Law in a World of Shadows: The Duty to Prevent Genocide and the Ecology of Norms

Prevention in its various forms is arguably the most important of the objectives of international agreements targeting heinous conduct. Yet the assessment of prevention involves the calibration of effects that are intangible or indirect when contrasted with concrete outcomes such as the prosecution of offenders under criminal law. The evaluation of effectiveness in relation to such intangible effects calls for interrogation of the wider context or ‘ecology’ of international regulation including both synergies and conflicts of relevant norms. Against this background, this article assesses the status of the duty to prevent genocide applicable to States Parties under the Convention on the Prevention and Punishment of the Crime of Genocide 1948; given the near-absolute prohibition of the unilateral use of force enshrined in the Charter of the United Nations, it explores whether the unilateral use of force is permissible to prevent genocide. Available proposals designed to resolve this conflict within the international legal system are evaluated with attention being paid to the peremptory nature of the relevant conflicting norms. It is concluded that the unilateral use of force is not permissible to prevent genocide under the existing international legal system. This conflict of norms illustrates the ecological interrelationships between norms.