As acts of violence based on religion or belief may amount to crimes such as genocide, the Genocide Convention is of relevance, as it places duties upon states to prevent and punish this crime. These duties are incorporated in Article I of the Genocide Convention stating that ‘the Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’
The Genocide Convention is clear that the duty to punish refers to prosecuting and punishing the perpetrators for committing the crime of genocide. Article VI provides that:
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
60 Anugrah Kumar, ‘200 Hindu radicals attack Christians at house church in India’ Christian Post (16 January 2022). Available at: https://www.christianpost.com/news/200-hindu-radicals-attack-christians-at-
house-church-in-india.html?clickType=link-most-
popular&utm_source=Bellwether+International&utm_campaign=3ce2e98a17- EMAIL_CAMPAIGN_2022_01_26_05_48&utm_medium=email&utm_term=0_868e8f6235-3ce2e98a17-472713198
61 Open Doors, World Watch List 2022. Available at:
https://www.opendoorsusa.org/christian- persecution/world-watch-list/india/?utm_source=Bellwether+International&utm_campaign=3ce2e98a17- EMAIL_CAMPAIGN_2022_01_26_05_48&utm_medium=email&utm_term=0_868e8f6235-3ce2e98a17-472713198
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The Genocide Convention is silent on how the state parties are to implement their duty to prevent genocide from occurring: it does not prescribe how it should be achieved.62 Article VIII of the Genocide Convention indicates that state parties ‘may call upon the competent organs of the United Nations to take actions to prevent. The jurisprudence of the ICJ is of assistance to clarify the scope of the duty. The ICJ clarifies that triggering the duty to prevent does not have to wait until genocide is already being perpetrated. The ICJ clarifies that:
since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.63
The fact that, according to the ICJ, the duty to prevent is triggered when the state
‘learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’ ultimately means that the state should have effective monitoring mechanisms. Where states do not have such monitoring mechanisms, they may rely on the argument of the lack of relevant knowledge, and so avail themselves of responsibility. This is contrary to the duty to prevent and the spirit of the Genocide Convention.
In order to implement their duty to prevent, states should have in place comprehensive monitoring mechanisms capable of collecting data on situations of concern. Where such domestic mechanisms do not exist, States rely on external bodies, whether international bodies, research centres, NGOs, etc. These come with their own challenges and limitations and are not a substitute for a governmental commitment and plan.
62 ‘Various parameters operate when assessing whether a State has duly discharged the obligation concerned.
The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position is-à-vis the situations and persons facing the danger, or the reality, of genocide.’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 430.
63 Ibid. 431. [emphasis added]
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To assist States in being able to take appropriate action, the UN developed frameworks for the analysis of mass atrocities. In 2011, the Jacob Blaustein Institute for the Advancement of Human Rights, in cooperation with the Office of the UN Special Adviser for the Prevention of Genocide, published the Compilation of Risk Factors and Legal Norms for the Prevention of Genocide (the Compilation), identifying 22 risk factors specific to genocide under two sub-groups: 1) discrimination-related risk factors and 2) risk factors related to violations of the right to life and personal integrity. An analysis of risk factors should help to identify situations posing a serious risk of genocide which in turn should trigger the duty to prevent.
In 2014, the UN Office on Genocide Prevention and the Responsibility to Protect published the UN Framework of Analysis for Atrocity Crimes. It contained a list of 14 risk factors for atrocity crimes and several indicators for each of the risk factors. The eight common risk factors across mass atrocity crimes are: armed conflict or other forms of instability; a record of serious violations of international human rights and humanitarian law; weakness of State structures, motives or incentives; capacity to commit atrocity crimes; absence of mitigating factors; enabling circumstances or preparatory action and triggering factors. In addition, the specific risk factors for genocide are intergroup tensions or patterns of discrimination against protected groups and signs of an intent to destroy in whole or in part a protected group.
Furthermore, it may be argued that to effectively fulfil their duties under the Genocide Convention, states must not only monitor, but also make the interim determination of genocide to inform their decision making. States have engaged with the question of genocide determination differently. For example, as in the case of the Daesh atrocities, the US Administration made the determination of genocide based on its assessments. The Canadian government recognised the atrocities as genocide after the UN Independent International Commission of Inquiry on the Syrian Arab Republic launched its report ‘They Came to Destroy’ which also made such a determination. The Dutch government obtained an independent legal opinion from two groups of experts before making its determination of the case. The legal opinions further confirmed that politicians can deal with the question of genocide determination, as long as such a determination is duly informed by sufficient evidence.64 However, some states such as the United Kingdom
64 Translation of the opinion available at: https://www.worldwatchmonitor.org/2018/01/netherlands-joins-un-security-council-shine-light-genocide/.
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continue to rely on the argument that it is not for politicians, but international judicial bodies, to make such a determination of genocide. This occurs despite the fact that waiting for such a determination may mean failing to fulfil their duties to prevent and punish the crime of genocide; and, often, there are no international judicial bodies to make such a determination, or the existing mechanisms are not triggered.65
Where there is a serious risk of genocide, ‘if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.’66
4 CONCLUSION
As cases of persecution based on religion or belief, including cases of genocidal atrocities, are on increase, there is a great need to ensure that they are met with a systematic and structured approach. And above all, States must do more to prevent such atrocities.
Indeed, prevention of genocide, is a duty that States accepted and must implement, and among others, should lie at the heart of the foreign policy of every state. This is the only way to effectively protect people from the destructive force that such atrocities carry.
Responding to genocide and other atrocity crimes once they occur cannot achieve much as the ultimate damage is already done and people have paid the ultimate price. Prevention is the only way.
65 2005 World Summit Outcome Document, 138. Furthermore, under the Responsibility to Protect (R2P) principle, states are under a duty to protect their populations from genocide, crimes against humanity, war crimes and ethnic cleansing; and this responsibility includes: ‘the prevention of such crimes, including their incitement, through appropriate and necessary means... The international community should as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.’
66 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 431.
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DIREITO COMO RELIGIÃO: UM RELATO DOS ESTUDOS INICIAIS