This article analyses the duty to prevent genocide embodied in the 1948 UN Genocide Convention as described by the International Court of Justice in the Bosnia v. Serbia case. In particular, the paper addresses an issue that has received scant attention in legal literature: the consequences of considering the duty to prevent genocide an obligation of conduct regulated by due diligence, as affirmed by the International Court of Justice, in relation to the commission of a wrongful act.
To answer this question, one has to take into account the distinction between obligations of conduct and obligations of result, which is employed by international courts and tribunals. Obligations of conduct require States to act in a diligent way in order to reach a certain goal; the State’s behaviour must be assessed in light of the diligence required by the primary rule so that the State is no liable if it has behaved diligently notwithstanding the occurrence of the event that the primary rule wanted to prevent. However, if the duty to prevent genocide is an obligation of conduct, one must conclude that a State is responsible if it does not act diligently in order to prevent a genocide, even if that genocide in fact does not occur, notwithstanding the contrary position of the International Law Commission.
To solve this conundrum, the paper explores three possible solutions: i) whether the actual occurrence of a genocide is a component of the primary rule – thus rejecting the idea that the duty to prevent genocide is actually a duty of conduct; ii) whether the actual occurrence of a genocide is a component of a special secondary rule that is required to held a State responsible; iii) whether the actual occurrence of a genocide is relevant only as the reason why States decide to complain against other States’ failure to prevent genocide so that a complaint for failure to prevent genocide could be brought even if a genocide in fact does not occur.