RESEARCH CONTEXT

Since the adoption of the Genocide Convention in 1948 until the early 1990s, this Convention has been idle. The response of the world on it has been absent. Moreover, even in the 1990s, the pace in the response on it was very slow. The content of the obligation to prevent genocide was largely neglected. This is linked to the fact that the concept of prevention itself is not clarified in the Genocide Convention. Not only the meaning of this concept of prevention is not clarified in the Genocide Convention, but also there is not much indication on the content of this concept in international law in general. The literature has not done much to fill that gap either. In fact, for many years, no legal research has been undertaken on the obligation to prevent genocide enshrined in the Genocide Convention and on prevention itself. Most academic research on the prevention of genocide has been undertaken by historians, philosophers, and social scientists. The latter have rightly shown the necessity to prevent genocide from the perspectives of their disciplines, but of course they could not suggest concrete legal measures. Later international law research on the prevention of genocide has rather concentrated on the late stages in the process to genocide, i.e when acts of genocide are or have been committed, leaving aside the earlier stages in the process to genocide. Even at those late stages, such research has suffered from an acute lack of concrete measures to put an end to genocide. Moreover, even supposing that measures were there to put an end to genocide, the fact that they intervene at late stages of the process to genocide makes the aim of prevention not only difficult to be achieved, but also the spirit of prevention loses its meaning.

Another factor that has contributed to the lack of clarity about the prevention of genocide and the legal obligation thereof is that for very long, there have been not many legal proceedings related to it before competent courts. Except for the 1951 ICJ advisory opinion on the issue of reservations, it was only until the 2000s that there was the first ICJ decision related to the obligation to prevent genocide.

INTRODUCTION

Many challenges have been identified in the three previous chapters with regard to the prevention of genocide by territorial states, non-territorial states and the UN. This chapter addresses the question whether and to what extent this relatively new concept is a (new) means to the prevention of genocide. It does not look at this concept from all perspectives nor does it enter in the whole debate that has surrounded its legality, legitimacy and implementation.

It proceeds in four sections. The first section gives a brief summary of the background and evolution of the concept of the responsibility to protect. While the second section considers the responsibility to protect by territorial states in comparison with the obligation to prevent genocide by territorial states at the three levels of prevention, the third section discusses the responsibility to protect by nonterritorial states and by the UN, in comparison with the obligation to prevent genocide by them at the three levels. The fourth and final section discusses thechallenges of the R2P vis-à-vis the prevention of genocide.

BACKGROUND AND EVOLUTION OF THE CONCEPT OF THE R2P

Given the manifest failure to prevent genocide in Rwanda and in Bosnia, the international community sought to build a new international consensus on how to respond in the face of massive violations of human rights and humanitarian law. The Canadian Prime Minister Jean Pierre Chrétien announced in the 2000 UN General Assembly the establishment of an International Commission on Intervention and State Sovereignty (ICISS). Launched in September 2000, the International Commission on Intervention and State Sovereignty (ICISS) was expected to come up with new ways of reconciling the seemingly irreconcilable notions of intervention and state sovereignty.

This commission came up with a new concept: the responsibility to protect (R2P). In explaining this concept, the commission noted that “the responsibility to protect means the “responsibility to prevent”, the “responsibility to react,” and the “responsibility to rebuild”. This concept was later referred to by the UN High- Panel on Threats, Challenges and Change in its report of 2004: A more Secure world: Our Shared Responsibility which emphasized that:

SUMMARY

The main question that this work has treated is what the obligation to prevent genocide in international law entails to its bearers. This implied also the question about who those bearers are. The aim was to examine whether and to what extent international law should be understood/interpreted/developed in a way that it allows or enables a more effective prevention of genocide in order to achieve the goal for which the laws on the prohibition of genocide have been put in place. It thus provided an assessment of the international legal regime on the prevention of genocide and on what that obligation requires its bearers to do, when, where, and how, while at the same time identifying where there are shortcomings and suggesting how things can be improved. The context, research question, objective, sources and structure of the work have been given in chapter I on the general introduction.

Before going far in those legal questions, a primary question related to the main one needed an answer. This is the question what prevention itself means. Being a word used in different fields, prevention is elaborated on in chapter II in order to explain its meaning and structure in some of those fields, namely public health, non-proliferation of nuclear weapons, criminology, environmental law and torture. For all those fields, prevention means to avert harm from occurring. It requires taking appropriate preventive measures at the right moment. For some fields like public health and criminology, the structure of prevention is explicitly divided in different temporal divisions which are the primary, secondary and tertiary levels. The primary level consists of the period before the existence of signs of harm. While the secondary level is the period when there are symptoms/signs of harm, the tertiary level is when the harm is occurring. For each level, there are preventive measures tailored to it in order to avoid that the situation becomes worse. For those other fields which do not use this temporal division as such, it has been shown from the nature of the preventive measures needed that these levels are also implied. In Chapter III, the question becomes to know what that meaning of prevention and structure means to the prevention of genocide (i.e. whether it can apply to genocide as well.

INTRODUCTION

The three previous chapters mainly discussed the obligation to prevent genocide in international law with a specific focus on what states are obligated to do in preventing genocide. Because of the nature of this obligation and the actions needed at different levels of prevention as well as the challenges involved, the need to see the role of the United Nations in the prevention of genocide became pressing at several occasions. This is also because the UN has been mentioned in the Genocide Convention. Indeed, while article I of the Genocide Convention provides for the obligation vis-à-vis contracting parties to prevent and punish genocide, article VIII provides for recourse to the UN for preventive actions. This article states 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”.

An analysis of the language used in these two articles read in the context of the Genocide Convention as a whole as well as other related sources of international law is very essential in order to know whether the United Nations has an obligation to prevent genocide and in the affirmative to know the actions it should take in complying with that obligation. Other questions linked to this need to be answered as well. The first is whether the obligation to prevent genocide by the UN (if any) is subjected to prior information by contracting states about the risk, imminence or occurrence of genocide. The second is related to the territorial scope of that obligation (if any). The third is related to the organs of the UN which are competent to take action to prevent genocide at each level and the actions they may and should take.

INTRODUCTION

In the previous chapter, it was concluded from the fields examined that prevention is a continuous process that is aimed at avoiding the occurrence of something harmful by tackling the causes of the harm prior to it and at each phase of the process to its occurrence and after. It is now time to examine in this chapter whether this understanding is the same for the prevention of genocide and if so to show what may be needed to destabilize the process to genocide in order to prevent genocide. In fact, it would be a capital mistake to try to discuss the prevention of genocide before showing the process through which it passes before it is committed. Taking into account the sources and contributions from other disciplines than law, it is essential to determine the existence of factors in the process to genocide. In doing so, the theories will be confronted with the reality of genocide on the ground, in order to leave the confinement in the abstract and understand what can (or is to) be done concretely to prevent genocide. This means that the factors as well as phases in the process to genocide will be taken into consideration in attempting to show when the prevention of genocide is needed.

As generally known, genocide is not something that happens overnight. For genocide to happen there is a number of factors that precede and make possible the actual genocide. They create the conditions or the opportunity for genocide to occur. Hence, for it to be prevented, one needs first to understand the whole process to genocide from the early stage until the end. This is not to say however that this chapter will be able to give a linear process identical to all genocides, but with some examples, the explanation on common factors and phases of genocide will serve as a good basis to understand the phenomenon of its prevention. For this reason, the first section explains the factors in the process to genocide. The second section summarises the phases in the process to genocide (confronting them to the realities on the ground).

INTRODUCTION

This chapter will address the question what the obligation to prevent genocide means to non-territorial states. Are they obligated to prevent genocide in territorial states? If so, from what moment are they entitled and/or required to do so? What is the impact of the geographic distance on prevention and what measures can the non-territorial states legally take?

This chapter first discusses the territorial scope of the obligation to prevent genocide (section one) and the capacity of non-territorial states to prevent genocide outside their territories (section two). Regardless of the conclusions in these sections, the three other sections will examine what international law permits and/or requires to non-territorial states to prevent genocide at the primary level (section 3), the secondary level (section 4) and at the tertiary level (section 5). The infl uence as one of the available means of non-territorial states to prevent genocide at all levels is also discussed (section 6). The final section (7) discusses the issue of coordination of the prevention of genocide at all levels. Except for section one and seven, for other sections the discussion will include an examination of the capacity of those non-territorial states to prevent genocide outside their territories.

THE TERRITORIAL SCOPE OF THE OBLIGATION TO PREVENT GENOCIDE

This section first confronts the obligation to prevent genocide with the principle of state sovereignty. It also discusses the ICJ ruling on the territorial scope of the obligation to prevent genocide. In both subsections, the aim is to answer the question whether state sovereignty may (not) constitute a barrier to the prevention of genocide by non-territorial states.

Confronting the obligation to prevent genocide with state sovereignty

Sovereignty is considered as one of the central pillars of international law. Numerous scholars have written about its origin and scope. Apparently, there is no disagreement on the fact that the present foundations of international law with regard to sovereignty were shaped by agreements concluded by European states as part of the Treaty of Westphalia in 1648. After almost 30 years of war, the supremacy of the sovereign authority of the state was established within a system of independent and equal units, as a way of establishing peace and order in Europe.

INTRODUCTION

Law as a discipline is not a closed vehicle of ideas and thoughts. It is conceived and written in connection with other disciplines. This means that it cannot stand alone and it therefore needs other disciplines for not only its formulation and understanding but also its certainty. As simple example, law does not have its own language and the rules are formulated in different languages which are also used in other disciplines and one needs to know what the terms used mean from their ordinary or contextual meaning to understand their scope.

In this respect, before seeking to understand what prevention of genocide means in international law, this chapter explains that concept of prevention from different fields. Indeed, the understanding of the meaning of the concept of prevention and actions to be taken as well as the time to take them will help to understand what the prevention of genocide might entail and when actions are needed and can be taken. Thus, the understanding of this concept from other fields will be useful to the thinking or conceptualization of prevention of genocide. In other words, drawing from this chapter will help to understand and clarify what the prevention of genocide may entail or what it ought to entail. It should be understood however that the aim of this chapter is not to develop all fields that use prevention but rather to provide some examples that help to understand the meaning and the scope of the concept of prevention in order to see how far these theories can shape the methods and techniques useful for the prevention of genocide. This chapter will be limited to five different fields which are prevention in public health, prevention of the proliferation of nuclear weapons, prevention in criminology, prevention in international environmental law and the prevention of torture. The choice of these five fields is mainly dictated by the relatively frequent use of prevention and the development of that concept as it will be demonstrated in each of them.

PREVENTION IN PUBLIC HEALTH

It is believed that the concept of prevention was first developed in the field of public health.

While the procedure by which parents can give consent, or have their consent dispensed with, is of great importance in protecting the rights of children in intercountry adoption, of equal importance is the right of the child himself or herself to be involved in the decision-making process, and to be adequately represented when doing so.

The participation of the child in the adoption process is important for three key reasons. First, it is of substantive value, as it enables decision-makers to come to better decisions. Without hearing the views of the child where it is possible to do so, and taking them into consideration, it is not possible to determine the content of the child's best interests. As such, there can be no correct application of the welfare principle under article 3 UNCRC if the child's right to participate in the decision-making process is not respected.

Second, hearing the voice of the child has procedural value. As Baroness Hale has emphasised, where the child is heard, he or she “will feel respected, valued and involved”. The child will be more likely to respect a decision where this is the case, which is of particular importance with respect to adoption. The success of an adoption depends heavily on the attitude of the child, and his or her willingness to integrate into a new environment. This is particularly the case in intercountry adoption, where the child will be integrated not only into a new family, but also into a new country, culture and society. Where the child is unhappy with the decision taken, he or she may cause difficulties in the placement, and pose a bar to its success. Even where the decision taken is against the child's wishes, the participation of the child can help him or her understand the process, and why that particular decision has been made.

Third, there is symbolic value attached to the participation of the child. The recognition of the autonomy of children was one of the most important features of the UNCRC, which will be discussed in more detail below.

While the first sections of this book have considered how to determine whether a child is eligible and suited to be placed in intercountry adoption, and the necessary consents before this can occur, this chapter will concentrate on the position of adoptive parents. Despite this change of focus, the guiding principle for analysis continues to be the rights of the child, and how appropriate selection and preparation of, and support for, prospective adoptive parents can promote this.

This chapter will be divided into three parts. The first will address whether there exists a “right to adoption”, both from the point of view of the prospective adoptive parents, and from the view of the child. It will analyse the factors driving intercountry adoption, and whether there is an obligation on either sending or receiving states to practise intercountry adoption.

The second part of this chapter will focus on the criteria used to determine whether a prospective adoptive parent is eligible and suitable to adopt. Determining who should be eligible to adopt has, as Jane Lewis put it, “always been something of a litmus test in respect of much larger issues: what ‘the family’ should look like”. Societal preconceptions concerning the ability of certain groups to bring up children are laid bare in adoption legislation, and the criteria of age, marital status and sexual orientation will be discussed.

Finally, the support provided to prospective adoptive parents will be analysed. This will consider pre-adoption counselling and preparation, and the establishment of a relationship between the parents and child before the adoption order, as well as post-adoption monitoring and the services provided to the family to ensure that the adoptive placement thrives.

ADOPTIVE PARENTS AND THE RIGHTS OF CHILDREN: COMPLEMENTARY OR CONTRADICTORY?

INTERCOUNTRY ADOPTION: AN EMERGING MARKET

The inception of intercountry adoption came from the need to care for children in the aftermath of global conflict; however, these roots have been long left behind. Its evolution into an industry capable of producing large profits begs the question: to what extent does intercountry adoption continue to address the needs of children, and to what extent is it now driven by the desires of prospective adoptive parents?

One of the most serious problems that arises in relation to intercountry adoption, and the one that is most publicised by the media, is that of the improper inducement of consent from birth parents. Wherever intercountry adoption has occurred, there have been allegations of the buying of children, of birth parents being deceived, and of improper practices on the part of those facilitating the adoption process.

Although these problems are not confined to intercountry adoption, they generally do not arise in relation to domestic transactions, in large part because of the financial incentives that are associated with the intercountry adoption system. This section will look at the requirements for valid consent under the international instruments, and the practical problems that have arisen in this regard. In doing so, it will use examples from various countries involved in intercountry adoption, including non-European countries. However, the purpose of this chapter is not to enumerate all the scandals that have arisen concerning intercountry adoption in the last 25 years, nor to claim that all systems suffer from the same defects. It will bring attention to these incidents only to better understand the practices that the law must consider when regulating this area in Europe.

INTERNATIONAL INSTRUMENTS

The improper inducement of consent in relation to adoption is not explicitly considered under the UNCRC, with article 21 only covering improper gain by intermediaries, which will be discussed in more detail below. However, article 35 requires that member states take “national, bilateral and multilateral measures to prevent the abduction of, sale of, or traffic in children for any purpose or in any form”, which has been taken up in the Optional Protocol to the UNCRC on the Sale of Children, Child Prostitution and Child Pornography. The Optional Protocol has 163 parties, including all European states save the Czech Republic, Ireland and Russia, who have signed but not ratified the Protocol.

This Protocol, which specifically refers to the Hague Convention on Intercountry Adoption, defines the sale of children as “any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration”, and includes illegal adoption.