal respect for, and observance of, human rights and fundamental freedoms” has been formulated as an objective, the additional words “without distinction as to race, sex, language, or religion” already circumscribe a fixed and directly executable obligation. See on this point Wolfrum, R., “Article 56” in Simma, B. et al., eds., The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994) at 56–57 Google Scholar.

³⁷ Singh, N., Enforcement of Human Rights in Peace and War and the Future of Humanity (Dordrecht: Martinus Nijhoff, 1986) at 28;Google Scholar Ramcharan, B., The Concept and Present Status of the International Protection of Human Rights — Forty Years after the Universal Declaration (Dordrecht: Martinus Nijhoff, 1988) at 59 Google Scholar; and Brownlie, I., Principles of Public International Law, 4^th ed. (Oxford: Clarendon Press, 1990) at 570 Google Scholar.

³⁸ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16 at 57, para. 131 [hereinafter Namibia case]. See also Schwelb, E., “The International Court of Justice and the Human Rights Clauses of the Charter” (1972) 66 A.J.I.L. 337 at 350–51Google Scholar and, more generally, Rodley, N., “Human Rights and Humanitarian Intervention: The Case Law of the World Court” (1989) 38 I.C.L.Q. 321 at 323–27.CrossRefGoogle Scholar The earlier view is disputed by Judge van Wynk in the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of December 21, 1962, [1962] I.C.J. Rep. 319 at 602-16 [hereinafter South West Africa case].

³⁹ United States Diplomatic and Consular Staff at Tehran (United States of America v. Iran), [1980] I.C.J. Rep. 3 at 42-44, particularly at para. 91 [hereinafter Teheran Hostages case].

⁴⁰ In the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States, GA Resolution 2625 (XXV) GAOR, 25 Sess., Supp. No. 28, UN Doc. A/8028 (1971), reprinted in 9 I.L.M. 1292 [hereinafter Declaration on Friendly Relations], the General Assembly of the UN proclaimed, in the fourth and fifth principles, that “[s]tates shall co-operate in the promotion of universal respect for and observance of human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance” and that “[e]very state has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter’ [specifically referring here to the principle of international cooperation through the UN for the promotion and protection of all human rights under Article 56 of the UN Charter] [emphasis added]. See also Reisman, W. M. and McDougal, M., “Humanitarian Intervention to Protect the Ibos” in Lillich, R., ed., Humanitarian Intervention and the United Nations (Charlotteville: University of Virginia Press, 1973) at 175 Google Scholar; Petrenko, A., “The Human Rights Provisions of the United Nations Charter” (1978) 9 Man. L.J. 53 at 81–87;Google Scholar and Marie, J.-B. and Questiaux, N., “Article 55: alinéa c” in Cot, J.-P. and Pellet, A., La Charte des Nations Unies: Commentaires Article par Article (Paris: Economica, Bruylant, 1985) at 865–68;Google Scholar Partsch, K.-J., “Article 55 (c)” in Simma, , supra note 36 at 779–83.Google Scholar

⁴¹ Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Case, Second Phase, Advisory Opinion, [1950] I.C.J. Rep. 221 at 228-29 [hereinafter Interpretation of Peace Treaties case]; Lauterpacht, supra note 32 at 159.

⁴² Sohn, L. B., “The New International Law: Protection of the Rights of Individuals Rather Than States” (1982) 32 Am. U. L. Rev. 1 at 13–17;Google Scholar Meron, T., Human Rights and Humanitarian Norms as Customary Law (Clarendon: Oxford, 1989) at 81–85;Google Scholar Jessup, P. C., A Modern Law of Nations, 4^th ed. (New York: Macmillan, 1952) at 87–93;Google Scholar J.-B. Marie and N. Questiaux, supra note 40 at 870. See also Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, April 22 to May 13, 1968, UN Doc. A/CONF. 32/41 at 3, which clearly refers to the relevant UN Charter provisions as constituting international obligations.

⁴³ This right is specifically protected in a non-derogable form in many instruments. See Universal Declaration of Human Rights, supra note 13, Article 3; ICCPR, supra note 31; Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221, Eur. T.S. 5, art. 2; American Convention on Human Rights, November 22, 1969, 1144 U.N.T.S. 123, art. 27; and African Charter of Human and People’s Rights, OUA Doc. CAB/LEG/67/ 3/Rev.5, ( 1982) 21 I.L.M. 58, art. 20. In his dissenting opinion in the CaseConcerning the Legality of the Threat and Use of Nuclear Weapons, Advisory Opinion, [ 1996-I] I.C.J. Rep. 3 at 284 [hereinafter Nuclear Weapons case], Judge Weeramantry described this right as “one of the rights which constitute the irreducible core of human rights.” See also Meron, T., “On a Hierarchy of International Human Rights” (1986) 80 A.J.I.L. 1 at 4, 11Google Scholar; Ramcharam, B. G., “The Concept and Dimensions of the Right to Life” in Ramcharam, B. G., ed., The Right to Life in International Law, Hague Academy of International Law, Center for Studies and Research (Dordrecht: Boston, Martinus Nijhoff, 1985) at 15;Google Scholar Dupuy, P.-M., Droit International Public, 3^rd ed. (Paris: Dalloz, 1995) at 172.Google Scholar

⁴⁴ Declaration on the Rights of Persons Belonging to National and Ethnic Religious and Linguistic Minorities, GA Res. UN 47/135, annex, 47, UN GA OR, Supp. No. 49, 1993 UN Doc. A/47/49, 210; (1993), reprinted in 32 I.L.M. 911, Preamble; Ermacora, F., “The Protection of Minorities before the United Nations” (1983) 182 Rec. des Cours 247 at 312–13.Google Scholar See also United Nations, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Question of the Prevention and Punishment of the Crime of Genocide, prepared by Mr. Nicodème Ruhashyankiko (Rwanda), Special Rapporteur, UN ESCOR, 31^st Sess., Supp. No. 120, UN Doc. E/CN.4/Sub.2/416 (1978) at 121 ff. [hereinafter Ruhashyankiko Report], which concludes that there can be no doubt that the groups envisaged in the Genocide Convention can also be considered as minorities; Achour, Y. Ben, “Souveraineté et Protection Internationale des Minorités” (1994) 245 Rec. des Cours 321 at 442–43.Google Scholar

⁴⁵ Lemkin, R., Axis Rule in Occupied Europe (Washington, DC: Washington Carnegie Endowment for International Peace, 1944) at 79–90;Google Scholar Lemkin, R., “Genocide as a Crime under International Law” (1947) 41 A.J.I.L. 145 at 145.Google Scholar

⁴⁶ Case Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, [1951] I.C.J. Rep. 15 at 23; Ermacora, supra note 44 at 313-14; Shaw, M. N., “Genocide and International Law” in Dinstein, Y. and Tabor, M. y, eds., International Law at a Time of Perplexity: Essays in the Honor of S. Rosenne (Dordrecht: Kluwer Academic Publishers, 1989) at 803–4.Google Scholar

⁴⁷ On the doctrine of implied powers, see Campbell, A. I. L., “The Limits of the Powers of International Organizations” (1983) 32 I.C.L.Q. 523 at 532;CrossRefGoogle Scholar Rama-Montaldo, M., “International Legal Personality and Implied Powers of International Organizations” (1970) 44 Brit. YB. Int’l L. 111 at 147;Google Scholar Bindshedler, R. L., “La Délimitation des Compétences des Nations Unies” (1963) 108 Rec. des Cours 305 at 327–29.Google Scholar

⁴⁸ Reparation case, supra note 21 at 182; Effects of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, [1954] I.C.J. Rep. 47 at 56-57.

⁴⁹ Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S.3.

⁵⁰ In its Final Declaration, the International Conference for the Protection of War Victims, which was held in Geneva in 1993, took up the idea of Article 89 and stressed the obligation of the participating states “to act in cooperation with the UN and in conformity with the UN Charter to ensure full compliance with international humanitarian law in the event of genocide and other serious violations of this law.” See “International Conference for the Protection of War Victims (Geneva 1993), Final Declaration,” reproduced in (1993) 294 Int’l Rev. Red Cross 377 at 378, para. I.6.

⁵¹ See Wolfrum, supra note 36 at 794. Within the UN framework, the General Assembly, the Security Council, and the Commission on Human Rights have on various occasions condemned violations of humanitarian principles. Thus, for instance, regarding the implementation of international humanitarian law in Bosnia-Herzegovina, the Security Council, as the principal UN organ endowed with the responsibility for maintaining peace, has undertaken considerable efforts to demand that all parties “cease and desist from all breaches of international humanitarian law” (UN Doc. S/RES/780, 1992 at para. 2); to determine that certain acts constitute violations of that body of law; to condemn violations of some humanitarian laws; and to request that governments take specific actions in reaction to those violations. See on this point Roberts, A., “The Laws of War: Problems of Implementation in Contemporary Conflicts” (1995) 6 Duke J. Comp. & Int’l L. 11 Google Scholar; de Chazournes, L. Boisson, “The Collective Responsibility of States to Ensure Respect for Humanitarian Principles” in Bloed, A. et al., eds., Monitoring Human Rights in Europe (The Hague: Kluwer Academic Publishers, 1993) at 247–60.Google Scholar

⁵² 1949 Geneva Conventions, including Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85; Convention (III) relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135; Convention (IV) relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Conventions]

⁵³ Common Article 1 of the Geneva Conventions, supra note 52. This provision is but an expression of the erga omnes character of humanitarian law and is often seen as providing the nucleus for a system of collective responsibility for international implementation of humanitarian law. The words “and ensure respect” have been widely interpreted as signifying that states, whether or not involved in a particular conflict, have a duty to ensure implementation of the conventions wherever and whenever they are being violated and should endeavour to bring the violating state back to an attitude of compliance with humanitarian law. On such an interpretation, see Pictet, J., The Geneva Conventions of 12 August 1949: A Commentary, vol. 1 (Geneva: International Committee of the Red Cross, 1952) at 26;Google Scholar Condorelli, L. and de Chazournes, L. Boisson, “Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests” (March 31, 2000) 837 Int’l Rev. Red Cross 67, accessible at <http://www.icrc.org/eng/review-articles>Google Scholar (date accessed: July 21, 2003).

⁵⁴ In this author’s view, there is no doubt that the UN Charter’s notion of “human rights and fundamental freedoms for all” also encompasses what the United Nations itself has called “human rights in armed conflicts” and what is referred to as “humanitarian law” in this article. This is naturally based on the premise that humanitarian law and human rights law are not completely separate ields and sometimes overlap as both share the common basis of setting limits to violence against human life and dignity. The outbreak of violence within the territory of a state, which is the traditional and most common manifestation of genocidal acts, is thus the obvious example of the simultaneous applicability of rules upholding human rights and the humanitarian law governing non-international armed conflict. See on this point Meron, T., Human Rights in Internal Strife: Their International Protection (Cambridge: Grotius Publications, 1987) at 28 Google Scholar; Schindler, D., “The International Committee of the Red Cross and Human Rights” (1979) 208 Int’l Rev. Red Cross 5;Google Scholar Doswald-Beck, L. and Vité, S., “International Humanitarian Law and Human Rights Law” (1993) 800 Int’l Rev. Red Cross 99.Google Scholar

⁵⁵ Damrosch, L. F., “Introduction” in Damrosch, L. F., Enforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations, 1993) at 6.Google Scholar

⁵⁶ This language is borrowed from Article 2(7) of the UN Charter, supra note 10.

⁵⁷ Ermacora, F., “Article 2 (7)” in Simma, et al, supra note 36 at 143;Google Scholar Opperman, T., “Intervention” in Bernhardt, R. et al., eds., Encyclopedia of Public International Law, Max Planck Institute of International Law, (Amsterdam: North-Holland, 1987), 233 at 235.Google Scholar

⁵⁸ The traditional Cold War view of the principle of non-intervention is relected in the Declaration on Friendly Relations, supra note 40; see also Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Resolution 2131 (XX), UN GAOR, Supp. (No. 24), UN Doc. A/6014, 1965. Unlike the UN Charter provision, these two documents prohibit intervention by states rather than the organization. It is to be noted that the former instrument, however unsatisfactory its provisions may be, remains the leading text reflecting the current state of general international law on the duty of non-intervention in internal affairs.

⁵⁹ Case Concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America), [1986] I.C.J. Rep. 14 at 102, paras 192-93 [hereinafter Nicaragua case].

⁶⁰ Tesón, F., Humanitarian Intervention: An Inquiry into Law and Morality (New York: Transnational Publishers, 1997) at 3.Google Scholar

⁶¹ Article 15(8) of the Covenant of the League of Nations provided that the Council could take no action on a dispute arising out of a matter that, by international law, was solely within the domestic jurisdiction of the state concerned. However, under paragraph 12 of the Minorities Treaty between the Principal Allied and Associated Powers and Poland, the parties agreed that the minority provisions constituted “obligations of international concern,” which were to be placed “under the guarantee of the League of Nations.” This had the important effect of removing the protection of minority rights from the area of the exclusive domestic jurisdiction and putting it irmly within the jurisdiction of the League. For a thoughtful discussion, see Alston, P. and Steiner, H., International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 1996) at 97;Google Scholar Kamminga, M. T., Inter-State Accountability for Violations of Human Rights (Philadelphia: University of Pennsylvania Press, 1992) at 64–66.Google Scholar

⁶² This view was aptly favoured in the pre-United Nations and the Cold War era. See Szasz, P., “The Role of the United Nations in Internal Conlicts” (1983) 13 Ga.J. Int’l. & Comp. L. 345 at 353;Google Scholar Ermacora, supra note 57 at 141, 151-52. It is to be noted that during the debates at the San Francisco conference, the actual substitution of the word “essentially” in lieu of “solely” was intended to serve as a limit on international rather than domestic jurisdiction. The Security Council’s interpretation of this term, however, has not followed Article 2 ( 7)’s intended meaning. See on this point Nincic, D., The Problem of Sovereignty in the Charter and in the Practice of the United Nations (The Hague: Martinus Nijhoff, 1970) at 159–160, 182.Google Scholar

⁶³ Tesón, supra note 60 at 137.

⁶⁴ See Nincic, supra note 62 at 186; Declaration on Friendly Relations, supra note 40. In the Nicaragua case, supra note 59 at 131, the International Court of Justice [hereinafter ICJ] has adopted a slightly different position. For the court, there is a presumption that a matter that is traditionally described as a matter or domestic policy falls within the exclusive domestic jurisdiction of the state. This pre-sumption, however, can be rebutted by a showing that the state has bound itself internationally, through custom or treaty with respect to the issue.

⁶⁵ Morgenthau, H., Ambassador Morgenthau’s Story (New York: Doubleday, Page and Company, 1918) at 326–63Google Scholar, quoted in Kamminga, supra note 61 at 16-17. During the Cold War, the Soviets particularly deplored UN human rights initiatives as impermissible intervention. See on this point Franck, T. M., “Soviet Initiatives: U.S. Responses New Opportunities for Reviving the United Nations System” (1989) 83 A.J.I.L. 531 at 533.Google Scholar

⁶⁶ Tesón, supra note 60 at 4.

⁶⁷ Austro-German Customs Union Case, Advisory Opinion ( 1931 ), P.C.I.J. (Ser. A/B) No. 41 [hereinafter Austro-German Customs Union case].

⁶⁸ In stressing the need for balancing the rights of states (as mentioned in the UN Charter) and the protection of individual human rights, then Secretary-General Javier Pérez de Cuellar challenged the traditional construction placed on Article 2(7): “It is now increasingly felt that the principle of non-interference with the essential domestic jurisdiction of States cannot be regarded as a protective barrier behind which human rights could be massively or systematically violated with impunity … The case for impinging on the sovereignty, territorial integrity and political independence of States is by itself indubitably strong. But it would only be weakened if it were to carry the implication that sovereignty, even in this day and age, includes the right of mass slaughter or of launching systematic campaigns of decimation or forced exodus of civilian populations in the name of controlling civil strife or insurrection.” See Report of the Secretary General on the Work of the Organization, UN Doc. GA/46/404, 1991, reprinted in (1991) 45 Y.B.U.N. 7 at 7-8.

⁶⁹ Nationality Decrees in Tunis and Morocco Case ( 1923), P.C.I.J. (Ser. B) No. 4 at 2324. This approach was conirmed in a number of subsequent cases of the ICJ: Anglo-Iranian Oil Co. Case (Interim Measures), [ 1951 ] I.C.J. Rep. 89 at 93; Interhandel Case (Switzerland v. United States of America), [1959] I.C.J Rep. 6 at 24; Interpretation of Peace Treaties case, supra note 41; Teheran Hostages case, supra note 39 at 15-16; Namibia case, supra note 38 at 31 . See also generally Rajan, M. S., The Expanding Jurisdiction of the United Nations (Bombay: Orient Longmans, 1982) at 168–69;Google Scholar Fawcett, J. E. S., “General Course on Public International Law” (1971) 132 Rec. des Cours 363 at 392;Google Scholar and Schwarzenberger, G. and Brown, E., A Manuel of International Law (London: Stevens, 1960) at 60 Google Scholar, where the authors state that “the totality of rules of international law can be explained as a constantly changing and dynamic interplay between the rules underlying the principles of sovereignty and those governing the other fundamental principles of international law.”

⁷⁰ The Institut de Droit International addressed the question of the scope of the domaine réservé in 1954: “The reserved domain is the domain of state activities where the state is not bound by international law. The extent of this domain depends on international law and varies according to its developments.” See Resolution of the Institut de Droit International, Session d’Aix-en-Provence, “La Détermination du Domaine Réservé et ses Effets” ( 1954-II) 45 Ann. instit. dr. int’l at 292 [my translation].

⁷¹ Resolution of the Institut de Droit International, Session de Saint-Jacques-de-Compostelle, “The Protection of Human Rights and the Principle of NonIntervention in Internal Affairs of States,” Art. 2 (1990-II) 63 Ann. instit. dr. int’l, Paris, Pédone, 338 at 340, UN Doc. E/CN.4/1990/NGO/55. See the excellent analysis of the resolution and its earlier drafts in Ragazzi, M., The Concept of International Obligations Erga Omnes (Oxford: Clarendon Press, 1997) at 141–44.Google Scholar See also the special report submitted by Sir Gerald Fitzmaurice to the Institut de Droit International in 1973 where he refers to a “general duty to respect human rights,” which every state has an interest to protect: Fitzmaurice, G., “The Future of Public International Law and of the International Legal System in the Circumstances of Today” in Institut de Droit International, Livre du Centenaire 1873-1973: Évolution et perspectives du droit international (Basel: Karger Publishers, 1973) at 323 Google Scholar, para. 111 (c). Although it would be impossible to render a full account of all the doctrinal proponents of this position, I would mention the following: Higgins, R., The Development of International Law through the Political Organs of the United Nations (New York: Oxford University Press, 1963) at 65–67;Google Scholar Ermacora, F., “Human Rights and DomesticJurisdiction” (1968) 124 Rec. des Cours 371 at 436;Google Scholar Reisman, W. M., “Sovereignty and Human Rights in Contemporary International Law” (1990) 84 A.J.I.L. 866 at 869, 872–73Google Scholar; Fonteyne, J.-P. L., “The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN Charter” (1974) 4 Cal. W. Int’l L.J. 203 at 241;Google Scholar Lauterpacht, supra note 32 at 178. For the impact of the right to self-determination of peoples on the restriction of the notion of “domestic jurisdiction,” see Arangio-Ruiz, G., “Le domaine réservé. L’organisation internationale et le rapport entre le droit international et le droit interne” (1990) 225 Rec. des Cours 9 at 320–27, 335-36.Google Scholar

⁷² Scheffer, D., “Toward a Modern Doctrine of Humanitarian Intervention” (1992) 23 U. Toledo L. Rev. 253 at 260.Google Scholar

⁷³ Pease, K. K. and Forsythe, D. P., “Human Rights, Humanitarian Intervention, and World Politics” (1993) 15 Hum. Rts. Q. 290 at 295CrossRefGoogle Scholar. Some states have always been disinclined to go along with international regimes that forcibly seek to prevent humanitarian disasters by promoting democracy. They see the UN as an instrument of the United States and other Northern countries — states dominating the organization — to meddle in their internal affairs. For example, these states may think that the UN overstepped its bounds by getting involved in Haiti (see discussion later in this article) and want to protect themselves from such interferences in the future. Philip Alston notes that one particular block of states, the signatories to the Bangkok Declaration, which was adopted at the World Conference Regional Preparatory Meeting for Asia in 1993, has been particularly reticent to extend the principles of human rights very far. See Alston, P., “The UN’s Human Rights Record: From San Francisco to Vienna and Beyond” (1994) 16 Hum. Rts. Q. 375 at 382.CrossRefGoogle Scholar

⁷⁴ Some writers such as Rosalyn Higgins have argued that “states must be made responsible to the international community when their actions cause substantial international effects.” See Higgins, supra note 71 at 62. However, as it has been rightly noted by Tesón, such a policy seems outmoded today in light of recent developments in UN law. See Tesón, F., “Collective Humanitarian Intervention” (1996) 17(2) Mich.J. Int’l L. 323 at 329 ff;Google Scholar Harff, B., Genocide and Human Rights: International Legal and Political Issues (Denver: Colorado, Graduate School of International Studies, University of Denver, 1984) at 42–43 Google Scholar; Reisman and McDougal, supra note 40 at 189, 190-91 . See also Judge Jessup’s separate opinion in the South West Africa case, supra note 38 at 425-27.

⁷⁵ See Rajan, supra note 69 at 133.

⁷⁶ Declaration on Friendly Relations, supra note 40.

⁷⁷ See statements in Kamminga, supra note 61 at 81 , n. 57.

⁷⁸ Ibid. at n. 58. See also Fonteyne, J.-P., “Forcible Self-Help to Protect Human Rights: Recent Views from the United Nations” in Lillich, , supra note 40 at 216 Google Scholar.

⁷⁹ See the discussion on this point in Guillaume, G., “Article 2: paragraphe 7” in Cot, and Pellet, , supra note 40 at 144, 153–55.Google Scholar

⁸⁰ Ibid.

⁸¹ See Vienna Convention, supra note 29, Article 53. During the codification of the law of treaties, the prohibition of genocide was in fact the most cited example of peremptory rule in the ield of international human rights. See United Nations, United Nations Conference on the Law of Treaties: Official Records, First Session, vol. I (New York: United Nations, 1969) at 296-323. For support for the prohibition against genocide as a jus cogens rule, see Alexidze, L., “The Legal Nature ofJus Cogens in Contemporary International Law” (1981) 172 Rec. des Cours 219 at 262 Google Scholar; Brownlie, supra note 37 at 513; Sinclair, supra note 29 at 21617; Ruhashyankiko Report, supra note 44 at 799.

⁸² See examples cited in Tesón, supra note 74 at 330-31 .

⁸³ UN ECOSOC Resolution 1235 (XLII), UN ESCOR, 42^nd Sess., Supp. No. 1 at 17, UN Doc. E/4393; Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms, May 27, 1970, ECOSOC Resolution 1503 (XLVIII), 48 UN ESCOR, Supp. (No. 1A) 8, UN Doc. E/4832/Add.1 (1970).

⁸⁴ UN ECOSOC Resolution 1235, supra note 83. Although it is not clear what should be understood by “a consistent pattern of gross violations,” especially since the UN itself has not defined the concept, a precise definition is not needed since the political organs of the UN have on numerous occasions demonstrated that they do not consider themselves restricted by this category. For a tentative definition, see Kamminga, supra note 61 at 118, n. 216 and accompanying text.

⁸⁵ UN ECOSOC Resolution 37/200, UN Doc. A/RES/37/200 (December 18, 1982).

⁸⁶ Kamminga, supra note 61 at 117-19.

⁸⁷ Ruhashyankiko Report, supra note 44 at para. 304.

⁸⁸ For a thorough discussion of the debates in the Ad Hoc Committee and the Sixth Committee on Genocide on Article VIII, see Schabas, W. A., Genocide and International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000) at 448–51.Google Scholar

⁸⁹ See Robinson, N., Genocide Convention: A Commentary (New York: Institute of Jew-ish Affairs, 1960) at 91 Google Scholar; Drost, P. N., The Crime of State II. Genocide (Leyden: A.W. Sythoff, 1959) at 106 Google Scholar; Cassese, A., “La Communauté Internationale et le Génocide” in Bardonnet, D., ed., Le droit international au service de la paix, de la justice et du développement. Mélanges Michel Virally (Paris: Pédone, 1991) at 185 Google Scholar.

⁹⁰ See the declaration of the delegate of the United Kingdom, Gerald Fitzmaurice, UN GAOR 6th Comm., 3^rd Sess., pt.1, 101st Mtg. at 409, UN Doc. A/C.6/SR,61-140 (1948): “Under the provisions of the Charter … Members were already entitled to appeal to organs of the United Nations in case of need and it was, therefore, unnecessary and undesirable to repeat those provisions in a new convention.” In fact, the proposal of Belgium and the United Kingdom to delete the article was adopted (see respectively, UN Doc. A/C.6/236 and Corr. 1 and UN Doc. A/C.6/217), but the provision was reinstated by the Sixth Committee at the instigation of Australia for the sake of clarity.

⁹¹ Robinson, supra note 89 at 90-91; Kunz, J. L., “The United Nations Convention on Genocide” (1949) 43 A.J.I.L. 738 at 745–46.Google Scholar According to Kunz, acts of genocide are at any rate violations of human rights that come within the purview of the UN Charter on the basis of Article 1 (3), 13(1)b), 55(c), and 56. This view is also shared by Sir Hersch Lauterpacht, supra note 32 at para. 340.

⁹² Withaker Report, supra note 8 at para. 66.

⁹³ Ruhashyankiko Report, supra note 44 at 799.

⁹⁴ Edwards, R. W., “Contributions of the Genocide Convention to the Development of International Law” (1981) 8 Ohio Northern U. L. Rev. 300 at 306–8Google Scholar; Ver-hoeven, J., “Le crime de génocide: originalité et ambiguité” (1991) 24 Rev. B.D.I. 5 at 12;Google Scholar Kunz, supra note 91 at 738; Jescheck, H.-H., “Genocide” in Bernhardt, , supra note 57 at 256;Google Scholar Harff, supra note 74.

⁹⁵ Robinson, supra note 89 at 94.

⁹⁶ Drost, supra note 89 at 107-8. It is to be noted that Article 10 of the UN Charter is framed in terms so broad that no limitation whatsoever can be placed on the discussions and recommendations by the General Assembly on human rights issues. Thus, in the Interpretation of Peace Treaties, supra note 41 at 221-30, the ICJ rejected an objection that asserted that the General Assembly, by dealing with questions of human rights, was intervening in essentially domestic matters of (at that time) non-members states. The court concluded that, particularly in light of Article 55 of the UN Charter and the principle of promoting “universal respect for, and observance of, human rights,” the latter were within the scope of the UN Charter.

⁹⁷ See Certain Expenses case, supra note 34 at 295 (dissenting opinion of Judge Bustamante).

⁹⁸ Drost, supra note 89 at 109. It is to be noted that the expression “prima facie authorized” refers to the ensuing discussion about the limits imposed by the UN Charter to the exercise of powers of the Security Council to prevent genocide wherever it occurs through coercive measures.

⁹⁹ This was the virtually unanimous view before 1948. See on this point Fox, G. H., “The Right to Political Participation in International Law” (1992) 17 Yale J. L. 539 at 549–69.Google Scholar

¹⁰⁰ See the Montevideo Convention on Rights and Duties of States, December 26, 1934, 165 L.N.T.S. 19, U.N.T.S. 881, which states at Article 1 that a state should possess four qualiications: “(a) a permanent population; (b) a deined terri-tory;(c) a government; and (d) capacity to enter into relations with other states.” The convention has been described as basing recognition, as evidence of statehood, on effectiveness. Tesón also notes that “[w]hether political power has been consensually granted to the government or the usurpers rule instead through fear and terror is of little interest of the supporters of the doctrine of effectiveness.” Tesón, supra note 60 at 141.

¹⁰¹ Austro-German Customs Union case, supra note 67 (separate opinion of Judge Anzilotti); See also Nicaragua case, supra note 59 at 131.

¹⁰² Abiew, F. K., The Evolution of the Doctrine and Practice of Humanitarian Intervention (The Hague: Kluwer Law International, 1999) at 58 Google Scholar; Reisman and McDougal, supra note 40 at 167; Brown, B. S., “International Law. The Protection of Human Rights in Disintegrating States: A New Challenge” (1992) 68 Chi.-Kent. L. Rev. 203 at 224–25;Google Scholar Burton, M. L., “Legalizing the Sublegal A Proposal for Codifying a Doctrine of Unilateral Humanitarian Intervention” (1996) 85 Geo. L.J. 417 at 435-36Google Scholar

¹⁰³ According to Deng, “Where the government is not in control or the controlling authority is unable or unwilling to create the conditions necessary to ensure rights, and gross violations of the rights of masses of people result, sovereignty in the sense of responsible government is forfeited and the international community must provide the needed protection and assistance.” See Deng, F., Protecting the Dispossessed: A Challenge for the International Community (Washington, DC: Brookings Institution, 1993) at 13, 125Google Scholar; Deng, F., “Internally Displaced Persons” (1994) 6 Intern’l. J. Refugee L. 291 at 293, 301-2.Google Scholar

¹⁰⁴ Tesón, supra note 60 at 118-21. On an assessment of such a view through the perspective of international relations theory, see Slaughter-Burley, A.-M., “A Liberal Theory of International Law” (1998) 92 A.J.I.L.1 at 14.Google Scholar

¹⁰⁵ Reisman states that “by shifting the fulcrum of the system from the protection of sovereigns to the protection of people, it works qualitative changes in virtually every component … Precisely because the human rights norms are constitutive, other norms must be reinterpreted in their light, lest anachronisms be produced.” See Reisman, supra note 71 at 872-73.

¹⁰⁶ Ibid. at 869-70; Wildhaber, L., “Sovereignty and International Law” in Macdonald, R. St. J. and Johnston, D. M., eds., The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (The Hague: Martinus Nijhoff, 1983) at 4.Google Scholar For a discussion of the concept of “popular sovereignty” as supporting the emerging right to restore democracy, see Fielding, L. E., “Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy” (1995) 5 Duke J. Comp. & Int’l L. 329 at 338-40.Google Scholar See also on this point Annan, K. A., “Two Concepts of Sovereignty,” accessible at <http://wvww.un.org/Overview/SG/kaecon.htm> at 1–2.+at+1–2.>Google Scholar

¹⁰⁷ Crawford, J., “The Criteria for Statehood in International Law” (1976–77) 48 Brit. YB. Int’l. L. 93 at 141-42;Google Scholar Brownlie, supra note 37 at 77.

¹⁰⁸ Crawford does not seem to envisage such a hypothesis when enumerating the constituting elements of statehood. See Crawford, J., The Creation of States in International Law (Oxford: Clarendon Press, 1979) at 31 ff.Google Scholar Brownlie states that “once a state has been established, extensive civil strife or the breakdown of order through foreign invasion or natural disasters are not considered to affect personality.” See Brownlie, supra note 37 at 73. Traditionally, the international law of recognition of statehood and of territorial acquisition has thus required far less for the maintenance of sovereignty than for its acquisition, perhaps out of legitimate concern about the destabilizing effects of easy allegations of forfeiture.

¹⁰⁹ Island of Palmas (Netherlands v. United States of America) (1928), 2 R.I.A.A. 829 at 839.

¹¹⁰ Ibid. at 845.

¹¹¹ Ibid. at 839.

¹¹² Ibid. This is similar to the “good neighbour principle” spelled out in the decision on the merits in the Corfu Channel case, supra note 9, where the ICJ stated at page 22 that it is “every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states.” The latter proposition was not however articulated as an attribute of state sovereignty.

¹¹³ Cassese, A., “ Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?” (1999) 10(1) Eur.J. Int’l L. 1 at 1-7.Google Scholar See also Thornberry, P., International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991) at 48–52.Google Scholar

¹¹⁴ Tesón, supra note 60 at 15-16; Levitin, M. J., “The Law of Force and the Force of Law: Grenada, The Falklands and Humanitarian Intervention” (1986) 27 Harv. Int’l L.J. 621 at 652;Google Scholar Falk, R., “The Complexities of Humanitarian Intervention: A New World Challenge” (1996) 17 Mich. J. Int’l L. 491 at 503;Google Scholar Burton, supra note 102 at 436; See also Walzer, M., Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books Publishers, 1977) at 53.Google Scholar Walzer acknowledges that state sovereignty and legitimacy derive ultimately from the rights of individuals, but cautions against the open-ended consequences of this viewpoint. According to this view, intervention can only be justified in extreme situations where massacres, genocide, or enslavement occur.

¹¹⁵ Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, [1950] I.C.J. Rep. 4 at 78 [hereinafter Admissions case] (individual opinion of judge Azevedo). See also the Nicaragua case, supra note 59 at 131-33 where the court stated that every state “is free to decide upon the principle and methods of popular consultation,” this being part of a “fundamental right to choose and implement its own political, economic, and social systems.” It stated further that “adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the principle of state sovereignty.” This position of the World Court regarding the principle of democratic rule has been severely criticized by Tesón as entailing that states have the “freedom” to be undemocratic and even totalitarian. See Tesón, supra note 60 at 144.

¹¹⁶ The Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, June 14-25, 1993, UN Doc. A/CONF. 157/24, July 12, 1993, art. 5, pt. 1 , states: “All human rights are universal, indivisible, and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the signiicance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms” [emphasis added].

¹¹⁷ See Universal Declaration of Human Rights, supra note 13, Article 21; ICCPR, supra note 31, Article 25. See generally Fox, supra note 99; Franck, T. M., “The Emerging Right to Democratic Governance” (1992) 86 A.J.I.L. 46;Google Scholar Tesón, supra note 74 at 331-35. See also Franck, T. M., “Fairness in the International Legal and Institutional System” (1993) 240 Rec. des Cours 9 at 118-21.Google Scholar

¹¹⁸ Rawls, J., “The Law of Peoples” in Shute, S. and Hurley, S., On Human Rights: The Oxford Amnesty Lectures (New York: Basic Books Publishers, 1993) at 53 ff., 82.Google Scholar

¹¹⁹ Ermacora, supra note 57 at 152.

¹²⁰ As the International Law Commission has taken pains to point out, “it is one thing to state a rule and the content of the obligation it imposes, and another to determine … what the consequences of … [its] breach must be.” See Report of the International Law Commission on the Work of Its Thirty-Second Session, UN GAOR, 35^th Sess., Supp. No. 10, UN Doc. A/25/10, A/CN.4/SER.A/1980/Add.1 (81.V.4) (Part 2), reproduced in (1980) 2 Y.B. Int’l L. Comm. Part. 2 at para. 24.

¹²¹ McDougal and Reisman, supra note 32 at 6; Virally, M., L’Organisation Mondiale (Paris: A. Colin, 1972) at 456–65Google Scholar; Kelsen, H., The Law of the United Nations: A Critical Analysis ofIts Fundamental Problems (London: Stevens and Sons, 1951) at 727 ff, 737.Google Scholar Perhaps the most extreme view of the discretionary powers of the Security Council with respect to this determination is defended byJean Comba-cau, who states that “[a] threat to peace in the sense of article 39 of the Chapter is a situation which the organ, competent to impose sanctions, declares to be an actual threat to the peace” [my translation]. See Combacau, J., Le pouvoir de sanction de l’ONU. Étude théorique de la coercition non militaire (Paris: Pédone, 1974) at 100.Google Scholar

¹²² Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Request for the Indication of Additional Provisional Measures), Order of September 13, 1993, [1993] I.C.J. Rep. 325 at 440, para. 100 (separate opinion of ad hoc judge Lauterpacht). See also the dissenting opinions of Judges Weeramantry and El-Kosheri in the Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. United States of America), Provisional Measures (Order of April 14, 1992, [1992] I.C.J. Rep. 114 at 174 and 206-7 (para. 23), 211-12 respectively [hereinafter Lockerbie case]; Pellet, A., “Peut-on et doit-on contrôler les actions du Conseil de Sécurité?” in Société Francaise de Droit International, ed., Le Chapitre VII de la Charte des Nations-Unies: Colloque de Rennes (Paris: Pédone, 1995) at 236–37.Google Scholar

¹²³ Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, UN Doc. A/CONF. 129/15; (1986) 25 I.L.M. 543, art. 2 ( 1 )(j). On the principle of subsequent practice by an international organization as one of the most dependable tools for the interpretation of a treaty that is the constituent instrument of an international organization, see the Admissions case, supra note 115 at 9; Ress, “Interpretation” in Simma, supra note 36 at 39-42; Lauterpacht, E., “The Development of the Law of International Organizations by the Decisions of International Tribunals” (1976–IV) 152 Rec. des Cours 377 at 460.Google Scholar See also Judge Lachs’s separate opinion joining the majority in the Lockerbie case, supra note 122 at 138, where he stated: “While the Court has the vocation of applying international law as a universal law, operating both within and outside the United Nations, it is bound to respect, as part of that law, the binding decisions of the Security Council” [emphasis added]. Thus, Security Council decisions are binding as to the current meaning of “threats to peace, breaches of peace, and acts of aggression.”

¹²⁴ Lillich, R., “The Role of the UN Security Council in Protecting Human Rights in Crisis Situations: UN Humanitarian Intervention in the Post-Cold War World” (1994) 3 Tulane J. Int’l and Comp. L. 1 at 5.Google Scholar

¹²⁵ Wippman, D., “Change and Continuity in Legal Justifications for Military Intervention in Internal Conflict” (1996) Col. H.R.L. Rev. 435 at 461-64;Google Scholar Tyagi, YK., “The Concept of Humanitarian Intervention Revisited” (1995) 16 Mich. J. Int’l L. 883 at 886-87Google Scholar (stating that anticipatory breaches of human rights are being recognized by the international community as calls for UN intervention).

¹²⁶ UN SC Resolution 1244, UN SCOR, 4011^th Mtg. at 1, UN Doc. S/RES/1244 (1999). The Security Council had also invoked its Chapter VII powers and retroactively legitimated the Economic Community of West African States [hereinafter ECOWAS] military operation in Liberia. See UN Security Council [hereinafter SC] Resolution 788, UN SCOR, 3138^th Mtg. at 2, UN Doc. S/RES/788 ( 1992). See also Levitt, J., “Humanitarian Intervention by Regional Actors in Internal Conlicts: The Cases of ECOWAS in Liberia and Sierra Leone” (1998) 12 Temp. Int’l and Comp. L.J. 333 at 347.Google Scholar

¹²⁷ Wippman, D., “The Evolution and Implementation of Minority Rights” (1997) 66 Ford. L. R. 597 at 600, 604;Google Scholar Kamminga, supra note 61 at 116-17; Schachter, supra note 35 at 328-29.

¹²⁸ Ibid. See also Special Commission on the Racial Situation in the Union of South Africa, UN Doc. A/2505 at 16-22 (1953).

¹²⁹ Akhavan, supra note 11 at 237.

¹³⁰ Rodley, N. S., “Collective Intervention to Protect Human Rights and Civilian Populations: The Legal Framework” in Rodley, N. S., ed., To Loose the Bands of Wickedness: International Intervention in Defence of Human Rights (London: Brassey’s, 1992) at 14, 28, 40;Google Scholar Kartashkin, V., “Human Rights and Humanitarian Intervention” in Fisler-Damrosch, L. and Scheffer, D. J., Law and Force in the NewInternational Order (Boulder: Westview Press, 1991) at 218;Google Scholar Gordon, supra note 18 at 569-70.

¹³¹ See “Security Council Summit Declaration of 1992,” quoted in Abiew, supra note 102 at 143-44. See also An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, Report by the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, January 31, 1992, UN Doc. A/47/277-S/241 I 1 at paras. 16, 18 (1992).

¹³² Franck, “Fairness,” supra note 117 at 215 ff.

¹³³ 1Lailach, M., Die Wahrung des Weltfriedens und der internationalen Sicherheit als Aufgabe des Sicherheitsrates des Vereinten Nationen (Berlin: Duncker and Humblot, 1998) at 206, 237, 307;Google Scholar Corten, O. and Klein, P., “L’Autorisation de Recourir à la Force à des Fins Humanitaires: Droit d“Ingérence ou Retour aux Sources?” (1993) 4:4 Eur. J. Int’l L. 506 at 520-21Google Scholar and references therein; Bettati, M., “Un Droit d’Ingérence” (1991) 95 Rev. D.I.P. 639 at 661 ff.; B.F. Burmester, “On Humanitarian Intervention: The New World Order and Wars to Preserve Human Rights” (1994) Utah L. Rev. 269 at 273-74;Google Scholar Tesón, supra note 74 at 341-42; Abiew, supra note 102 at 153; Evans, C. E., “The Concept of ’Threat to Peace’ and Humanitarian Concerns: Probing the Limits of Chapter VII of the UN Charter” (1995) 5 Transnat’l L. and Contemporary Problems 213 at 223 ff;Google Scholar Fielding, L. E., “Taking a Closer Look at Threats to Peace: The Power of the Security Council to Address Humanitarian Crises” (1996) 73 U. Detroit Mercy L. Rev. 551 at 557 ff.Google Scholar

¹³⁴ UN SC Resolution 232, UN SCOR, 21st Sess., 1340^th mtg. at 7, UN Doc. S/INF.21/Rev.1 (1966). On the question of southern Rhodesia, see generally Gowlland-Debbas, V., Collective Responses to Illegal Acts in International Law — United Nations Action in the Question of Southern Rhodesia (Dordrecht: M. Nijhoff, 1990).Google Scholar

¹³⁵ UN SC Resolution 232, supra note 134 at 3.

¹³⁶ Kooijmans, P. H., “The Enlargement of the Concept “Threat to the Peace” in Dupuy, R.-J., ed., Peace-keeping and Peace-bulding: The Development of the Role of the Security Council, Workshop at the Hague Academy of International Law (Dordrecht: Martinus Nijhoff, 1992) at 113.Google Scholar For a criticism of the Security Council’s determination as constituting an interference in internal affairs, see Fenwick, C. G., “When Is There a Threat to the Peace? Rhodesia” (1967) 61 A.J.I.L. 753 at 753-55.Google Scholar

¹³⁷ UN SC Resolution 688, UN SCOR, 46^th Sess., 2982^nd mtg. at para. 1, UN Doc. S/Res/688 (1991).

¹³⁸ Ibid. at preamble. See also Franck, T. M., “The Security Council and ’Threats to the Peace’: Some Remarks on Remarkable Recent Developments” in Dupuy, R.-J., supra note 136 at 102.Google Scholar

¹³⁹ UN SC Resolution 688, supra note 137.

¹⁴⁰ Resolution 688 did not explicitly refer to the Kurds as a people, nationality, group, or minority, but instead made reference to “the Iraqi population in many parts of Iraq, including most recently in Kurdish-populated areas.” The observation has been made that in doing this, “the Security Council thus failed to highlight the measures of the Iraqi government aimed against the Kurds as peoples, measures which many considered were tantamount to genocidal actions.” See on this point Abiew, supra note 102 at 149; Delbrück, supra note 32 at 895. See also Pease and Forsythe, supra note 73 at 290; Corten, O. and Klein, P., “L’Assistance Humanitaire Face à la Souveraineté des États” (1992) Rev. Trim. Dr. H. 343;Google Scholar Akhavan, P., “Lessons from Iraqi Kurdistan: Self-determination and Humanitarian Intervention against Genocide” (1993) 11 N.Q.H.R. 41.Google Scholar

¹⁴¹ Kooijmans, supra note 136 at 114; Delbrück, J., “A More Effective International Law or a New ’World Law?’— Some Aspects of the Development of International Law in a Changing International System” (1993) 68 Indiana L. J. 705 at 709;Google Scholar Bourloyannis, C., “The Security Council of the United Nations and the Implementation of International Humanitarian Law” (1992) 20 Denv. J. Int’l L. & Pol’y 335 at 352.Google Scholar

¹⁴² Malanczuk, supra note 32 at 17-18; Gordon, R., “Humanitarian Intervention by the United Nations: Iraq, Somalia and Haiti” (1996) 31 (1) Tex. Int’l L.J. 43 at 49.Google Scholar

¹⁴³ Tesón, supra note 74 at 344.

¹⁴⁴ Ibid. See also Ben Achour, supra note 44 at 406-9.

¹⁴⁵ See, for example, the statements made by the representatives of Yemen, Zimbabwe, and Cuba to the Security Council. UN SCOR, 46^th Sess., 2982th mtg., at 27-32, 13-15, UN Doc. S/PV.2982 (1991).

¹⁴⁶ See the statements made by the representatives of Yemen, Zimbabwe, and France, ibid. at 6-8, 13-15.

¹⁴⁷ Gordon, supra note 142 at 49; Malanczuk, supra note 32 at 18.

¹⁴⁸ According to Franck, the Security Council, in Resolution 688, endorsed the view that when human rights violations reach a certain threshold of ferocity, the crisis may be characterized as a threat to the peace and placed under UN supervision. See Franck, supra note 138 at 103; See also Dupuy, P.-M., “Après la Guerre du Golfe” (1991) 95 Rev. D.I.P. 621 at 628;Google Scholar Malanczuk, P., “The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War” (1991) 2 (2) Eur. J. Int’l L. 114;Google Scholar Bettati, supra note 133 at 662.

¹⁴⁹ See Johansen, R. C., “Reforming the United Nations to Eliminate War” (1994) 4 Transnat’l L. Contemporary Problems 455 at 477-78Google Scholar (suggesting that a preventive force might have been effective if one had been deployed on the Iraq-Kuwait border in 1990).

¹⁵⁰ UN SC Resolution 713, UN SCOR, 46^th Sess., 3009th mtg., UN Doc. S/RES/713 (1991).

¹⁵¹ Kooijmans, supra note 136 at 116; Franck, supra note 138 at 104.

¹⁵² See Tesón, supra note 74 at 366, and particularly n. 180 and references therein.

¹⁵³ UN SC Resolution 770, UN SCOR, 47th Sess., 3106th mtg. at 2, UN Doc. S/RES/770 ( 1992), recognizing that “the situation in Bosnia and Herzegovina and the obstacles to the delivery of humanitarian assistance constitute a threat to international peace and security and that the provision of humanitarian assistance … is an important element … to restore international peace and security in the area.”

¹⁵⁴ Abiew, supra note 102 at 180, 186

¹⁵⁵ See, for example, the statements by the delegates of Zimbabwe, Ecuador, and India, Provisional Verbatim Record of the Three Thousand One Hundred and Sixth Meeting, UN SCOR, 47^th Sess., plen. mtg., at 9-17, UN Doc. S/PV.3106 ( 1992), and Provisional Verbatim Record of the Three Thousand One Hundred and Ninety-First Meeting, UN SCOR, 48^th Sess., plen. Mtg., at 19-21, UN Doc. S/PV.3191 ( 1993), referring to statements made by delegates from the US, France, Cape Verde, and Pakistan, which maintained that the Security Council must use its authority to authorize states to use force and put a stop to the tragedy of the Bosnian population. See on this point Abiew, supra note 102 at 186-89.

¹⁵⁶ UN SC Resolution 808, UN SCOR, 3175^th mtg., at 2, UN Doc. S/RES/808 (1993).

¹⁵⁷ UN SC Resolution 733, UN SCOR, 47^th Sess., 3039th mtg., UN Doc. S/RES/733 (1992). See on this point Evans, supra note 133 at 228-30; Kooijmans, supra note 136 at 115.

¹⁵⁸ UN SC Resolution 794, UN SCOR, 47^th Sess., 3145 mtg. at 2-3, para. 10, UN Doc. S/Res/794 (1992). For a thoughtful analysis of this resolution, see Freudenschuß, H., “Between Unilateralism and Collective Security” (1994) 5 Eur. J. Int’l. L. 492 at 512-15.Google Scholar

¹⁵⁹ UN SC Resolution 794, supra note 158 at 1.

¹⁶⁰ Tesón, supra note 74 at 351; see also Lillich, supra note 124 at 7-8; Crawford, S. M., “UN Humanitarian Intervention in Somalia” (1993) 3 Transnat’l L. and Contemporary Problems 273 at 291.Google Scholar

¹⁶¹ See discussions within the Security Council regarding Resolution 794, UN Doc. S/PV.3145 at 17 (China) and 51 (India); see also Wheeler, N. and Morris, V., “Humanitarian Intervention and State Practice at the End of the Cold War” in Fawn, R., ed., International Society after the Cold War: Anarchy and Order Reconsidered (London: Macmillan Press, 1996) at 151.Google Scholar

¹⁶² McDougal and Reisman, supra note 32 at 12-13.

¹⁶³ Certain Expenses case, supra note 34 at 182, 186 (separate opinion of Judge Sir Percy Spender).

¹⁶⁴ Namibia case, supra note 38 at 52. For a view that opposes this broad interpretation, see the dissenting opinion of Judge Fitzmaurice in the Namibia case, ibid. at 293. However, the court’s position has found wide doctrinal support; see de Aréchaga, E. Jimenez, “International Law in the Past Third of a Century” (1978) 159–I Rec. des Cours 1 at 124;Google Scholar Higgins, R., “The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter?” (1972) 21 I.C.L.Q. at 270;CrossRefGoogle Scholar Weissberg, G., “The Role of the International Court of Justice in the United Nations System: The First Quarter Century” in Gross, L., ed., The Future of the International Court of Justice, vol. 1 (Dobbs Ferry, NY: Oceana Publications, 1976) at 131, 142.Google Scholar

¹⁶⁵ Tesón, supra note 74 at 353-54.

¹⁶⁶ Ramlogan, R., “Towards a New Vision of World Security: The United Nations Security Council and the Lessons of Somalia” (1993) 16 Houst. J. Int’l L. 213 at 236-38;Google Scholar Malanczuk, supra note 32 at 24; Gordon, supra note 142 at 52.

¹⁶⁷ UN SC Resolution 940, UN SCOR, 3413^th mtg. at 2, UN Doc. S/RES/940 (1994).

¹⁶⁸ Ibid.

¹⁶⁹ Lillich, supra note 124 at 10; Tesón, supra note 74 at 358.

¹⁷⁰ Tesón, supra note 74 at 359-60. For a criticism of this resolution, see Falk, R., “The Haiti Intervention: A Dangerous World Order Precedent for the United Nations” (1995) 36 Harv. Int’l L. J. 341.Google Scholar

¹⁷¹ See generally, Corten, O., “La résolution 940 du Conseil de sécurité autorisant une intervention militaire en Haïti: L’émergence d’un principe de légitimité démocratique en droit international?” (1995) 6(1) Eur. J. Int’l L. 116.CrossRefGoogle Scholar

¹⁷² UN SC Resolution 918, UN SCOR, 49^th Sess., 3377^th mtg., UN Doc. S/RES/918 (1994).

¹⁷³ It is to be noted that, in its initial response to the potential genocide, the Security Council actually authorized a reduction in the forces of UNAMIR, in service in the country since late the previous year. See on this point UN Doc. S/RES/912 (1994) at para. 8 in fine; Ougergouz, F., “La tragédie rwandaise du printemps 1994: Quelques considérations sur les premières réactions de l’Organisation des Nations Unies” (1996) 100 Rev. D.I.P. 149.Google Scholar

¹⁷⁴ Evans, supra note 133 at 230, 234.

¹⁷⁵ See UN SCOR, 49^th Sess., 3377^th mtg., UN Doc. S/PV. 3377 (1994). At the time that the Security Council adopted Resolution 918 in May 1994, it was reported to the council that an estimated 250,000 to 500,000 Rwandan men, women, and children had already been killed. See United Nations, Report of the Secretary-General on the Situation in Rwanda, UN SCOR, 49^th Sess., at 2, UN Doc. S/1994/640 (1994).

¹⁷⁶ See United Nations, Draft Resolution Concerning the Deployment of a Temporary Multinational Humanitarian Operation in Rwanda, UN SCOR, 49^th Sess., UN Doc. S/1994/737 (1994); UN SC Resolution 929, UN SCOR, 49^th Sess., 3392 mtg., UN Doc. S/RES/929 (1994).

¹⁷⁷ See also SC Resolution 955, UN SCOR, 49^th Sess., UN Doc. S/1994/955 ( 1944), reprinted in 33 I.L.M. 1598, where the Security Council considered that “genocide and other systematic, widespread and flagrant violations of international humanitarian law” constitute a threat to the peace and justified the establishment of the International Tribunal for Rwanda for the purpose of prosecuting persons responsible for these crimes.

¹⁷⁸ In 1996, the Security Council took an even more proactive step towards humanitarian intervention. In November 1996, a civil war in Zaire forced over one million Rwandan refugees and Zairian civilians into flight. The council responded to the crisis by authorizing the formation of a military force to create “safe corridors” for the delivery of humanitarian aid to the refugees. The military force was officially justiied by the humanitarian crisis, rather than by the threat to international peace portended by the predicted imminent disintegration of the largest state in Central Africa. See UN SC Resolution 1078, UN SCOR, 49^th Sess., 3710^th mtg., preamble and para. 7-8, UN Doc. S/RES/1078 (1996).

¹⁷⁹ Reisman, W. M., “Peacemaking” (1993) 18 Yale J. Int’l L. 415 at 418.Google Scholar

¹⁸⁰ In its advisory opinion concerning the Certain Expenses case, supra note 34 at 168, the ICJ stated that a presumption is seen to exist for actions appropriate for the fulilment of one of the stated purposes of the United Nations not being ultra vires. It is argued here that this statement is also applicable to those situations where the organization takes action that warrants the assertion that it was appropriate for the fulilment of the goal to prevent genocide which, although not expressly stated in the UN Charter, may be seen as fundamental to the raison d’être of the United Nations.

¹⁸¹ Simma, B., “From Bilateralism to Community Interest in International Law” (1994) 250 Rec des Cours, 229 at 274-77Google Scholar; Bothe, M., “Les Limites du Pouvoir du Conseil de Sécurité” in Dupuy, R.-J., supra note 136 at 67 ff.Google Scholar

¹⁸² See on this point J. Delbrück, “Article 24” in Simma, supra note 36 at 403-6; Tesón, supra note 74 at 354. According to Brownlie, a determination of a threat to the peace as a basis for action necessary to remove the threat cannot be used as a basis for action that (if the evidence so indicates) is for collateral and independent purposes, such as the overthrow of a government or the partition of a state. See Brownlie, I., “International Law at the Fiftieth Anniversary of the United Nations: General Course in Public International Law” (1995) 255 Rec. des Cours. 9 at 218.Google Scholar It is interesting to note that the Security Council has also been considered to possess the necessary powers under Article 24(1) of the UN Charter to fulil its tasks in the maintenance of peace (and become active in cases of gross human rights violations) beyond the enumerated powers in Article 24( 2 ), second sentence. See Delbrück, ibid. at 406.

¹⁸³ Jorgensen, N. H. B., The Responsibility of States for International Crimes (New York and Oxford: Oxford University Press, 2000) at 135–37.CrossRefGoogle Scholar

¹⁸⁴ United Nations, General Assembly, 6^th Committee, Genocide — Draft Convention and Report of the Economic and Social Council, Union of Soviet Socialist Republics: Amendments to the Draft Convention (E/796) at 3, UN Doc. A/C.6/215/Rev. 1 ( 1948) [emphasis added]. See also the response of the Soviet delegate Mr. Morozov to the explanation provided by the chair of the Ad Hoc Committee, the American John Maktos, regarding the rejection of the Soviet proposal requiring Security Council referral, to the effect that “[a]ny act of genocide was always a threat to international peace and security and as such should be dealt with under Chapters VI and VII of the Charter ... Chapters VI and VII of the Charter provided means for the prevention and punishment of genocide, means far more concrete and effective than anything possible in the sphere of international jurisdiction,” UN Doc. A/C.6/SR.101. In the Ad Hoc Committee, Poland supported the Soviet Proposal, stating that “the convention should stipulate that the crime of genocide leads to international friction and endangers the maintenance of peace and security and that that could make the intervention of the Security Council necessary,” UN Doc. E/AC.25/SR.8 at 17.

¹⁸⁵ See the statements of the US delegate, Mr. Maktos, and the Belgian delegate, Mr. Kaeckenbeeck: UN GAOR, 6^th Comm., 3^rd Sess., pt. 1, 101st mtg., at 410, 412-413, UN Doc. A/C.6/SR.61-140 (1948). It is to be noted that Article 99 of the UN Charter is itself worded in permissive terms and does not require the secretary-general to inform the Security Council of every potential conlict. Thus, under the present system, the council would not have the occasion to discuss many non-conventional threats to the peace, specifically those dealing with humanitarian disasters.

¹⁸⁶ Bassiouni, M. C., “International Crimes: Jus Cogens and Obligatio Erga Omnes ” (1996) 59 Law & Contemp. Probs. 63 at 70;CrossRefGoogle Scholar Robinson, supra note 89 at 90; Drost, supra note 89 at 105-6.

¹⁸⁷ For such a state-centric view, see O’Connell, M. E., “Continuing Limits on UN Intervention in Civil War” (1992) 67 Indiana L. J. 903 at 911.Google Scholar

¹⁸⁸ Abi-Saab, G. M., “Whither the International Community?” (1998) 9(2) Eur. J. Int’l L. 248 at 264.CrossRefGoogle Scholar

¹⁸⁹ Schachter, O., “The United Nations Response to a Changing World: International Law Implications — Commentary” (1992) 86 Am. Soc. Int’l L. Proc. at 320.Google Scholar

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¹⁹¹ Rajan, supra note 69 at 142-60 (citing the example of the UN intervention in Congo as the only salient example of action taken on this premise). See also generally Abi-Saab, G. M., The United Nations Operation in the Congo, 1960-1964 (Oxford: Oxford University Press, 1978).Google Scholar

¹⁹² Caron, D., “The Legitimacy of the Collective Authority of the Security Council” (1993) 87 A.J.I.L. 552 at 559-60.Google Scholar

¹⁹³ Draft Articles on the Draft Code of Crimes Against Peace and Security of Mankind, International Law Commission [hereinafter ILC] Report, 1996, Chapter II, art. 17, accessible at <http://wvww.un.org/law/ilc/reports/ 1996/chap02.htm> (date accessed: April 18, 2001 ) [hereinafter Draft Code of Crimes against Peace and Security of Mankind]. In its commentary (3) to Article 17, the ILC noted that “the tragic events in Rwanda clearly demonstrated that the crime of genocide, even when committed primarily in the territory of a single State, could have serious consequences for international peace and security and, thus, conirmed the appropriateness of including this crime in the present Code.” See Report of the International Law Commission on the Work of Its Forty-Eight Session, UN Doc. A/ 51/10, reprinted in Yearbook of the International Law Commission 1996, vol. 2, Part 2, New York, 1998, UN Doc. A/CN.4/SER.A/1996/Add.1 (Part 2). It is also interesting to note that according to the Working Paper Submitted to the Commission on Human Rights by Stanislav Chernichenko on the Definition of Gross and Large-Scale Violations of Human Rights as an International Crime, UN Doc. E/CN.4/Sub.2/1993/10 at 7, international crimes of states such as genocide (not to be confused with “crimes under international law,” which also comprise genocide but refer to the responsibility of individuals) are defined as “ the most serious violations of international law … constituting a threat to the entire community,” without presupposing any speciic transboundary element. See also Ferencz, B. B., New Legal Foundations for Global Survival: Security through the Security Council (New York: Oceana Publications, 1994) at 272–75.Google Scholar It is to be noted that the term “international crimes” does not appear in the text of the second reading of Part 2 of the Draft Articles on State Responsibility of the International Law Commission because of the many conceptual problems that arose and the lack of general consensus among the members of the Commission on the subject. See on this point First Report on State Responsibility by Mr. James Crawford, Special Rapporteur, UN Doc. ILC, 50^th Sess., UN Doc. A/CN.4/490/Add. 1 (1 May 1998), at 9-10, paras. 97 ff.

¹⁹⁴ Paust, J. J. et al., eds., International Criminal Law: Cases and Materials (Durham, NC: Carolina Academic Press, 1996) at 18 Google Scholar (citing Bassiouni, M. C., “An Appraisal of the Growth and Developing Trends of International Criminal Law” (1974) 45 Rev. I.D.P. 405 at 406).Google Scholar According to Byers, if states have accepted the idea of universal jurisdiction in respect of war crimes, crimes against humanity, and genocide, regardless of where they occur and the nationality of the perpetrators, they have done so because these activities pose a threat to each and every state, thus justifying a global extension of the principle of jurisdiction to all areas not covered by another state’s jurisdiction. See Byers, M., Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999) at 64.CrossRefGoogle Scholar It is submitted that a similar persuasive argument can be made with respect to the prevention of impending genocide. It is to be noted, however, that the argument made in this article is not to the effect that genocide must always be deemed a threat to international peace and security, within the meaning of Chapter VII of the UN Charter, but is rather a more nuanced one.

¹⁹⁵ Bruun, supra note 190 at 215.

¹⁹⁶ Waldock, C. H. M., “The Regulation of the Use of Force by Individual States in International Law” (1952–II) 81 Rec. des Cours 455 at 492;Google Scholar Brownlie, I., International Law and the Use of Force by States (Oxford: Clarendon Press, 1963); Scheffer, supra note 72 at 264.CrossRefGoogle Scholar

¹⁹⁷ Peck, C., The United Nations as a Dispute Settlement System: Improving Mechanisms for the Prevention and Resolution of Conflict (The Hague: Kluwer Law International, 1996) at 16–17.Google Scholar

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¹⁹⁹ Note by the Secretary-General, Joint Inspection Unit: Strengthening the United Nations System Capacity for Conlict Prevention, UN GAOR, 52^nd Sess., Agenda Items 10 and 120 at 3, UN Doc. A/52/184 (1997); Boutros-Ghali, B., “Beyond Peacekeeping” (1992) 25 N.YU.J. Int’l L. & Pol. 113 at 119.Google Scholar