A/HRC/42/CRP.5 influence can also depend on geographic proximity, regularity of contact and legal powers.62 But even a State with limited influence retains obligations under the duty to prevent genocide.63 Moreover, the failure to prevent genocide does not require proof that the State definitely had the power to prevent the genocide. It is sufficient that the State manifestly refrained from using its powers when it had the means to do so. 64 International law restricts States from doing only what is legally permissible when fulfilling their duty to prevent genocide.65 55. The Genocide Convention is silent on the issue of States prosecuting people who are under their jurisdiction but who committed genocide on another State’s territory. Conversely, the Rome Statute recognized in its preamble “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. 66 Regardless of whether the Genocide Convention contains a similar obligation on foreign States parties to prosecute or extradite,67 the Mission continues its call to States to exercise their criminal jurisdiction over perpetrators of genocide crimes. IV. The situation of the Rohingya 56. In its 2018 report, the Mission found that the attack on the Rohingya population of Myanmar was “horrendous in scope”. It found that, in much of northern Rakhine, “every 61 62 63 64 65 66 67 Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 430. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 434. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 430; see, also, Christian Tams, Article I, in Convention on the Prevention and Punishment of the Crime of Genocide: a commentary (eds. Tams, Christian J.; Berster, Lars.; Schiffbauer, Björn.), page 52. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 430. (“it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result — averting the commission of genocide — which the efforts of only one State were insufficient to produce.”). ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 438. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 430. (“it is clear that every State may only act within the limits permitted by international law.”) Rome Statute, preamble. See, for example, ILC, The obligation to extradite or prosecute (aut dedere aut judicare), Final Report of the International Law Commission, 2014, at footnote 447. The ICJ has addressed this issue with respect to Article VI of the Genocide Convention, ruling that an obligatory duty to punish did not exist under that article. The ICJ did not address, however, whether the duty was embedded in other articles of the Convention. See ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 442. Notably, the drafters of the Convention intentionally omitted the doctrine of universal jurisdiction from art. VI. Drafters’ intent is not, however, dispositive for treaty interpretation. Moreover, it is reasonable to conclude that the discomfort that States had with universal jurisdiction in 1946 is less significant now in light of the human rights treaties that include universal jurisdiction clauses, many of which deal with prohibited acts that are, or could be construed as, genocide’s underlying acts. To that end it is noteworthy that the ICJ has determined that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.” See, ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, para. 53. 17