CARTE-Politorbis Genocide Prevention Final

N 42 47
Politorbis
Zeitschrift zur Aussenpolitik Revue de politique trangre Rivista di politica estera www.eda.admin.ch/politorbis
Considering ways and means to achieve stronger statehood
The Fragile States Islam et politique Debate dans les Balkans Genocide occidentaux Prevention
2 / 2009
Contact: Federal Department of Foreign Aairs FDFA Directorate of Political Aairs DP Political Aairs Secretariat POLS Politorbis Bernastrasse 28 3003 Bern Phone: + 41 31 325 81 52 Fax: + 41 31 324 38 39 mailto: politorbis@eda.admin.ch www.eda.admin.ch/politorbis
Politorbis
Zeitschri zur Aussenpolitik Revue de politique trangre Rivista di politica estera
N47 2/2009
M Bleeker 9
Table of Contents
P :
Todays conversation about Genocide Prevention
A: W
Andrea Bartoli Tetsushi Ogata Gregory H. Stanton 15
Emerging paradigms in Genocide Prevention
Genocide Prevention in Historical Perspective
Yehuda Bauer
25
What is Genocide? What are the Gaps in the Convention? How to Prevent Genocide?
William A. Schabas
33
Options for the Prevention and Mitigation of Genocide: Strategies and Examples for Policy-Makers
Ted Robert Gurr
47
Why the Responsibility to Protect (R2P) as a Doctrine or (Emerging) Norm to Prevent Genocide and Other Massive Human Rights Violations is on the Decline: The Role of Principles, Pragmatism and the Shi ing Pa erns of International Relations
Jeremy Sarkin
51
Table of Contents
Risks, Early Warning and Management of Atrocities and Genocide: Lessons from Statistical Research Birger Heldt 65
How to Use Global Risk Assessments to Anticipate and Prevent Genocide
Barbara Harf
71
Prevention of Genocide: De-mystifying an Awesome Mandate
Francis M. Deng
79
B: S
Ren Bla mann 85
Prevention of Genocide: The role of the International Criminal Court
Transitional Justice and Prevention
Juan E. Mndez
91
Seeding the Forest: The Role of Transnational Action in the Development of Meaningful International Cooperation and Leadership to Prevent Genocide
Horacio R. Trujillo Sanjeev Khagram
99
Religion and the Prevention of Genocide and Mass Atrocity
Susan Hayward
107
Table of Contents
P C: R
The Systematic Violations of Human Rights in Latin America: The need to consider the concepts of genocide and crimes against humanity from the Latin American margin
Daniel Feierstein
115
Genocide Prevention and Cambodian Civil Society
Socheata Poeuv
123
A Reection from the United States: Advancing Genocide Prevention Through a High-Level Task Force
Lawrence Woocher
135
The construction of a global architecture for the prevention of genocide and mass atrocities
Enzo Maria Le Fevre Cervini Istvn Lakatos
149
The regional fora: a contribution to genocide prevention from a decentralized perspective
Silvia Fernndez de Gurmendi
155
This publication was made possible by a collaboration of the Swiss Federal Department of Foreign Aairs, Political Aairs Division Human Security, and the Engaging Governments on Genocide Prevention (EGGP) program of the Institute for Conict Analysis and Resolution (ICAR) at George Mason University in VA, USA. Many of the authors participated in the Regional Forum on the Prevention of Genocide in Buenos Aires (10-12 December 2008), co-organized by the Governments of Argentina and Switzerland. Also, some of the most distinguished authors of this issue are members of the Genocide Prevention Advisory Network (GPANet; h p://www.gpanet.org/). We extend our thanks rst and foremost to Tetsushi Ogata and Diana Smith who not only helped coordinate the project but executed it with precision and dedication. Many authors as well as the co-editors have recognized Dianas investment in the editorial review of the texts. We also thank Marlene Stefania for her designing layout for this diverse set of the articles. We are deeply appreciative. Special thanks go to all those who have contributed to the quality of the publication and to all those who at various stages provided encouragements for this initiative. Any remaining weaknesses are entirely our own responsibility. February 2010
M Bleeker FDFA Federal Department of Foreign Aairs
Andrea Bartoli EGGP/ICAR George Mason University
Preface
Todays conversation about Genocide Prevention
M B
Genocide prevention is the subject of the compilation of articles we are publishing in this edition of Politorbis. The eighteen articles add up to a metaphorical conversation, in which the various authors have agreed to participate. This conversation in the old sense of living with and engaging in an exchange with others is important for many reasons: - because acts of genocide continue to be planned and perpetrated; - because prevention is not always seen as an indispensible tool, process or objective; - because, in spite of their intangibility, human rights, are being sorely tested or even called into question; - because the genocide prevention community has accumulated a vast store of knowledge, but is aware of the (very) limited impact of its eorts, even its impotence; - because successful eorts are being made, but we are not suciently aware of them. The result is that, when a crisis that could lead to genocide is successfully defused, we do not remember it positively and build good practice upon it. Finally, this conversation is important because new players and new practices are always emerging. There is still however much to be done to ensure that the players in genocide prevention become more than just the sum of their parts. In other words, more synergy and cooperation is needed to build a real (transnational and multicultural) genocide prevention community aware of its strength and diversity and able to build on the impact of its collective cumulative action. Foreseeing and preventing recurrences Yehuda Bauer2 rightly insists on the need to
1 M Bleeker, a trained political anthropologist, serves as a senior adviser in the Swiss Federal Department of Foreign Affairs, in charge of Dealing with the Past and Genocide Prevention. She has an extensive experience in the field of human rights, conflict transformation and peace promotion in several continents and conflict context. Bauer, pages 25-32
distinguish between one genocidal conict/ situation and another. Indeed, genocidal situation is by nature unique and needs to be approached accordingly. Detailed analysis of the indicators likely to lead to an act of genocide (Birger Heldt, Barbara Har ) is crucial for early detection and eective preventive action. But though we have been aware of this for a long time, like Har3 we must ask: What has been learned? We know that genocides and political mass murders are recurrent phenomena; that since WWII nearly 50 such events have happened; that these episodes have cost the lives of at least 12 million and as many as 22 million non-combatants, more than all victims of internal and international wars since 1945; and that human suering rarely mobilized policymakers into action. How, then, can we really make prevention more eective? The very fact that we have to ask this question points to our need to understand one another as players in genocide prevention - each a segment in a complex chain. A unique segment that has its own raison dtre, but which absolutely must see itself as a link, an intrinsic part of a chain greater than itself. And this, in turn, points to the need to engage in more in-depth conversations, to form more alliances. 1 Prevention networks
Early action Early action, in seeking to prevent genocide, is o en associated with partner states, regional and international institutions (to which we shall return later). But looking beyond where early action is concerned, how can we engage with those sca ered communities (and individuals)- civil society players, national and international players, media, artists, writers, politicians, development and humanitarian aid workers, business people who live and work in societies where warning signs of genocidal situations are detected? These are the communities who could help to strengthen
3 No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955 http://www. brynmawr.edu/Acads/GSSW/schram/harff.pdf
Politorbis Nr. 47 - 2 / 2009
preventive initiatives in these circumstances. What are the outcomes of the conversations with these local actors until now? What lessons have we learned in terms of best practice? How can we give them greater resonance and impact? How can we develop new cooperative ventures? Where such conversations are not taking place, when and how can we initiate them? What road maps, what mobilization techniques and operational procedures can we develop to strengthen prevention eorts in these societies? Human rights Human rights norms and standards have developed at an exponential rate in recent decades. The same can be said in the eld of International Humanitarian Law. The protection of civilians, the responsibility to protect, resolution 1325, and the ILO Convention on the Rights of Indigenous Peoples are among the components of the architecture of human rights protection. The jurisprudence has also developed, establishing these rights even more intangibly through the sanctions imposed on the perpetrators. That said however, this is oset by another major problem: the welcome development of norms is not at all matched by eorts to apply them. And this has the opposite eect, in the form of a very perverse dynamic that weakens the overall architecture of human rights protection. How can anyone respect norms and standards, the violation of which does not result in sanctions or other negative consequences? The feeling that the international community operates a double standard considerably undermines the credibility of the architecture of Human Rights as well as of International Humanitarian Law. Having an even be er structured dialogue with the human rights community is an objective that cannot be ignored. Education which creates awareness of human rights and International Humanitarian Law strengthens the ability to reject violations, helps to strengthen respect for human rights as a whole as well as to erect barriers against discrimination. The human rights community has a number of instruments at its disposal that can help in the prevention of genocide, including education, warnings in case of violations, rapid reaction, and lobbying of the relevant authorities. The establishment of national human rights programmes and the Universal Periodic Review (UPR)4 are two very useful tools for early prevention. What can
4 http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain. aspx
we conclude from the discussions and eorts to cooperate with this community to date, what are the lessons learned, the best practices? The agenda of State and multilateral players Disagreement between States, among the members of the International Community, and even within State and multilateral bodies is another concern voiced by a number of authors. For those moving in these circles, there are several aspects of the situation which are always worrying, and sometimes extremely frustrating: - The systematic or even systemic lack of connection between ocials working for the same government or multilateral institution. We are all familiar with the tragic consequences of these failures in communication, the absence of dialogue and rm decision-making, and indeed of bad decisions. - The almost general absence of prevention structures with the necessary resources and decision-making powers and involvement in a network of similar structures to react in an appropriate and timely manner; in other words, the lack of concerted early response on the part of governmental or multilateral institutions. - A lack of dialogue and cooperation between players involved at all stages of intervention in situations of crisis, humanitarian aid, development, security, bilateral and multilateral diplomatic representation, and the economy. - An a achment (deemed obsolete by the W21 group) to the national interest on the part of many players, including the great powers, at a time when globalization and the transnationalization of economies are confronting us with unprecedented issues of world governance. Not to mention the right of veto in the Security Council. This list is not exhaustive. Echoing these obstacles, the W21 work group5 calls for a fundamental change, saying We are asking for nothing less than a change of paradigm, a change in the way our leaders view the world. More particularly, we are trying to convince the leaders of Canada and the United States6 to adopt a concept of national interest which takes into account the idea that the prevention of genocide and mass atrocities serves the interests of their peoples and that to neglect these ma ers puts the well-being of
5 W21 Leadership and action for the prevention of mass atrocities, MIGS institut montralais dtudes sur le gnocide et les droits de la personne, ISBN 978-0-88947-474-1 This exercise could be extended to all the members of the Security Council
their citizens at risk. The age of the global village is now upon us. Today, failure to take account of the instability and conicts engendered by acts of genocide and mass atrocities results in a serious threat to the health, security and prosperity of our two peoples. Combating impunity Those combating impunity7 are another link in this complex chain in post-conict situations. As Juan Mndez reminds us, impunity is an incentive to commit further crimes, but this can be challenged because justice and peace are mutually reinforcing, and also because civic trust8 is a fundamental factor in prevention (before the event) and rehabilitation (a erwards). I am not here referring only to the players and institutions of retributive justice, those international tribunals, whether hybrid or Special Chambers, charged with judging crimes against humanity, war crimes, and crimes of genocide.9 In this context, what is referred to as restorative justice can also play a key role. In his principles against impunity,10 Louis Joinet sets out the rights of victims (as subjects of law) and the duties of States in situations of massive violations of human rights. A proper combination of the right to know, the right to justice and reparation, guarantees of no recurrence constitutes a holistic framework for combating impunity, the dual advantage of which is that it combines sanction and rehabilitation and involves dialogue between citizens and the authorities. The cumulative eect of these measures should help to achieve not only a radical hatred of human rights violations, but also a rehabilitation of society, by strengthening civic trust and the perception that suitable measures have been taken at all levels the structural level included to avoid a repetition of such events. These principles against impunity, approved in 1997, have been reinforced by the Secretary Generals
report11 on transitional justice and the rule of law, published in 2004. Two elements in this report are useful for our present purpose: the documents insistence on prevention, though it is concerned mainly with war-torn societies12 and the importance it ascribes to the participatory formulation of strategies to combat impunity. This la er element is crucial, on the one hand because it helps to strengthen civic trust and, on the other, because as the document rearms it is not additional measures that will make the dierence, but the sum of existing eorts in the context of a qualitative process whereby the State assumes its responsibilities (in cooperation with its citizens). A more sustained conversation between the genocide prevention community and those ghting against impunity is bound to contribute, on the one hand, to a rejection of those things which generate genocidal situations and, at a later stage, to a strengthening of the impact and eectiveness of sanctions designed to deter future perpetrators. Systemic alliances There is a cynical popular saying that you cannot be right all on your own. Sadly, this is quite untrue: you can very easily be right all on your own. But you cannot have any impact all on your own, especially in this eld. The extraordinary weight of knowledge accumulated by the genocide prevention community can only have more impact if it contributes to the development of multiple agendas, themselves the fruit of multiple conversations. A more structured organization of these multiple conversations could help create a more diversied and structured political determination to prevent genocide and intervene at an early stage where necessary. Within government bodies, there needs to be more systematic and horizontal in-depth discussion of genocide and mass violence, including all the players likely to be involved in the reaction chain. Regular, formal exchanges between governments on this subject would also almost certainly be fruitful. This might gradually lead to the emergence of a multi-state community of interests sharing this
11 The rule of law and transitional justice in conflict and postconflict societies http://www.eda.admin.ch/etc/medialib/ downloads/edazen/topics/peasec/peac.Par.0258.File.tmp/Dw P%20Report%20of%20the%20Secretary%20General.pdf 12 Peace and stability can only prevail if the population perceives that politically charged issues, such as ethnic discrimination, unequal distribution of wealth and social services, abuse of power, denial of the right to property or citizenship and territorial disputes between States, can be addressed in a legitimate and fair manner. Viewed this way, prevention is the first imperative of justice, page 4
I am referring here to the principles against impunity developed by Louis Joinet and revised by Diana Ohrentlicher. 8 Trust put to the test of radical modernity, Claire LOBETMARIS, reinventing the equation of citizen trust and public governance - a difficult exercise, in http://www.peterlang. com/PDF/Buecher/Intro/21525_Intro.pdf, page 13., Cellule Interdisciplinaire de Technology Assessment FUNDP Namur (B) 9 The Nuremberg Declaration on Peace and Justice. http://www. auswaertiges-amt.de/diplo/en/Aussenpolitik/FriedenSicherheit/Downloads/NuernbergerErklaerung-eng.pdf 10 http://www.eda.admin.ch/eda/en/home/topics/peasec/peac/ confre/depast/concep.html
critical reinterpretation of the national interest, in close convergence with the prevention of genocide and mass atrocities. This process of reection also needs to be transcontinental. Regional genocide prevention forums13 are important in that they help develop regional dialogue and strengthen the many positive points of view and approaches to the prevention of mass violence and genocide. We can learn much from them, in particular how regional bodies or the moral authority of neighbouring countries have helped to prevent very serious conicts from escalating. They also show how some multilateral interventions, including unilateral interventions on the part of the North, are resented and feared because they are seen to destroy the fragile eorts to re-establish trust and dialogue on which it was thought more lasting se lements could be built. We reckon that one of the results of these international forums should be to strengthen a multilateral community concerned to prevent acts of mass violence and genocide, and that this should help to generate the political will at the regional and multilateral levels to eect concerted early interventions, in compliance with international law. 2 The 1948-2010 Convention: an imperfect instrument born of special circumstances Another important conversation is developed in embryo in this review: it concerns denitions and legal issues, and identies related ambiguities and deciencies. Schabas, Bauer, Feierstein and Bla mann exhort us to see the Genocide Prevention Convention in context. Schabas,14 in particular, reminds us that the history of genocide has developed in parallel with the existence of the notion of crimes against humanity. He also points out that the crime of genocide is not the action of a deviant individual but an act of State and, very strikingly, that: It is the perpetrator of genocide who denes the individual victims status as a member of a group protected by a Convention. And Bauer continues: But when a conict escalates into a confrontation in which one party has overwhelming power, and the other(s) li le or none, a genocidal situation may develop. We then talk about full-scale genocides
13 Switzerland, Argentina (2008) and Tanzania (2010) are together holding a series of regional forums, the first of which took place in Buenos Aires in 2008. See http://www.eda.admin.ch/ eda/en/home/topics/peasec/peac/confre/depast/lindow.0011. html#faq0011 14 His article in Politorbis, page 33
according to the Genocide Convention, about the annihilation of groups as such, about politicide, about ethnic cleansing when the purpose is to annihilate the targeted group, and about genocidal ideologies aiming at world control to be achieved by mass murder that has the characteristics of genocide. (.) My colleague David Scheer will call them mass atrocities, someone else calls it democide, that is mass murder of humans, I may call it genocidal situations, but we all basically mean the same thing: intentional mass destruction, as such, of human groups, whether these groups are real or contrived. Feierstein writes that: Even the most interesting legal denition the concept of genocide never seems to apply to any situation. The result is that all oences fall under the concept of crimes against humanity. This legal denition is becoming increasingly broad, and has come to include an alarming array of practices. And he shares his concern that we shall see certain norms and standards weakened as a result of the war against terrorism and I personally would add also through the calling into question of International Humanitarian Law, especially in the context of asymmetrical conicts. From another angle, how can we say to victims living in circumstances where impunity and a culture of denial reign, that what has happened to them even if it is not called genocide is no less serious? These victims, crushed by the indierence of the International Community, by their isolation and fear of a repetition, were hoping that the term genocide would, at last, a ract the a ention of the International Community. As if the term genocide could give a li le more weight to their unspeakable suering. Therefore, impunity and a culture of denial also tend to make the norms and standards we are referring to more fragile. Another question emerges as to the nature of the Nation State and its relationship with identity groups in todays globalized world. However, there is still no resolution with regard to the character of our states, or of the need to recognize the multicultural reality within their constitutional systems as well as in everyday life15 writes Feierstein in analysing the present consequences of this specic aspect of history in Latin America. From a dierent angle, Bauer raises a similar issue: There is a dialectical development one
15 Ibid Text Feierstein page 117
can discern in international politics reecting two contradictory global trends. A tendency towards greater unication, on the one hand, and an opposing tendency towards greater autonomy and independence of ethnic and/or national groups, on the other hand...16 Recently the development of globalization made some, or perhaps many, of these ethnic groups aware of their specic identity, so there is a danger that ensuing struggles for recognition of these entities might cause increasingly violent conicts, and a threat looms of dissolution of existing states, and of murderous confrontations.17 Both plead for an in-depth analysis of this issue and its possible solutions, such as federalist, multi-ethnic constitutions, for example. We also need to learn lessons from the development of other instruments such as ILO Convention no. 169,18 which has not been ratied or applied to the extent that it should have been. This is an important issue to which we can and must devote more eort. It requires sustained conversation with those engaged in mediation and civil eorts to resolve conicts, but also with economic players and indeed others with whom there is need for reections on the constructive management of diversity within societies. In this context at least, economic players have a vital part to play, primarily because they, too, are concerned with identity-related claims connected with access to resources and markets; but also because as one can easily imagine genocidal situations can harm them. In-depth conversations might also serve to bring on board those who, because of their professional practice,19 might have reason to join the genocide prevention community, and to isolate those of them who might prot from genocidal situations. Finally, in societies living with the a ermath of mass crimes and genocides, eorts of memory are crucial, in particular when, as part of a global eort to combat impunity in line with the Joinet principles, they make it possible to avoid the tendencies that Tzvetan Todorov denounces in his book on the abuses of memory. In the post-genocidal period, it is important to conduct a dialogue involving several voices, to understand how the mechanism leading to the destruction of the Other was put in place.
16 17 18 19 Bauer, page 26 Bauer, page 27 C169 Indigenous and Tribal Peoples Convention, 1989 In particular those involved in Global Compact and Business and Peace.
This a empt at dialogue, tackling together a shared conictual past, is crucial. This can help to a enuate the development of identities based on victimhood and hatred of the other. Or identities based on guilt, which provide fertile ground for a culture of denial. In this way, it is also possible to assign individual responsibilities and avoid dangerous generalizations which jeopardize future progress. Finally, quite apart from judicial sanctions and reparations to the victims, for both victims and victimisers to a empt together to analyse a shared past of violence and violations can help towards a real process for the re-establishment of relations between divided communities, societies or nations. The initiative taken by Armenia and Turkey20 in this sense can play a fundamental role for the future of their citizens, their nations and ultimately for the entire region. 3 Next step: strengthening the genocide prevention community Given the many setbacks and only minor successes in genocide prevention, it is ing that we adopt an a itude of both humility and radical commitment. Each contributor to this review suggests some ways forward. Nothing earth-sha ering: we are bound to be realistic, but stubborn too. A multitude of achievable minor initiatives, and be er coordination of our eorts, can certainly bring about change and strengthen not only a positive culture but also the political will to prevent genocide. New initiatives Woocher, Lakatos and Lefevre refer to initiatives taken by governments in these areas. This is promising and, hopefully, many other projects will be developed on these lines. In the context of our conversation, however, it is evident that these initiatives will have a cumulative eect only if they are seen as a segment of a more wideranging systematic architecture. In such dicult circumstances, these new undertakings need to be characterized by systemic coordination, clearly stated interdependence, the development of niche areas of cooperation, transparent governance, and a maximum of dialogue, simplicity and institutional exibility. These qualities are vital to the development of the new initiatives, the aim of which
20 http://www.mfa.gov.tr/protocol-on-development-of-relations-between-the-republic-of-turkey-and-the-republic-ofarmenia.en.mfa and http://www.armenian.ch/fileadmin/ user_upload/saa/Docs/2009/200909-ArmeniaTurkeyProtocols_E.pdf
must be to have greater impact than that achieved by the sum of their parts.21 And there are other ideas expressed in these articles which are within our capacities: - To educate, train and increase the numbers of well-informed players in the eld of genocide prevention, at the multilateral level and at the national and local levels. To disseminate knowledge in this eld so as to diversify the sources of pressure on governments, so that they assume their responsibility for preventing genocide before it is too late. - To develop communications, decision-making and action protocols, at governmental and intergovernmental level, to ensure that there is a rapid reaction when the worrying signs of a genocidal situation begin to emerge. - To instigate formal conversations between governments on these issues. At the very least, to identify contact persons within each government for the prevention of genocide. More ambitiously, to work towards a situation where governments are engaged in a multi-state early genocide prevention network. - To instigate formal conversations with the civil society players involved in these elds. To learn lessons from past experience and use them to develop concerted actions involving governments. - To encourage parliaments to legislate on this issue and formulate strategic proposals for their national executives. - To strengthen judicial and non-judicial measures to combat impunity. - To pursue regional conversations and reinforce them with training initiatives for civil servants of the State, civil society leaders and civil servants involved in regional initiatives. Finally, by improving our communications as a community and combining our skills and resources, we can certainly achieve more together and make our eorts count more. This is how I interpret the inspiring conversation being hosted by Politorbis today. My warm thanks to all the contributors.
21 Chaos theories and virtual institutions have many useful things to teach us where this sort of institutional development is concerned.
15
Emerging paradigms in Genocide Prevention*

A T G B O S
1
Willful neglect Genocide as an experience of human behavior throughout history is old, but our concern and understanding about it are relatively new. Humans have probably been commi ing genocide since the beginning of our species.2 Killing en masse and commi ing crimes against other human groups is not new to human history. Human groups have considered and unfortunately still consider genocide as a viable political course of action, contemplating the intentional destruction of other groups - national, ethnical, racial or religious, in whole or in part in such a way as dened by the UN Convention on the Prevention and Punishment of the Crime of Genocide.3 However, it is only in recent years that we have come to acknowledge
* 1 We thank Jim Fussell for providing critical feedbacks on earlier drafts. Andrea Bartoli is Director and the Drucie French Cumbie Chair at the Institute for Conflict Analysis and Resolution, George Mason University. He is the Founding Director of Columbia Universitys Center for International Conflict Resolution (CICR) and, along with his colleagues, initiated the Engaging Governments on Genocide Prevention (EGGP) program at CICR in 2007. Tetsushi Ogata is a doctoral candidate at the Institute for Conict Analysis and Resolution, George Mason University. He is a program manager of the Engaging Governments on Genocide Prevention (EGGP) program which is now jointly organized by ICAR and the Advanced Consortium on Cooperation, Conict, and Complexity (AC4) at Columbia University. Gregory H. Stanton is the Research Professor of Genocide Studies and Prevention at the Institute for Conict Analysis and Resolution, George Mason University, Arlington, Virginia, USA. He founded Genocide Watch and the International Campaign to End Genocide in 1999, and the Cambodian Genocide Project in 1981. From 2007 to 2009, he was President of the International Association of Genocide Scholars. Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur, (New Haven: Yale University Press, 2007) Convention on the Prevention and Punishment of the Crime of Genocide, (1951). Article II defines acts of genocide: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group
genocide more systematically, trying to articulate understandings that were simply unavailable to our ancestors. There was a long delay in recognizing genocide as a crime despite its recurrence throughout human history. As a human race, we did not even have a name to describe genocidal violence before the Second World War when Raphael Lemkin coined the term genocide.4 Until then, it was a crime without a name in the words of Prime Minister Winston Churchill.5 The systematic mass murder of millions of people in the Holocaust, however, forced us to recognize that humans were killing other humans in systematic ways, with the intent to destroy groups in whole or in part, with terrifying results. The UN Genocide Convention of 1948 emerged as the legal response, stipulating a detailed and quite technical denition as a crime against the law of nations6 which then engendered debates among scholars for decades to follow.7 Yet willful neglect prevailed in spite of numerous genocides in the la er half of the 20th century; the worlds leaders were mindful of what was unfolding and yet stood by and negligently let the crimes transpire. This indierence was partly justied by political calculations that made sense to the perpetrators8 and was tolerated by a desire to avoid intervention in violent strife by leaders of other countries who were desensitized by ideology to the violence inicted on the mass of victims and their communities, the ideological numbing of the Cold
5 6
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, (Washington: Carnegie Endowment for International Peace, Division of International Law, 1944) In a radio broadcast delivered by Winston Churchill on August 24, 1941, after Germany invaded the Soviet Union William Schabas, Genocide in International Law: The Crimes of Crimes, (Cambridge, U.K: Cambridge University Press, 2000), 14 For definitional conundrum and the illustration on the debates and inclusivist or exclusivist camps, see for example Adam Jones, Genocide: A Comprehensive Introduction, (London: Routledge, 2006) Benjamin A Valentino, Final Solutions: Mass Killing and Genocide in the Twentieth Century, Cornell studies in security affairs, (Ithaca, N.Y: Cornell University Press, 2004).
War.9 The very Genocide Convention which was adopted on 9 December 1948, a day before the Universal Declaration of Human Rights was adopted, was also an expression of this willful neglect. The text of the Convention deliberately le an ambiguous space for interpretation as it omi ed politicide destruction of groups based on imputed political aliation from the terms of the Convention.10 The debate and disagreement over ambiguities and uncertainties embedded in the Genocide Convention, despite the original intent of the dra ers, endure to this day. Among the unresolved issues are the denition of genocide and what institutions have responsibility for its prevention, as well as legal standards on the meaning of intent to destroy the enumerated groups in whole or in part.11 Does the intent need to be specic as advocated by European civil lawyers, making prosecution possible a er genocide is over, but prevention almost impossible while a genocide is underway? Or is simply knowing of the intent sucient, as the common law tradition and Lemkin meant? Genocide is a highly political act and genocide prevention cannot be but a political response. While genocidal processes assume necessarily uid and conditional circumstances before the occurrence of genocide,12 even the framing of group classication, especially into a politically dichotomous relationship, could precipitate a genocidal threat.13 Yet few would disagree that genocide cannot happen without mass murder of human groups and without the willful neglect of other states. Genocide prevention therefore requires that politically willed a ention be paid to processes of human interaction at all the dierent levels individual, group, and state over time and space. What is emerging today is a conuence of burgeoning scholarship, systems of information management, doctrinal evolution, and institutional platforms that assist us in inviting shared understanding and looking at the phenomena dierently and more comprehensively. The ensuing
9 Paul Slovic, "If I look at the mass I will never act": Psychic numbing and genocide, Judgment and Decision Making 2, no. 2 (2007): 79-95 Barbara Harff and Ted Robert Gurr, Toward Empirical Theory of Genocides and Politicides: Identification and Measurement of Cases Since 1945, International Studies Quarterly 32, no. 3 (1988): 359-371 See Schabas in this volume for further discussion Mark Levene, Genocide in the Age of the Nation-State: The meaning of genocide, Volume 1, (London: I.B. Tauris, 2005) For stages of how genocidal processes could develop, see Gregory Stanton. 1996. The 8 stages of genocide. In Totten and Bartrop, eds., The Genocide Studies Reader, (Routledge, 2009). Also available at Genocide Watch at http://www.genocidewatch. org/aboutgenocide/8stagesofgenocide.html
discussion will highlight the key developments in those areas, illuminating a direction where the emerging trends are leading us. Emerging trend: scholarship Genocide is squarely in a politically contested area. To speak about genocide is to speak politically. Genocide prevention, in this sense, is strictly linked to politically relevant knowledge. States have been very sensitive to information about political violence in their territories. They have tried to limit media coverage of such events for a long time. One of the most signicant risk predictors of genocide is the closure of a states borders to trade and the ow of information.14 However, four signicant processes have changed the course of this trend. Sociological, anthropological, and political science scholarship on precursors and risk factors for genocide have been one of those processes. Among the pioneers of genocide studies include sociologists Leo Kuper, Irving Louis Horowitz, and Helen Fein; political scientists R.J Rummel, Barbara Har and Ted Gurr; psychologists Israel Charny and Ervin Staub; lawyers William Schabas and Gregory Stanton; and historians Yehuda Bauer, Ben Kiernan, and Henry Hu enbach. It was in the 1980s when studies of genocide started developing quickly into an academic eld. Leo Kuper produced the seminal contribution to genocide studies since Lemkins work,15 along with Horowitz16 and Charny17 who developed further understanding of genocide and its comparative framing. Other classic volumes were Feins comparative studies of the Holocaust and genocides18 and Chalk and Jonassohns historical analysis of genocidal forms in relation to social contexts through twenty case studies.19 Charny produced the two-volume Encyclopedia of Genocide in 1999 which reected the contested debates on denitions and interpretations of genocide as well as the
10
11 12 13
14 Barbara Harff, No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955, American Political Science Review 97.1 (2003): 57- 73 15 Leo Kuper, Genocide: Its Political Use in the Twentieth Century, (New Haven: Yale University Press, 1982). Also, see Leo Kuper, The Prevention of Genocide, (New Haven: Yale University Press, 1985) 16 Irving Louis Horowitz, Taking Lives: Genocide and State Power, (New Brunswick, N.J: Transaction Books, 1980) 17 Israel W. Charny, How Can We Commit the Unthinkable?: Genocide, the Human Cancer, (Boulder, Colo: Westview Press, 1982) 18 Helen Fein, Genocide: A Sociological Perspective, Current Sociology 38, no. 1 (1990): 1-126. 19 Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies, (New Haven: Yale University Press 1990)
measures to prevent it.20 Historians such as Bauer21 and Kiernan22 located genocidal violence in context and demonstrated the feasibility of inquiries and painstakingly blazed pathways towards deeper understanding of genocide in human history. Concomitant to the growing scholarship, genocide studies as an academic eld became formally organized by the launch of the International Association of Genocide Scholars (IAGS), founded in 1994 by Charny, Fein, Melson, Smith and others, which holds biennial conferences drawing a rich diversity of groups and academics with the aim of prevention. Two leading journals have emerged: the Journal of Genocide Research in 1999 under the editorship of Hu enbach, and the Journal of Genocide Studies and Prevention, the ocial journal of the IAGS since 2006. Emerging trend: information management The second process has been the increasing availability of databases and open source information that make it possible to share the task of sustained monitoring of political structures and relevant incidents at the local and global level. Barbara Har and Ted Gurr initially directed research activities of the State Failure Task Force which was formed at the request of US policymakers and commissioned by the Central Intelligence Agency. They charted cases of state violence commi ed against targeted populations and developed datasets and quantitative models to show the correlates of state failure, of which genocides and politicides are part.23 This task force was renamed the Political Instability Task Force in 2003, shi ing its original scope of analysis from narrowly dened state failure and collapse. Taking part in the new task force, Monty Marshall and colleagues have produced global reports on systemic violence, monitoring trends in armed conict, governance performance, and state fragility.24 The areas of risk assessments and early warning assessments have also been burgeoning in tandem with these developments.25 What is fundamentally changing as a result of these new powers in data-driven analyses at the state system level is the fact that genocide prevention is becoming a line of specialized inquiry. In the past sixty years since the adoption of the
20 Israel W Charny, ed., Encyclopedia of Genocide, (Santa Barbara, Calif: ABC-CLIO, 1999) 21 See Bauer in this volume for further discussion 22 Kiernan, Blood and Soil 23 See datasets developed by the State Failure Task Force at the Political Instability Task Force website at http://globalpolicy. gmu.edu/pitf/ 24 See the Center for Systemic Peace led by Monty Marshall for the Global Reports at http://www.systemicpeace.org/ 25 See Heldt in this volume for further discussion
Genocide Convention, growing understanding of genocide studies through the early literature and quantitative analyses dedicated to prevention eorts has prepared the new analytical frame and conditions under which we can now operate and has bridged the gap between the two communities of researchers and policymakers. Highly political in nature, this inquiry has the potential to contribute meaningfully to the peace and security debate of the 21st century. The increasing presence of open-source information has also contributed to politically relevant knowledge of genocide prevention. Growing technological resources and a large amount of available data have signicantly changed the value of information that is crucial to genocide prevention. While the emergence of experimental platforms such as the FAST International early warning program housed in Swisspeace or Ushahidis website application to map incidents of violence and peace eorts based on crowd-sourcing information have not reduced genocide prevention methodology only to its technical components, the tactical debate has been expanded from historical and comparative analyses of past genocides to incorporate contemporaneous analyses of datasets to produce predictive models of genocide. Gregory Stanton founded Genocide Watch in 1998, the rst international organization that attempts to predict and prevent high risks of genocidal development at the global scale through information sharing and coordination of the International Campaign to End Genocide, a global coalition that now includes thirty organizations on ve continents with hundreds of eld researchers.26 The Campaigns largest members, such as the International Crisis Group, have multi-million dollar budgets with researchers on the ground around the world, as well as sophisticated access to policy makers. The Genocide Watch website and websites of the Campaigns other members provide up-to-the minute resources through aggregated information on early warning signs of genocide and politicide by issues and regions, and aims to educate the public about genocide and politicide. Much of the work of Genocide Watch and the International Campaign is done behind the scenes through direct access to policy makers in key governments who put pressure to bear on states that are beginning to engage in genocidal behavior. Jacques Semelin has initiated the edited online reference in genocide studies, Online
26 See Genocide Watch for more information on genocide and its debates and issues, events and updates, and recent news about particular regions at http://www.genocidewatch.org/ home.html
Encyclopedia of Mass Violence.27 This project emerged in 2004 in an eort to coalesce multidisciplinary eorts to understand genocide and massacres, such as case studies, chronological indexes and peerreviewed analytical contributions, in a regularly updated electronic database, bringing the communities of academics, NGOs and journalists together. A new website, Genocide Prevention Now, a project of the Institute on the Holocaust and Genocide in Jerusalem, a member of the International Campaign, will inaugurate an online magazine on genocide prevention in 2010. Emerging trend: doctrinal evolution Many of the terms of the Genocide Convention remained undened by case law until 1998. Before the conviction of the Equatorial Guinean tyrant Macias Nguema for genocide in 1979, no national court had convicted any person of genocide since the Genocide Convention became international law, and the decision of that court dened no terms. The rst case led under the Convention before an international court was the case led in the International Court of Justice by India against Pakistan for the Bangladesh genocide of 1971, but that case was withdrawn a er a diplomatic se lement. In 1981, the Cambodian Genocide Project, founded by Gregory Stanton, set out to gather the evidence and nd a venue for trial of the leaders of the Khmer Rouge regime in Cambodia. At rst the only possible venue was the International Court of Justice, but no state-party to the Convention was willing to take a dispute with Cambodia to that court. In 1993, the International Criminal Tribunal for the Former Yugoslavia was established with genocide in its subject ma er jurisdiction, but largely because of its narrow interpretation of the specic intent element of the crime,28 the ICTY convicted no one of genocide until the Krstic case in 2001, a conviction limited by the ICTYs own Appeals Chamber in 2004. In 1994, the International Criminal Tribunal for Rwanda was established and handed down the rst convictions under the Genocide Convention a er trial. The ICTR has resolved many questions of denition, such as how to dene a group (subjectively, from the point of view of the perpetrator),29 whether mass rape is a punishable act of genocide
(it is),30 and how hate speech is distinguishable from incitement to commit genocide.31 Although the Akayesu judgment for the rst time applied the specic intent standard advocated by some genocide scholars, close analysis of ICTR case law shows that the court has adopted a standard much closer to the common law knowledge based intent requirement. Beginning with its Akayesu judgment32 and continuing through its path-breaking decision on incitement in the Media case (Nahimana, et al.),33 the ICTR has provided the legal basis for reclaiming much of what was lost at the dra ing of the Genocide Convention. The Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal) have established a new model for prosecution of genocide, with a mixed structure involving assistance and participation by the United Nations, but under the national law of Cambodia, which includes the Genocide Convention. The Cambodian Genocide Project has played a crucial role in shaping this tribunal, and remains a consultant to it. Gregory Stanton led the eort to dra the procedural rules for the tribunal, which is nally trying the surviving leaders of the Khmer Rouge.
30 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998). 31 The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging. That is to say that the person who is inciting to commit genocide must have himself the specific intent to commit genocide, namely, to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Akayesu, Judgment, at 559. 32 Akayesu, Judgment 33 Prosecutor v. Nahimana, Barayagwiza & Ngeze, ICTR-99-52-T, Judgment (Dec. 3, 2003). The Nahimana trial courts decision finally defined the distinction between hate speech and incitement to commit genocide. Judge Pillays opinion noted the importance of incitement in the planning and execution of genocide. Judge Pillay cited the planning and financing that Nahimana and his co-defendants marshaled as heads of Radio Television Libre de Milles Collines, the infamous hate radio station that literally gave coordinates to killing squads. Ngezes Kangura, the Hutu Power newspaper that helped create the culture of dehumanization and hatred crucial to the genocide, was found to be causally connected to whipping the Hutu militias into a killing frenzy. Barayagwizas distribution of weapons and Ngezes incitement by megaphone to the killers were also found to causally contribute to the genocide. Judge Pillay cut through the arguments against genocidal intent by citing the defendants numerous public statements: Lets exterminate them; Exterminate the cockroaches (Tutsis). Judge Pillay noted that the Streicher case at Nuremberg did not require a direct effect to prove incitement, and noted that incitement to violent crime is not protected speech even in the most liberal countries, such as the United States.
27 See Online Encyclopedia of Mass Violence for more details at http://www.massviolence.org/ 28 See Prosecutor v. Jelisic (Appeals Chamber, 2001) and Prosecutor v. Krstic (Appeals Chamber, 2004) 29 See Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-951, Judgment, 97-98 (May 21, 1999)
Emerging trend: institution-building The fourth process that has made genocide prevention a more politically contested inquiry is a growing body of institutions mandated to respond to genocidal risks and prevention. Institutions at the local, national, regional and international levels dealing with genocide were lacking as a result of the willful neglect demonstrated by many states in the second half of the 20th century. Until the rst Stockholm International Forum on the Holocaust was held in 2000, no conference had ever addressed the need to remember Holocaust history at the international state level. The subsequent series of Stockholm conferences, most notably in 2004 on Preventing Genocide, created the momentum for moving toward a culture of prevention, rather than that of reaction, and for instituting new functions within the United Nations. In Stockholm, 10 years a er the Rwandan genocide, a Special Rapporteur on the Prevention of Genocide, who would report directly to the Security Council, was proposed by then UN Secretary General Ko Annan. Gregory Stanton, Bernard Hamilton and the International Campaign to End Genocide had proposed and lobbied for the creation of the position of Special Rapporteur on Genocide Prevention, together with an independent Genocide Prevention Center since 2002.34 The creation of the position of Special Adviser to the Secretary General on the Prevention of Genocide was formalized with a le er of the Secretary General to the Security Council on 12 July 2004. Juan Mndez was appointed as the rst Special Adviser who was tasked to (a) collect existing information, in particular from within the United Nations system, on massive and serious violations of human rights and international humanitarian law of ethnic and racial origin that, if not prevented or halted, might lead to genocide; (b) act as a mechanism of early warning to the Secretary-General, and through him to the Security Council, by bringing to their a ention potential situations that could result in genocide; (c) make recommendations to the Security Council, through the Secretary-General, on actions to prevent or halt genocide; (d) liaise with the United Nations system on activities for the prevention of genocide and work to enhance the United Nations capacity to analyze and manage information relat-
ing to genocide or related crimes.35 In 2007, Secretary General Ban Ki-Moon appointed Francis Deng as his Special Adviser at the level of Under-Secretary General. The evolution of this oce developed along with the parallel debate on the responsibility to protect.36 At the national level, the US State Department had earlier instituted the ambassadorial position for the Oce of War Crimes Issues under the Clinton administration in 1997, following the genocides in Rwanda and the former Yugoslavia. The position is still the only oce in the world with ambassadorial rank exclusively focusing on war crimes, genocide, and crimes against humanity. David Scheffer, the rst Ambassador-at-Large for War Crimes Issues appointed by President Clinton, led eorts to create coordination within the US government to prepare eective responses a er the policy failures of the Rwandan genocide. The position has been maintained ever since and has been lled by PierreRichard Prosper, John Clint Williamson and Stephen Rapp. While not specically focusing on the prevention of genocide, the Oce of War Crimes Issues advises the Secretary of State directly and formulates U.S. policy responses to atrocities commi ed in areas of conict and elsewhere throughout the world.37 It aims to ensure accountability in the regions aected by alleged war crimes such as the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and Iraq and thereby establish the rule of law. Therefore, the Ambassador-at-Large has a range of diplomatic, legal, economic, military, and intelligence tools at his disposal. Yet the functionality and operational capacity of the US government in the eld of prevention was signicantly weakened when the monthly meetings of the Inter-Agency Atrocities Working Group were not continued. In order to bolster the prevention side of the US governments eorts, the Genocide Prevention Task Force was launched in 2007 by the United States Institute of Peace, chaired by former Secretary of State Madeleine Albright and former Secretary of Defense William Cohen. The Task Force was dedicated to monitoring risks of genocide and coordinating preventive diplomacy and contingency plans. Its report on Preventing Genocide in 2008 was designed for the US government and became the rst
35 UN Security Council. Letter of the Secretary-General on an outline of the mandate for the Special Adviser on the Prevention of Genocide (UN S/2004/567). 13 July 2004 36 See Sarkin in this volume for further discussion surrounding the Responsibility to Protect 37 See the Office of War Crimes Issues at the US Department of State for more information at http://www.state.gov/s/wci/index.htm
34 For more details, see Gregory Stanton, International Campaign Proposal: Create a United Nations Genocide Prevention Focal Point and Genocide Prevention Center, presented at the Stockholm International Forum 2004: "Preventing Genocide: Threats and Responsibilities." Available at http://www.genocidewatch. org/proposalstockholm2004.html
comprehensive set of policy recommendations available to US policymakers.38 The debate following the report has been promising at various levels (Congressmen, Executive Branch policymakers, NGOs) and it is possible that in the next few years a new institutional architecture nationally and internationally might be supported by the US government in the area of genocide prevention. The process has been remarkably bi-partisan, and the richness of the debate might lend itself to practical solutions that embed new commitments into the regular fabric of the American decision-making processes. However, to date, few if any of the recommendations in the Genocide Prevention Task Force report have been implemented. The institutionalization process has involved other nation-states as well. Immediately a er the Stockholm Conference of 1994, Sweden created a full-time position within the Ministry of Foreign Aairs dedicated to genocide prevention. The rst and only her position was eliminated by the next Prime Minister person to ll that capacity was Monica Andersson. She was also a member of the Advisory Commi ee on the Prevention of Genocide which provided support and guidance to the work of the Secretary Generals Special Adviser on the Prevention of Genocide. This Advisory Commi ee was chaired by David Hamburg, President Emeritus of the Carnegie Corporation of New York, whose leading eorts to bridge the gap between scholarly work and policy have focused on conict prevention. Hamburg has also chaired the steering group established in 2006 to lead the European initiative to institutionalize an international center dedicated to analysis and research on genocidal risks and practical policy implementations of the Genocide Convention. Together with Ragnar Angeby, a senior diplomat from Sweden who contributed greatly to conict prevention policies over the years, Hamburg guided the explorations following the Stockholm Forum of 2004 that led to recent initiatives by the government of Hungary. The feasibility study on institutionalizing a genocide prevention center in Budapest has been a direct evolution of years of prior planning.39 What is to become the Budapest Centre for the International Prevention of Genocide and Mass Atrocities aims at functioning as a catalyst between policy and research on genocide prevention. The fact that the initiative by the Hungarian government has resulted in commitments by European and other governments is a hopeful development in the institutionalization of genocide prevention.
38 See Woocher in this volume for further discussion 39 See Cervini and Lakatos in this volume for more details.
The Budapest Centre could become the Genocide Prevention Center envisioned in Stantons 2002 paper presented at the Stockholm Forum of 2004.40 Other initiatives transcending the boundaries of policy and academic circles are emerging as well. The Genocide Prevention Advisory Network (GPANET), an international network of scholars and experts on the causes, consequences, and prevention of genocide and mass atrocities, was initiated by Yehuda Bauer, Ted Gurr, Barbara Har, and others in 2001. Initially advising the Swedish government to prepare for the Stockholm Forum, GPANET supported the initiative to establish the UN Oce of the Special Adviser on the Prevention of Genocide and has provided risk assessments and policy recommendations for all interested parties, including the UN, national governments and NGOs today. What is emerging is dissemination of knowledge and expertise through diusion of ocial and unocial boundaries across the global and regional levels. Indeed, we see states more active engagement in expanding the network and sharing the knowledge of genocide prevention. Regional Fora are the epitome of such development. They were rst launched in Buenos Aires in 2008, under the auspices of the governments of Argentina and Switzerland, drawing policy experts and leading scholars from Latin America and other parts of the world. The Regional Fora were designed to respond to the calls made by the UN Special Advisers on the Prevention of Genocide, Juan Mndez and Francis Deng, in order to address genocide prevention using regional institutions.41 Now the Regional Fora stage is moving to Africa, as Tanzania is ge ing ready to host the second one in March, 2010. Another experimental contribution to these emerging trends (scholarship, information management, and institutionalization) is the Engaging Governments on Genocide Prevention (EGGP) program. Born as week-long training workshops in New York and Washington D.C. designed for the representatives of UN member states, EGGP is also an a empt to cross-fertilize preventive knowledge and practices between academics and state ocials. EGGP is organized by the Institute for Conict Analysis and Resolution (ICAR) at George Mason University and the Advanced Consortium on Cooperation, Conict,
40 See note 34 41 See Fernndez in this volume for more discussion.
and Complexity (AC4) at Columbia University.42 EGGP has conducted 5 workshops since 2007, having trained 68 state representatives from 65 governments to date, and the next workshop is scheduled to take place in March, 2010.43 EGGPs long-term goal is to create a network of state ocials around the world dedicated to genocide prevention from within their respective governments. Such a network has never existed before and the challenges to its formation are numerous. However, so far, the EGGP program has produced a model for integrating both academic and political training on genocide prevention with the actual collective involvement of government ocials. In sum, it is reasonable to make a few observations regarding the emergent resources on our hands: Our collective understanding of genocide as a human problem is increasingly made possible by emerging scholarship; The prevention of genocide will rest on veriable, time-sensitive and space-specic datasets; The legal doctrine in trying the crime of genocide has been developing in international tribunals since the mid-1990s, through the ICTY
at The Hague, the ICTR in Arusha, Tanzania, and since 2002, the International Criminal Court; There is a growing number of institutions that are exploring ways to respond eectively to genocidal threats; and The availability of information relevant to genocidal violence will be of li le use if there is no response from policy makers in governments. In other words, we have now a far greater capacity to map genocidal episodes in real time and to compare them over time and space to identify trends and pa erns. We also have the capacity to revisit historical occurrences and to test hypotheses about prevention in ways that were unthinkable some years ago. What the emergence of all these developments reveals is our ever-increasing readiness and capacity to predict genocides and politicides. What are now needed are institutions where such analyses can be carried out in a reliable manner that will be considered authoritative by policymakers. Tools for genocide prevention need to be tested, and policy makers educated and organized to apply them to prevent genocides. There have been some recent successes such as the international pressure and mediation used in Macedonia, Kenya, and Guinea that have turned potential disasters into conict transformation. However, it must be recognized that nation-states remain central in the emerging architecture of genocide prevention. Genocide prevention is a political inquiry and takes political actions. Our preventive knowledge and resources therefore need further integration with the centrality of state functions state performance, state responsibility, and state capacity. State plasticity, the capacity of states to change over time, is o en undervalued in this respect. It is imperative to frame the genocide prevention debate as a fundamental contribution to state formation that is not only nominally in agreement with international norms, but that actually proactively utilizes new ways in which states can represent the interests, needs, and multiplicity of cultures of their populations. Nation states and genocide Most states do not commit genocide most of the time. State interest normally does not coincide with genocidal intent, and the predisposition of governments is generally non-genocidal. Stable democracies almost never commit genocide against their own enfranchised peoples. Relatively stable autocracies that lack exclusionary ideologies rarely com-
42 During its course of development, EGGP has greatly benefitted from professional advice and invaluable support from members of the Dynamical Systems Team: Peter Coleman, Andrzej Nowak, Robin Vallacher, and Larry Liebovitch (see http://www.dynamicsofconflict.iccc.edu.pl/index. php?page=home). Numerous others have also contributed to EGGP, most notably Lawrence Woocher as a co-facilitator of all the past trainings and Aldo Civico as a co-sponsor at the Center for International Conflict Resolution, Columbia University. 43 The inaugural session, initially called the Advanced Training on Genocide Prevention (ATGP), was conducted in January 2007 and received 13 government officials: Bangladesh, Burundi, Canada, Chile, China, Germany, Haiti, Republic of Korea, Mozambique, Nigeria, Poland, Sweden and Uganda. The 2nd session of EGGP took place in October 2007. The participants came from 14 countries: Armenia, Colombia, Cyprus, Egypt, Indonesia, Mexico, Nepal, Nigeria, Pakistan, South Africa, Tanzania, Thailand, the United Kingdom and Uruguay. The 3rd session was in May 2008, with the participation from 14 countries: Algeria, Brazil, Croatia, Democratic Republic of the Congo, Ethiopia, France, Ghana, Guatemala, Italy, Japan, Norway, Portugal, San Marino and Senegal. The 4th session was conducted for the first time in Washington, D.C. in January 2009. The 13 participants came from Argentina, Belgium, Bolivia, Botswana, Cte d'lvoire, Iraq, Latvia, Malaysia, Malta, Mongolia, Nicaragua, Sierra Leone and Timor-Leste. Finally, the 5th session was recently concluded in May 2009, with 14 state representatives: Angola, Barbados, Belize, Burkina Faso, Cte d'Ivoire, Hungary, Malta, Morocco, Papua New Guinea, Peru, Serbia, Spain, Turkey and Zambia.
mit genocide or politicide. Restraint from committing acts of genocide is a norm expected of a states own conduct. Genocide is neither pre-determined nor caused by factors that are beyond human choice. Genocide and politicide is an intentional, selective, collective, and sustained human pathology. It is intentional as the targeted victims are classied and dehumanized; capacity to kill them is organized; and strategies to exterminate them are planned and perpetrated. Genocide is selective because it separates victims from perpetrators; potential victims from possible perpetrators; victims from those who could help them. It is collectively sustained by organized systems because so far no individual has been able to kill multitudes alone. Despite its pathological nature, to its perpetrators, genocide is not usually irrational. There are reasons for states to be genocidal the main one being the acquisition and retention of power. Under certain circumstances, to commit genocide has seemed to be perfectly reasonable in the minds of its perpetrators.44 In other words, what is genocidal lies not in a state as a polity per se, but rather in a dysfunctional process in which the state excludes parts of its citizenry from the human rights that the state has the primary responsibility to protect. When states are becoming genocidal, they organize themselves in exclusionary forms. Genocide is dierent from riots, in that it is not an occasional aring up of violence nor is it an erratic activity. It is a phenomenon in which complex human systems are implicated, driven by state leadership. Past experiences demonstrate that no genocide occurs without the endorsement, active or tacit, of states. They identify threats within and respond to them accordingly, with the use of mass killing as part of the answer contemplated by powerful elites who come to believe that commi ing genocide best resolves the problems and threats, real or imagined, while they also believe that all the other alternatives are infeasible or impractical.45 Genocide is in this sense the manifestation of the rational exclusivity of genocidists. The more exclusionary and unrestrained the politys process is le in the hands of this elite group of people the more the state is prone to the risk of genocide. Genocide is made possible by both the presence of forces that make such acts possible and useful and the absence of alternative responses. There are processes in which genocide takes years to originate, emerge, and evolve to a massive scale
of killing.46 Therefore, states own connivance works in such a way that they fail to take actions at every single turn of evolving genocidal processes, where they could otherwise confront, intervene, or thwart those genocidists from planning or carrying out their actions. Let us not forget that Interahamwe means those who work together. Genocide is possible only when states are either dysfunctional or hypercontrolling and when genocidal violence, which is overwhelmingly uni-directional, does not encounter eective resistance. To speak about genocide is to speak about human intentionality, or a pathologically constrained and distorted human intentionality. To speak about genocide prevention is to speak about human responsibility, that which is commi ed and open to verication of the intentionality to be anti-genocidal. The role of states in genocide and its prevention must never be overlooked. For states to make conscious shi s from non-genocidal policies refraining from commi ing, supporting or accepting acts of genocide within their own borders to anti-genocidal policies acting unilaterally or multilaterally to prevent genocide wherever there is risk of it occurring, involves the very nature of state formation. The political inquiry of genocide prevention therefore examines states own being and orientation. It goes to the core of how states are supposed to function, especially with reference to their minorities and the need for political representation of all persons within their territories.47 All states can choose to refrain from being genocidal. Our collective work on expanding the scholarship, information systems, legal practices and institutions should be intentionally connected to shi ing states raison d'tre to be fully anti-genocidal. It is therefore imperative to pay a ention to basic duties of states as well as those of the international community. Should a state fail or refuse to fulll its duties to protect the human rights of its people, as stipulated by the responsibility to protect doctrine, other states, acting through multilateral institutions wherever possible or through regional alliances or coalitions, must nd ways to return the failing state to its responsibilities. The responsibility to protect, especially its rst pillar which is the responsibility to prevent, underlines the importance of
44 Manus Midlarsky, The Killing Trap: Genocide in the Twentieth Century, (Cambridge: Cambridge University Press, 2005). 45 Valentino, Final Solutions
46 Stanton, 8 Stages of Genocide 47 See more discussion on the conflict and politically active minorities in Ted Robert Gurr, Minorities at Risk: A Global View of Ethnopolitical Conflicts, (Washington, D.C: United States Institute of Peace Press, 1993).
peace enforcement and the duty to intervene in order to save human lives when there is a risk of mass atrocities.48 This emphasis is resisted or severely criticized in the name of sovereignty.49 Indeed, few issues in international aairs are as sensitive as the notion of sovereignty, for it remains the cornerstone of contemporary international relations. Nevertheless, although the concept of sovereignty is principally perceived from the perspective of law (i.e., within a framework permeated by regulations and vested with enforcement mechanisms erga omnes), the actual exercise of state sovereignty has always been more permeable than its strict legal denition would imply. State plasticity needs to be encouraged in making the norms of state responsibilities more embedded in the political culture and practices of all UN member states. Some states think of Macedonia under President Kiro Gligorov in the 1990s have used sovereignty through a constructivist approach. Because Macedonian national sovereignty needed to be asserted, international support, including military support, was requested. While genocidal violence was engulng the Balkans, the imperative to prevent further spread of that violence into Macedonia prompted a creative use of sovereignty to keep Macedonia out of the Yugoslav wars. However, while genocide prevention is central to the way states execute their policies and the responsibility to prevent needs be exercised, it should not be misconstrued as an invitation to foreign intervention or coercive external enforcement, but rather as an a empt to fully develop the internal political structures that will be stable, dynamic, and adaptable as needed to protect human rights and actualize human development. Examples of this transformation of states can be seen in Latin American countries in dealing with establishing accountability for human rights violations.50 The Kenyan crisis in 2008 also illustrates the importance of internal state functions, especially the role of a neutral, professional military. The military in
48 For more on the challenges to sovereignty with regard to intervention see Chapters 1 and 2 in The Responsibility to Protect (Report by the International Commission on Intervention and State Sovereignty, 2001). See also Sarkin in this volume for further discussion surrounding the Responsibility to Protect. 49 See how the UN debate unfolded at the General Assembly (see GA/10845, GA/10847), ranging from strong scepticism to full support, following the UN Secretary Generals report, Implementing the Responsibility to Protect (A/63/677). 50 Ellen Lutz and Kathryn Sikkink, The justice cascade: The evolution and impact of foreign human rights trials in Latin America. Chicago Journal of International Law 2, no. 1 (2001): 134
Kenya did not take part in political violence. Instead it refused to take sides and warned that its only role would be to protect constitutional democracy. Unlike in Rwanda, where the military led the genocide, the Kenyan military did not succumb to genocidal forces and fall into the abyss of escalating mass killing of ethnic groups, partly because the military command operated within the functioning parameters of their state duties. Supporting states learning from the past While we emphasize the need to address the functionality of state responsibility at present, there is also a need to expand state capacity for learning, especially from genocidal regimes in the past. Educational programs must teach people around the world and preserve the memories of genocidal states that killed millions in order to realize their political projects. They should also recognize the heroism of rescuers who resisted such regimes. Besides the responsibility to prevent genocide, each state has the responsibility to learn from political violence in the past.51 For instance, the way in which Argentina looks at its own past is extremely important to what the new Argentinean state will look like in the future. Learning is o en denied in the dysfunctional educational systems of genocidal states. We know that all perpetrators learn while doing the genocide, and the only learning that is accepted in such circumstances is how to carry out genocide and how to do it even be er. People who commi ed genocide must have had some learning processes in which they evaluated execution plans that were most eective in terms of cost, strategy and outcome. Our understanding of these episodes is increasing, thanks to the emergent resources of scholarship, information systems, legal practices and institutions. Yet we cannot forget the fact that there were anti-genocidal forces in the midst of genocides, and we need to share the learning processes of those who fought against the genocidal forces, as in the cases of rescuers and non-violent resistance movements. Our learning of the processes in which those rescuers learned rescue behavior and made sense of it needs be even more eective than genocidists own insidious propaganda. Rescuers faced the choice during genocide in stark terms: prevent or promote. Genocide is in a sense data of human experience that can become intelligible when we understand it correctly. Data does not speak for itself, but rather it is understood through operations of experiencing, understanding, judging and deciding. The rescuers
51 See Feierstein in this volume for more discussion.
looked at genocide as data dierently, when faced with an option of whether to prevent or promote the genocide, and decided to resist it, even risking their own lives. They did ordinary things in extraordinary circumstances. In the most harrowing environments, such as those of Chambon-sur-Lignon or the Confessing Church in Germany, they said No to racist propaganda which spiraled out of control and degenerated into genocide. Their decisions and behavior represented a moral choice in the face of violence. They refused the orders of the state. By their actions, they refused to remain silent. Rescuers are the expression of the unconstrained human freedom to do good. They said No to the connivance of state structures to save victims and to liberate their own responses to genocide. Perhaps it is not an overstatement to say that anyone who truly wants to understand genocide prevention must build on the rescuers experiences. While rescuing seems to be insucient or rare for many, a er every genocide, rescuers demonstrate that 1) no human system is irresistible and 2) alternative human systems can be created to resist genocide. The rescuers interrupt genocide. They demonstrate that human creativity can constructively combat even the most murderous states. Rescuers move counter to the logic of genocide. They are proof that death and destruction are not inevitable. They invite us to think about and actualize rescuing societies or anti-genocidal societies, by reminding us of the power of our own choosing. A precise understanding of the rescuers should serve as the foundation of the prevention system, especially at the early stage of genocidal processes. Prevention is in many ways before rescuing happens. We should not count on the good faith of rescuers to prevent genocide. Much more robust institutions and a century of anti-genocidal education will be needed to end genocide. Learning from rescuers may teach us that violence can be opposed with ingenuity and that courage can overcome systems of bureaucratic tyranny.
25
Genocide Prevention in Historical Perspective
Academics love arguing about denitions. But denitions, certainly in the area of history and politics are, per denitionem, abstractions from reality, and reality is always much more complicated than our denitions can be. We then try to adapt reality to our abstractions, instead of changing our denitions to t reality. This is what happened with the concept of genocide, which was coined by a Polish Jewish refugee lawyer in the US (Raphael Lemkin) in 1943, and published in 1944. It was, as we all know, adopted, but with signicant changes, into the UN Convention on the Prevention and Punishment of the Crime of Genocide, in December 1948. The Convention was the result of horse-trading between the West and the Soviet Union, and is very problematic. It does not provide for an eective preventive or corrective procedure. When a tragedy is recognized as being genocide, the United Nations, or in eect the Security Council, are supposed to deal with it. But the Security Council, with its ve veto Powers, is hamstrung. If one or more of the veto powers, or a powerful combination of nonveto countries, have economic, political or strategic interests in the area in which the tragedy happens or is likely to happen, then action becomes impossible in practice. This is what is now happening in Darfur, where Chinese oil interests, and the support of Russia and the Arab League for the genocidal regime in Khartoum, make it impossible to stop a genocide that has caused, according to the analyses of Eric Reeves, probably over 400,000 deaths. A slow genocidal a rition is continuing: 2.7 million farmers, chased away from their villages, are languishing in displaced persons camps, a continuing humanitarian crisis is killing o children, and very large numbers of women are targeted for sexual assault; all resulting in the destruction of families. In Rwanda, a lack of interest by such a combination of powers and countries paradoxically led to a similar result. The United States refused to
1 Yehuda Bauer is Professor Emeritus of Holocaust Studies at Hebrew University, Jerusalem, and Academic Adviser of Yad Vashem. He is a Member of the Israeli Academy of Science, and author of some fourteen books, mainly on the Holocaust. His latest books are Rethinking the Holocaust (2001) and The Death of the Shtetl (2010).
recognize the tragedy as genocide in order not to be forced to do something about it, with no immediate American interests being involved. Also, American failure in Somalia just prior to the Rwandan genocide, made it decide against any action to prevent the tragedy, in order to avoid any American casualties. France supported the perpetrator side, and other countries were not interested enough to intervene. Conversely, in Kenya, where killings already presaged an approaching tragedy, no one had any major economic or strategic interests, but a situation of murderous ethnic cleansing could have meant widespread unrest in neighbouring countries and the destruction of a potentially prosperous trading partner. No one had an interest in sabotaging preventive action. The result was that the UN could act consensually, and Ko Annan could negotiate a compromise of sorts, though the danger has not passed by any means. The conclusion is clear: the UN can intervene, possibly successfully, when no major power interests are involved, one way or the other. Circumventing the UN and intervening unilaterally involves great risks. NATO intervened in the Balkans, but it seems that was done largely because of a clear interest of the EU and the US to do so and Russia, the main supporter of Serbia, could not risk a confrontation with the West. In Iraq, unilateral American intervention almost ended in total disaster. The Security Council would then be the bvious, potential solution. But ironically, because of its present make-up, it usually is the problem. According to the Convention, genocide is dened as the intent and action to annihilate ethnic, national, racial and religious groups as such, in part or in whole. Then ve elements are mentioned specically, each of which dene a human tragedy as genocide: killing members of the group, harming members of the targeted group physically and/or mentally, creating conditions of life that make their survival impossible, preventing births, and kidnapping children. The idea to include actions against political, social or economic groups was rejected because its acceptance might have caused a number of powers to be accused of
genocide. This exclusion makes li le sense. Thus, when the Soviet regime decided to annihilate the kulaks as a class (that was the terminology that was used), the kulaks were not a real group with any cohesion. A kulak was, basically, someone who had two cows, not one; except that if he had one cow or none - but opposed the collectivization process, he became a kulak, and if he had two cows but was a Party member he was not a kulak. However, the persecution, starvation and murder of huge numbers of people branded as kulaks transformed that virtual group into a very real group of victims. It has been proposed by Barbara Har2 that the murder of such political and other groups, real or virtual-becoming-real, be called politicide, and be included in the concept of genocide, beyond the denition of the Genocide Convention. Today, most academics accept that. Another problem with the denition in the Convention is that the ve elements that are supposed to make up an act of genocide are unclear. Is only one element needed to dene an act of genocide? Does one perhaps need two or more of these elements for it to be considered genocide? And when hundreds of thousands of Jews were forced into gas chambers, did that create conditions of life that made the existence of the group impossible? The Holocaust of the Jews and the Zaglada of Poles (destruction in whole or in part) were central in the minds of the people who wrote the Convention, but that did not prevent the denitions from being fairly complicated. For instance: what do we mean by racial groups? Scientically, there are no races, though there is racism. All humans originate from East Africa, some 150,000 years ago, give or take some tens of thousands of years, as DNA probes have established. Skin color and shapes of bodies were developed by very minor mutations since then. There is just one human race. Dierences between cats are much larger than those between humans. However, while racism certainly exists now there was practically none in the ancient world, where free Africans who worshipped Roman gods could and did become Roman citizens. In the Bible, the prophet Amos explicitly talked about equality before God of people of dierent colors. Racism developed at the end of the eenth century, with the entry of the Iberian colonial powers into West African
2 Barbara Harff and Ted R. Gurr, Towards an Empirical Theory of Genocides and Politicides, in: International Studies Quarterly, 32/3 (1988), pp. 359-371
coastal areas. Blacks were enslaved, usually by other Blacks, and sold to Arab slave traders, who then sold them to white merchants on the coast of Africa. From there they were transported to the New World under horrible conditions, with millions of victims dying as a result. In order to justify these actions, an ideology developed that dened the dierences between slaves and their tormentors in terms of skin color. That was the origin of modern racism. Before that, the Catholic Church for instance venerated a black saint, St. Mauritius, whose statue can be seen in many Gothic churches all over Europe. Racist behavior became legalized in post-1492 Spain by the rule of limpiezza de sangre, whereby people of Jewish or Moorish (Arab) origin could not occupy high-level positions in Church and State. To include the term racial groups in a UN document was understandable in 1948, when every ethnic or national group was called a race, but it is unacceptable in 2009, because it might be misunderstood to mean dierentiation between people on the basis of color of skin, and thereby inadvertently support racism. There is another, well-known problem with the Convention: when it talks about intent, how can anyone prove intent if the relevant archives are closed, or if the instructions to murder were transmi ed orally? Hitler never gave a wri en order to murder all the Jews. You judge intent by the result and by circumstantial evidence, and by documents that make it clear there was intent without saying so explicitly, as was done by the International Criminal Court dealing with the Srebrenica case, and indeed elsewhere as well. So, do we need the Convention? Yes, I think we do. It has become part of international law, and although it has never been applied, the possibility of its application hangs over the heads of actual or potential perpetrators. And, it is something to build on, although without illusions. We cannot be satised with the Convention; we have to consider the real world of economic and strategic interests, the world of nationalisms and power struggles. My advice is to approach it with what I would call morally based practical cynicism. I dont believe in a good world or in utopias; but I do believe we can make the world a tiny bit be er than it is today, and that is our real purpose: it is something worth devoting ones life to. There is another issue here that is worth touching on, if only briey. There is a dialectical development one can discern in international politics reecting two contradictory global trends. A tendency towards greater unication, on the one
hand, and an opposing tendency towards greater autonomy and independence of ethnic and/or national groups, on the other hand. The EU is an obvious example of the rst tendency. Slowly, Europe is moving towards some sort of a federal system. This is motivated largely by economic considerations, but is also directed towards a defensive stand vis--vis a perceived, potential threat from a resurgent Russia. From the perspective of genocide prevention, the greater the possibility for a European federal arrangement, provided that it is ecient, the smaller the danger of an inter-ethnic or inter-national outbreak of mass violence, especially of course in the Balkans. However, in the same European context there are also a growing number of ethnic/national, and even religious, groups and minorities that demand autonomy or independence. The Scots and the Welsh in Britain, the Basques in France and Spain, the Catalans in Spain, various ethnic minorities (e.g. Hungarians in Slovakia) and so on, struggle for various forms of autonomy or independence. Cultural autonomy is on the agenda for the 23 million Muslims in Europe as well. When one moves to other parts of the world, these contradictions assume threatening proportions. There is, arguably, a chaotic move towards greater collaboration in Africa, and a slightly less chaotic one in South-East Asia. The Arab League, a creation of British colonialism in 1945, has developed into a permanent body with some inuence on the international scene, and a lobby at the UN. But all this is being threatened by a putative development of ethnic separatism in Africa and Asia, and in a dierent form in Latin America as well. African states are very largely the result of the division of the continent by the colonial powers of the 19th century, which completely disregarded linguistic and ethnic boundaries. Independence was achieved within these articial borders. Recently the development of globalization made some, or perhaps many, of these ethnic groups aware of their specic identity, so there is a danger that ensuing struggles for recognition of these entities might cause increasingly violent conicts, and a threat looms of dissolution of existing states, and of murderous confrontations. We are seeing this in Kenya, and to an extent in Chad, the Cte dIvoire, Ethiopia, and of course in Nigeria. Potential dangers exist in South Africa, and a number of other African countries. Ethnic/national groups are ghting for autonomy or independence in Burma, there are tensions in Iran, the Kurds are ghting for some sort of independence in Turkey, Iraq, and Iran (marginally also in Syria), and the multi-ethnic Sudanese
situation is well known. If this rising ethnic tension spreads to India, Pakistan, and other countries, we would be faced with a tremendous problem. Federal solutions, multi-ethnic accommodation within existing state frameworks, and overall unication processes could and perhaps should be furthered in order to avoid this kind of danger. The whole issue has hardly been treated in research, and politicians are dealing with it piecemeal, in specic situations, apparently without being aware of the ticking of a potentially very large clock. Briey, what might be done is to use the tendency for unication and globalization as an antidote to the situation as I have tried to describe it. The ideal development would be, I believe, towards a kind of Verfassungspatriotismus (loyalty to a constitution - Jrgen Habermas), a loyalty and identication within a multi-ethnic and/or multicultural entity towards and with a state-form based on a democratic constitution or/and a shared past, imagined or real. This is the way the US developed. There is a strong national, some might say nationalistic, identity in the US, based on loyalty to a constitution that is almost two-and-a-half centuries old, and does not necessarily always function without creaks and crises (and a bloody Civil War). In Canada, a parallel development seems to be taking place, although there is a constant threat of ethnically based Quebecois separatism. India has been held together partly because of the legacy of British colonialism, and partly because of an invented, but nevertheless strong feeling of togetherness. However, there are worrisome signs of stresses, in Assam (Asom), in the tribal areas of central India, and elsewhere. A rise in ethnic/national consciousness could become dangerous and threaten Indias unity. I would claim that all this has to do with is a mistaken perception of the direction globalization leads us. From Benedict Anderson on, the idea took root that we are in an age of declining nationalism, and that the future belongs to non- or multi-national structures. The problem is not that this is wrong, but that it is only partly true. Western economic interests indeed tend towards globalization. The ethnic/national identity of the captains of industry (or of oil, or raw materials, or shipping, or banking, etc.) is generally uninteresting. But that is not the case with China. The Chinese identity is the basis from which Chinese imperialism, based on economic interests, begins. There is no linear development; is dialectical, and ethnicity and nationalism are very much alive and kicking. They present a looming danger of conicts that could
become genocidal and have to be prevented. This is a central issue that has to be addressed. Like many of my colleagues, I too believe that the argument about denitions of genocide is largely futile and may be counter-productive. Yet, in order to get anywhere, I think we should be clear on what exactly we want to do. We need to dierentiate between conicts and genocidal situations; it is the la er that we want to deal with. Conicts, I would suggest, are struggles between two or more contestants, with none of whom being able to exercise enough power to annihilate its enemies. Conicts can potentially be solved through negotiations, mediation, intervention from outside to eect a compromise, or a relative victory by one party that will enable coexistence with the defeated group or groups and possibly reconciliation with them. But when a conict escalates into a confrontation in which one party has overwhelming power, and the others li le or none, a genocidal situation may develop. We then talk about full-scale genocides according to the Genocide Convention, about the annihilation of groups as such, about politicide, about ethnic cleansing when the purpose is to annihilate the targeted group, and about genocidal ideologies aiming at world control to be achieved by mass murder that has the characteristics of genocide. The terms some colleagues of mine and I use are not denitions but rather descriptions, but they are pre y clear. My colleague David Scheer will call them mass atrocities, someone else calls it democide, that is mass murder of humans, I may call it genocidal situations, but we all basically mean the same thing: intentional mass destruction, as such, of human groups, whether these groups are real or contrived. Versions of such a denition have been around for a long time (see for instance the work of Frank Chalk and Kurt Jonassohn3), and they seem to me to be a practical way out of the denition controversies. Ideological movements are important elements that can acquire tremendous power and intend to control the whole world. They may be motivated, o en unconsciously, by elements that have their origin in economic, social and political developments, but the ideology becomes independent and can be a major motive force leading to mass violence and genocides. This is true of three major movements that appeared on the scene in the wake of World War I: Soviet communism (the Bolshe3 Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide, 1990
vik revolution, 1917), National Socialism (Hitlers rst political u erance, 1919), and Radical Islam (1928, the foundation of the Muslim Brotherhood in Egypt). They all were (are) intent on conquering the globe by force for an exclusivist and totalitarian world view. They all opposed any participatory governmental system (Sunni radicalism has advisory boards, shura, nominated by clerics), and especially any democratic form of government; they all, in dierent ways, negated national independence of medium and smaller groups or states; two of them are explicitly anti-feminist; all three were, are, or became, radically anti-Semitic, seeing the Jews as the satanic element that has to be eliminated; and they all engaged or engage in mass murder and genocidal activities. There are major dierences between them, to be sure. But they were or are based on the worship of force and violence. Radical Islam today is a real force within a huge population (1.3 billion Muslims), though the core is (still) a relatively small minority. It is growing, however, and its ideas are penetrating the Muslim mainstream. Western policies based on force are, in my view, futile. Radical Islam as a genocidal threat can only be countered, in Europe by integration of the Muslim immigrants into European society, and in the Muslim world by an alliance with anti-radical Muslim elements. To return to my main theme: I think we all realize that we are dealing with a continuum of a certain type of human action, so much so that the boundaries between mass murder, ethnic cleansing, genocidal massacres, and full-scale genocides cannot be accurately dened. They are uid. Nor can one make a clear case for dening numbers: when is it mass murder, and when is it genocide? In Srebrenica, some 8,000 men were murdered. In the Holocaust, in June, 1944, up to 12,000 Jews were shipped to Auschwitz daily. Are these actions comparable, and do we call them, equally, genocidal events? I think that yes, we should, but at the same time we should be well aware of the tremendous dierences between them. That realization means that they should be treated with policies that will almost necessarily dier from one another. To argue for dierences between conict and genocide, as I did above, may sound articial, as all such a empts necessarily are, but considering political reality, the debates are practical enough. If the above dierentiation is adopted, one can see how genocidal situations may de-escalate into manageable conicts, when the targeted group or groups gain enough power either by themselves
or through third-party intervention, not to enable the perpetrator group to carry out mass atrocities. For example, the Darfur situation could de-escalate into a manageable conict, if either the targeted African groups manage to unite and present a front that cannot be defeated by violence and the Sudanese government and their local allies must compromise or, if the UN, AU, or another combination of third parties force the two sides to negotiate for a real compromise. The same applies to East Congo, or to possible genocidal threats in the Balkans, the Middle East, or any other area. Where does the propensity for humans to kill their own kind in large numbers come from? In my humble view, we are predatory mammals, because we live by eating the esh of other beings, and we are collectors of fruit of the earth and of trees. We will not go out into the streets to hunt mammoths as our forefathers did, but we will go into a supermarket and buy meat and sh from the shelves. In the end, it comes to the same thing. But we are weak predators. We do not have the teeth of tigers or the claws of bears, so we must act in groups, herds, which today we call ethnicities, or tribes, or nations. We need a territory where we can concentrate our herd, so we are territorial predatory mammals. When another group enters our real or virtual territory, we have four options: we can absorb them, because they may strengthen us; we may let them in and enslave them because this may be useful for us; we may order them out, which they may or may not do; or we can kill them. The instinct of murder is the result of the fear of being enslaved or killed ourselves, or of losing our identity or our capability to secure our economic, social and political survival. We are therefore the only predatory mammals who kill their own kind in huge numbers. The instinct to do this is within all of us under certain conditions, with possibly dierent parentage and dierent socialization, we may become perpetrators. All of us have a li le bit of a Himmler or an Eichmann within us. Therefore, when you look at the short history of mankind only some 9,000 years of so-called civilization and 140,000 years of development towards it it is a history full of genocidal murder. The Decalogue contains the commandment thou shalt not murder. It does not say thou shalt not kill as the St. James version says, because while murder is prohibited, killing is permi ed, even approved of, as when young people in funny clothes called uniforms are sent out to kill other young people also dressed in funny clothes of a slightly dierent
color. Killing is permi ed murder; is forbidden killing, because no society can exist that will make killing a social norm. Therefore killing within a social herd is permi ed only as individual punishment for major transgressions; otherwise it becomes murder. Murder is permi ed outside the specic human herd, and then it becomes killing. We seem to be programmed for this behavior. Very recently, a Neolithic burial was discovered in a place called Talheim in Germany. A large number of humans, men, women, children, even babies, were murdered there by other humans, as the examination of the skeletons showed. This was clearly the annihilation of a group by another group, some 20-30,000 years ago. The instinct that leads to mass murder of groups is as old as the human race, and probably older. Is it therefore hopeless to try and limit genocidal behavior, or even stop it? I do not think so, because we have the opposite instinct within us as well. Hobbes, when he said that humans are basically destructive, was only partly right. We cannot exist outside our herd. We depend on cooperation, in hunting and gathering, and by extension in all occupations that ensure our survival. We developed social organization, and that demanded, from our earliest beginnings, the development of feelings of compassion, readiness to cooperate, sympathy, love, and care. We are even prepared, under certain conditions, to risk our very life to rescue others; we do that because we may thereby gather a reliable friend who will identify with us out of gratitude, and we develop religious or secular humanistic ideologies to explain to ourselves why we do that. We develop moral a itudes that become a solid part of a desired order of things, because otherwise individual and social existence would become unbearable. There is therefore a constant struggle within us and between our groups about the ways to solve our conicts and genocidal threats, a struggle which is based on a conict between these two basic a itudes that we seem to have developed into instincts. Some would argue that they are transmitted genetically recent ndings of anthropologists have found that babies react to needs of others by a show of a desire to help; if that is true, it would show that the positive instinct, an instinct that seeks to enhance all human life, exists alongside the negative one, that selects only an in-group to continue living. There is indeed a possibility that we may follow our instinct for the preservation of life for ourselves and for others, and limit the opposite tendency that will lead us to Srebrenica, Rwanda, and nally to Treblinka.
This brings up the complicated issues of international law, and the moral teachings that underlie it. Morality is a social convention based on the need to maintain society, but it develops to transcend that and becomes a super-structure that exerts a very important inuence over the socioeconomic and political basis (to use Marxist terminology and turn it on its head). International law did not begin with Grotius in early modernity, but can be discovered, for instance, in the Tel-El Amarna correspondence of about 1400 BCE. I would argue that, to this day, it is based on a consensus that the preservation of individual and collective life depends on agreements how social units, and the individuals that make them up, should behave in order to preserve a modicum of bearable existence. The problem lies in the breadth of the consensus. International law is wonderful when states and individuals observe it. But the means of enforcing it are not very strong or eective. There certainly is progress, and it is much more enforceable today than it was a hundred years ago. But the global dangers have grown, too, as has the interdependence of human societies, and the impasse inherent in the Security Councils structure make it extremely dicult to enforce international law. It cannot be enforced in Darfur, or in Burma, or even in Zimbabwe, but places like these are exactly the places where such enforcement is more essential than elsewhere. More and more institutions are being established to make international law more complicated and more encompassing, but its eectiveness is thereby not necessarily enhanced. As in the case of conicts generally, it is enforceable mainly in societies where the major international powers have no interest in preventing its application. When such interests come into play, however, international law is circumvented. The crucial thing therefore is those interests. International law certainly should be developed and made into a more eective tool, but if we do not prepare the ground for such eective use by addressing the world of practical politics, we are not going to get very far, though we may enjoy the talkfests that result from such an approach. These are, I believe, not theoretical considerations, but very practical ones. Where do they lead us, and what can be done? In the present situation, to reform the UN and its Security Council is a hopeless task. It has been a empted, and it has failed. To improve the Genocide Convention is equally impossible, as the General Assembly will never agree on an alternative version. Do we therefore give up on the UN structure? That would be a totally inexcusable mistake. The UN is the forum
where the dierent interests meet, and where compromises and policies can be discussed and possibly agreed to. The UN may not be pre y, but it is ours, and there is no alternative to it. How then do we square the circle? There is, I believe, no simple panacea or recipe, but a number of routes exist that may be a empted. Let me detail them: One Scientic, quantitative and qualitative analyses that will assess the risks of future mass atrocities and make them available to policy makers. Such analyses exist already, and should be further developed. Two Arousal of public opinion in those countries where a free or relatively free media culture make that possible, in order to inuence governments to take a stand on prevention of mass atrocities that are taking place and will most certainly take place unless at least partial prevention succeeds. Three Targeted educational eorts involving public servants in democratic and semi-democratic countries diplomats, government bureaucrats, military and police personnel, media people, academics to make them aware of the risks of mass atrocities and genocidal threats for everyone in our interrelated societies that increasingly depend on each other. Such educational eorts may hopefully penetrate upwards into decision-making groups. Four Use of UN machinery for all this, and working to inuence regional organizations recognized by the UN, such as the OAS, the OAU, ASEAN, EU, and possibly others, to impact on the Security Council and/or to act themselves in the prevention of genocide. Five Establishment of a World Humanitarian Fund, despite or perhaps because of the present world economic crisis, to be ready at any moment to deal with saving people from starvation and disease during violent conicts and genocidal threats that will inevitably be repeated in the foreseeable future. Six A empting to mediate between the mutually conicting institutional jealousies of relevant NGOs in order to create a viable and more or less united NGO front to impact on the Security Council and the regional organizations. Seven To do what was a empted in December, 2008 in Buenos Aires, at the initiative of Switzerland and Argentina, namely to create regional groups of governments that transcend borders of conicting ideologies and political approaches in order to prevent mass killings everywhere on this globe; to expand this initiative to include other regions South-East Asia, South Asia, the Mediterranean, Africa, Europe, North America; and to try
and organize governments in these regions to join a major lobby at the UN dealing with prevention of genocide, not just by some NGOs and some individuals, but by governments. Eight To use all available diplomatic means to constantly engage major powers, and groups of smaller ones and present to them the dangers of closing their eyes to genocidal threats. Such diplomatic action must under no circumstances be based on moral sermonizing, because that will achieve the opposite end though the action, and the diplomats that will initiate them must be motivated by a deep moral outrage at the continuing mass murder of human beings all over the globe. Such diplomatic steps must be based on a careful analysis of the realities of economic, political and military interests involved in each situation, and will have to take into account the internal stresses and problems in the societies of the powers one tries to engage. Such analyses can then be utilized to make diplomatic engagement more promising. The best chances of such action lie, paradoxically perhaps, with the smaller nations that are relatively innocent of major economic or strategic interests. Finally, there is the vexed problem of comparing genocides or genocidal situations, genocidal massacres, or mass atrocities involving whole groups (as such). There is a burgeoning bibliography of works dealing with the topic. Are these events comparable? How can one compare the destruction of Carthage, the annihilation of the Buddhists in India at the hands of invading Muslims, the annihilation of Isfahan by the Mongols, the mass deaths of African slaves transported to the New World, the Armenian and Herrero genocides, the Holocaust, Cambodia, and Rwanda? I do not think that a proper analytical base has emerged so far, but brilliant minds are working at it, and they will probably come up with guidelines for comparison that will make the task less daunting. This is not the place to go into details, but it is clear that any preventive strategy must take the issue of comparability into account. My subjective perspective leads me into an a empt to see how one can analyze the main elements that make up any particular case one wants to study. Let me take Rwanda as an example. Hutu and Tutsi are imagined ethnicities. They are actually dierent social classes that emerged in pre-modern Rwanda and solidied into ethnic groups, though they speak the same language and follow identical religions today, Christian denominations. German and Belgian coloni-
alists utilized these social divisions to divide and rule, supporting, rst, the Tutsi minority and then, in the last stages of Belgian rule, the Hutu majority. The disadvantaged Hutu in what was previously the Rwandan monarchy were joined by Hutus from the area in modern Rwandas Northwest that had never been part of the old Tutsi monarchys territory. Upon independence, economic rivalry and power struggles led to repeated outbreaks of mass violence. Hutus predominated, and the victims were very largely the be er-educated and more prosperous Tutsi minority. An ideology (Hutu Power) developed to justify the repeated massacres, charging the Tutsi with being foreign (as classical Others) exploiters. A dictatorship by elements from the formerly independent North-West caused Tutsi and opposition Hutu refugees in Uganda to organize an armed force that invaded Rwanda in 1990. Attempts at conciliation, largely led by outside forces and supported by local Hutu opposition to the dictatorship, having failed, and with the Tutsi Army advancing from the North, genocide was planned and executed by special militias supported by the Army and certain civilian elements. It was done, usually, using fairly primitive weapons, but utilizing the very highly developed local bureaucracy and a major radio station that incited and directed the perpetrators. This, at least, is what one may learn from the many existing analyses. I would argue that every one of the following elements can be found, in comparable form, in some other genocides (including the Holocaust). Massacres and other violent conicts preceded genocides in O oman Turkey and many other places. Bureaucracy is an essential element in most genocides. Special murdering units can be found in many other cases. Fear that the targeted group may join a foreign invasion can be found, e.g. again in the Armenian case. The economic element is likewise present in many other cases. Comparisons on bases such as these have already been made (Ted. R. Gurr4). They could well be expanded and be er identify areas prone to genocide. The Holocaust goes beyond that and contains elements that cannot be found prior to its time. It contains many of the elements outlined above, and others that appeared in genocides and genocidal situations that preceded World War II. I have detailed some of the new elements elsewhere (e.g. in Rethinking the Holocaust, Yale UP, 2001), but
4 Ted R. Gurr and Barbara Harff, Ethnic Conflict in World Politics, 1994 (2nd ed., 2004)
very briey they include what I call totality, universality, non-pragmatic ideology, a racist content, and more. By totality and universality I mean the stated intent to kill every single person of the targeted group everywhere on earth, an intent that can be documented and that has no historical precedent. By non-pragmatic ideology I mean the fact that the Jews had neither a territory nor an army, and in fact had no collective political representation that could have endangered the perpetrators. A detailed analysis has shown that they killed the Jews not to get their possessions, but acquired their possessions in the course of rst deporting them, and then killing them. They killed Jewish slave laborers building their roads (e.g. Military Road No. 4 in the Southern Ukraine, in 1942) while they were actually building them; they killed their Jewish slave-armament workers (e.g. in Berlin, they deported them in late February 1943, after Stalingrad, when they tried to get as many workers to produce arms as they could), and so on. There is no precedent that I know of where huge numbers of people were killed for purely ideological reasons that had no pragmatic basis in fact, the killing was anti-pragmatic, anti-modern, and anti-cost eective. There are more elements like that. This does not mean that the Holocaust was in any sense unique because uniqueness would indicate that it cannot be repeated. But all human actions can be repeated; never exactly, but approximately. The Holocaust was unprecedented in a very radical way, which means that it is a precedent that can be repeated, not in exactly the same way to be sure. In fact, some of these unprecedented elements have already been repeated since then (thus, Hutu Power wanted to murder every single Tutsi they could nd in Rwanda they did not dream of extending the genocide into neighboring countries). The Holocaust presents the most extreme form to date, not absolutely by any means, of a general human malady. Genocide prevention ultimately means to remove humanity as far away as possible from that extreme form of mass murder. The conclusion is that we must compare and we can compare, but we have to be careful to stick to a scientically veriable analysis that will help us to identify elements that may be repeated in any situation we try to look at. An American sociologist estimated that between 1900 and 1987 the dates were chosen arbitrarily 169 million civilians and unarmed POWs were murdered by governments or political groups; 34 million soldiers fell in ba le during that period, which included the two world wars, so that four times as many civilians died as soldiers. 38 out of those 169 million died due to genocide as dened by the Convention. Even if these estimates are, say,
ten percent too big or too small, it does not really ma er, except to the victims. We are faced today with Darfur and Congo, and we will most certainly be faced by other tragedies tomorrow. We cannot avoid future genocides unless we avoid them. This is a tautology, but the advantage of a tautology is that it is true. This one certainly is.
33
What is Genocide? What are the Gaps in the Convention? How to Prevent Genocide?
W A. S
1
The Convention for the Prevention and Punishment of the Crime of Genocide was adopted in Paris, on 9 December 1948, at the third session of the United Nations General Assembly.2 It entered into force slightly more than two years later, on 12 January 1951, a er obtaining the requisite twenty ratications. Interest in the Convention and in the legal aspects of genocide has grown dramatically in the past ten years, a part of the proliferation of activity in the eld of international criminal law. There have been more important judicial pronouncements on genocide in the past ve years than in the previous y-ve. At the same time, the legal signicance of genocide has probably declined, a phenomenon related to the dramatic expansion of the related category of crimes against humanity. Today, there are few if any legal consequences in identifying an act as genocide as opposed to describing it with the somewhat broader and more exible label of crimes against humanity. Yet for victims of atrocity, describing their persecution as genocide is viewed as a badge of honour, and denying this to them is o en treated as trivialisation. Are there gaps in the Genocide Convention? This is reminiscent of frequent calls in the academic literature over the past sixty years for amendment of the Convention, and of the persistent complaints of blind spots and shortcomings. Such discussion overlooks the historic context and signicance of the Genocide Convention. It was the rst human rights treaty of the modern system, codifying an international norm that protects the right to life and to existence of national, ethnic, racial and religious minorities. The Convention establishes important principles in the areas of prosecution and prevention that have since been amplied and developed
1 William A Schabas is director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where he also holds the professorship in human rights law. He is also a Global Legal Scholar at the University of Warwick, School of Law, and professeur associ at the Universit du Qubec Montral. He is the author of nineteen monographs and more than 275 articles dealing with international human rights law and international criminal law. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277
in other instruments and institutions. Article VI constitutes the starting point of the Rome Statute. Questioning the gaps in the Genocide Convention is like speculating on improvements to Picassos Guernica or Marc Anthonys eulogy or Seigfrieds funeral music, or asking whether new ingredients should be added to a classic dry martini. The Genocide Convention is what it is: a seminal development in international law, an armation of important principles, a reection of the values and standards of its time but at the same time the clear inspiration of much that has followed. It has no gaps. Genocide is, rst and foremost, a legal concept. Like many other terms murder, rape, the it is also used in other contexts and by other disciplines, where the meaning may vary. Many historians and sociologists employ the term genocide to describe a range of atrocities involving killing large numbers of people. But even in law, it is imprecise to speak of a single, universally recognized meaning of genocide. There is a widely accepted denition, rst set out in article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. Like most legal denitions, its language is subject to various interpretations, and important controversies remain about the scope of the concept, even within the framework of what is a concise and carefully-worded denition. The crime of genocide has been incorporated within the national legal systems of many countries, where domestic legislators have imposed their own views on the term, some of them varying slightly or even considerably from the established international denition. As a result, even in law, one can speak of many denitions or interpretations of the concept of genocide. The term itself was invented by a lawyer, Raphael (born Rafa) Lemkin. He intended to ll a gap in international law, as it then stood in the nal days of the Second World War. For more than two decades, Lemkin had been engaged at an international level in an a empt to codify new categories of international crimes involving atrocities commi ed against vulnerable civilians. Even before Lemkins time, international law recognized a limited number of so-called international crimes. As a general rule, they were so designated not because of their shocking scale and extent, but for more
mundane reasons, namely because they escaped the territorial jurisdiction of states. Piracy is the classic example, a crime commi ed on the high seas. Lemkin and others argued from a dierent perspective, proposing the recognition of international crimes where these represented serious human rights violations. The beginnings of this were already apparent at the time of the First World War, when Britain, France and Russia warned that they would hold perpetrators to account for these new crimes of Turkey against humanity and civilization. But the idea that a state could be liable for atrocities commi ed against its own nationals remained extremely controversial, and it was this gap in the law that Lemkin worked to ll. His initial proposal evidenced a much broader concept of genocide than what was eventually agreed to in the 1948 Convention. Lemkin actively participated in the negotiations leading to the Conventions adoption, and while he would no doubt have hoped for a somewhat dierent result, he cannot be detached from the Convention denition. Indeed, following its adoption he campaigned aggressively for its ratication. Lemkins famous proposal, contained in a chapter entitled Genocide in his book Axis Rule in Occupied Europe, called for the prohibition of genocide in war and peace. Lemkin insisted upon the relationship between genocide and the growing interest in the protection of peoples and minorities that was manifested in several treaties and declarations adopted following the First World War. He noted the need to revisit international legal instruments, pointing out particularly the inadequacies of the Hague Convention of 1907, which he noted was silent regarding the preservation of the integrity of a people. According to Lemkin, the denition of genocide in the Hague Regulations thus amended should consist of two essential parts: in the rst should be included every action infringing upon the life, liberty, health, corporal integrity, economic existence, and the honour of the inhabitants when commi ed because they belong to a national, religious, or racial group; and in the second, every policy aiming at the destruction or the aggrandisement of one of such groups to the prejudice or detriment of another.3
Genocide and Crimes against Humanity The legal concept of genocide was forged in the crucible of post-Second World War eorts to prosecute Nazi atrocities. Its development took place in conjunction with that of other international crimes, especially crimes against humanity, with which it bears a close but complex and dicult relationship. The development and history of genocide as a legal concept cannot be properly understood without considering the parallel existence of crimes against humanity. Although the participants in the United Nations War Crimes Commission, established in November 1943, and in the London Conference, which met from late June to early August 1945 to prepare the Nuremberg trial of the major war criminals, opted to use the term crimes against humanity in the prosecutions, they also employed the word genocide as if it was more or less synonymous. In his Planning Memorandum distributed to Delegations at Beginning of London Conference, June 1945, where Justice Robert Jackson outlined the evidence to be adduced in the Nuremberg trial, he spoke of Genocide or destruction of racial minorities and subjugated populations by such means and methods as (1) underfeeding; (2) sterilization and castration; (3) depriving them of clothing, shelter, fuel, sanitation, medical care; (4) deporting them for forced labour; (5) working them in inhumane conditions.4 The indictment of the International Military Tribunal charged the Nazi defendants with deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, and Gypsies.5 The term genocide was also used on several occasions by the prosecutors during the trial itself. Sir David Maxwell-Fyfe, the British prosecutor, reminded one of the accused, Von Neurath, that he had been charged with genocide, which we say is the extermination of racial and national groups, or, as it has been put in the well-known book of Professor Lemkin, a co-ordinated plan of dierent actions aiming at the destruction of essential foundations of the life of national groups with the aim of annihilating the groups themselves.6 Lemkin later wrote that
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Washington: Carnegie Endowment for World Peace, 1944, at pp. 90-93. On Lemkin, see: William Korey, An Epitaph for Raphael Lemkin, New York: Jacob Blaustein Institute for the Advancement of Human Rights, 2001; John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, Basingstoke, United Kingdom: Palgrave Macmillan, 2008
5 6
Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington: US Government Printing Office, 1949, at p. 6 France et al. v. Goering et al., (1946) 22 IMT 45-6 (1947) 17 IMT, p. 61. See also: (1947) 19 IMT 497, 498, 509, 514, 531
the evidence produced at the Nuremberg trial gave full support to the concept of genocide.7 Nevertheless, the Charter of the International Military Tribunal did not use the word genocide, nor does it appear in the nal judgment issued on 30th September and 1st October 1946. The legal concept of crimes against humanity, as dened at Nuremberg, suered from a very serious limitation, in that it was conned to atrocities commi ed in association with an aggressive war. This was quite intentional on the part of those who dra ed the provisions governing prosecutions, especially the four great powers, the United States, the United Kingdom, France and the Soviet Union. Indeed, extending international law from classic war crimes involving ba leeld oences and various forms of persecution of civilians in an occupied territory so that it would also cover atrocities commi ed by a government against its own civilian population was not only novel and unprecedented, it was also threatening to the very states that were organizing the prosecution. The distinctions were set out quite candidly by the head of the United States delegation, Robert Jackson, at a meeting of the London Conference on 23 July 1945:
There is li le doubt that the British, the French and the Soviets had reasons of their own to share these concerns. As a result, the denition of crimes against humanity in article VI(c) of the Nuremberg Charter requires that atrocities be commi ed in furtherance of or in connection with any crime within the jurisdiction of the International Tribunal.10 In its nal judgment, the International Military Tribunal made a distinction between pre-war persecution of German Jews, which it characterized as severe and repressive, and German policy during the war in the occupied territories. Although the judgment frequently referred to events during the 1930s, none of the accused was found guilty of an act perpetrated prior to 1 September 1939, the day the war broke out. Following the judgment, there was considerable outrage about the severe restriction upon the concept of crimes against humanity. A member of the Nuremberg prosecution team, Henry King, has described meeting Raphael Lemkin in the lobby of the Grand Hotel in Nuremberg in October 1946, a few days a er the International Military Tribunal completed its work:
Speaking of the proposed crime of atrocities, persecutions, and deportations on political, racial or religious grounds, which would shortly be renamed crimes against humanity, Justice Jackson indicated the source of the lingering concerns of his government:
11
The disappointment soon manifested itself in the United Nations General Assembly, which was meeting in New York at the time. India, Cuba and Panama
9 Ibid., p. 333 (italics added) 10 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), annex, (1951) 82 UNTS 279 11 Henry T. King Jr., Origins of the Genocide Convention, (2008) 40 Case Western Reserve Journal of International Law 13, at pp. 13
7 8
Raphael Lemkin, Genocide as a Crime in International Law, (1947).41 American Journal of International Law 145, at p. 147 Minutes of Conference Session of 23 July 1945, in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, Washington: US Government Printing Office, 1949, at p. 331
Politorbis Nr. 47- 2 / 2009
proposed a resolution that they said would address a shortcoming in the Nuremberg trial by which acts commi ed prior to the war were le unpunished.12 One of the preambular paragraphs in the dra resolution stated: Whereas the punishment of the very serious crime of genocide when commi ed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made ma ers of international concern13 This paragraph never made it to the nal version of Resolution 96(I), adopted in December 1946, because the majority of the General Assembly was not prepared to accept universal jurisdiction for the crime of genocide. Nevertheless, the resolution, somewhat toned down from the hopes of those who had launched it, initiated a process that concluded two years later with the adoption of the Convention for the Prevention and Punishment of the Crime of Genocide.14 Proposals that the Genocide Convention make reference to crimes against humanity as a related concept, or as some kind of broader umbrella under which the crime of genocide was situated, were rejected by the dra ers so as not to create any confusion about the fact that genocide could be commi ed in time of peace as well as in wartime. This could not be said with any certainty about crimes against humanity at the time, precisely because of the Nuremberg precedent. Thus, the recognition of genocide as an international crime by the General Assembly of the United Nations in 1946, and its codication in the 1948 Convention, can be understood as a reaction to the narrow approach to crimes against humanity in the Nuremberg judgment of the International Military Tribunal. It was Nurembergs failure to recognize the international criminality of atrocities committed in peacetime that prompted the rst initiatives at recognizing and dening the crime of genocide. Had Nuremberg armed the reach of international criminal law into peacetime atrocities, the Genocide Convention might never have been adopted. The term genocide would probably have remained a popular or colloquial label used by journalists, historians and social scientists but one absent from legal discourse. The 1948 Genocide Convention
The Convention for the Prevention and Punishment of the Crime of Genocide was adopted unanimously by the United Nations General Assembly on 9 December 1948. It provides the following denition of the crime of genocide:
12 UN Doc. A/C.6/SR.22 13 UN Doc. A/BUR/50 14 Convention for the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277
In one sense, the denition is considerably narrower than that of crimes against humanity, which can apply to a broad range of acts of persecution and other atrocities commi ed against any civilian population. On the other hand, the denition is manifestly broader because of the absence of any requirement of a link with aggressive war. Besides dening the crime, the Convention imposes several obligations upon States that ratify it. They are required to enact legislation to provide for punishment of persons guilty of genocide committed on their own territory. The legislation must not allow oenders to invoke in defence that they were acting in an ocial capacity. States are also obliged to cooperate in extradition when persons suspected of commi ing genocide elsewhere nd refuge on their territory. They may not treat genocide as a political crime, which is an historic bar to extradition. Disputes between States about genocide are automatically subject to the jurisdiction of the International Court of Justice. The title of the Convention speaks of prevention, but other than a perfunctory undertaking to prevent genocide there is nothing to suggest the scope of this obligation. In 2007, in a case led by Bosnia and Herzegovina against Serbia, the International Court of Justice said there had been a breach of the Genocide Convention because Serbia failed to intervene with its allies, the Bosnian Serbs, so as to prevent the Srebrenica massacre of July 1995. The Court said that in view of Serbias undeniable inuence, the authorities should have made the best eorts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might
at least have been surmised.15 The judgment claries that the obligation to prevent extends beyond a countrys own borders. The principle it establishes should apply to other States that take li le or no action to respond when mass atrocity posing a risk of genocide is threatened. This pronouncement is in the same spirit as an emerging doctrine in international law expressed in a unanimous resolution of the United Nations General Assembly, adopted in 2005, declaring that States have a responsibility to protect populations in cases of genocide, crimes against humanity, war crimes, and ethnic cleansing.16 The Convention species that genocide is to be prosecuted by the courts of the country where the crime took place or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. The original General Assembly resolution proposed by Cuba, India and Panama called for recognition of universal jurisdiction over genocide. This would mean that the courts of any state could punish the crime, no ma er where it was committed. The idea was rejected by the General Assembly in favour of an approach combining territorial jurisdiction and an international institution. The promised international court was not established for more than half a century, when the Rome Statute of the International Criminal Court entered into force on 1 July 2002.17 Despite the Conventions rejection of universal jurisdiction, in the Eichmann prosecution the Israeli courts decided that it was accepted by customary international law.18 Although no treaty conrms universal jurisdiction over genocide, and there is as yet no determination of its legitimacy by the International Court of Justice, there now seems li le doubt that it is permi ed by international law. In 2006 and 2007, the International Criminal Tribunal for Rwanda authorized transfer of suspects for trial on the basis of universal jurisdiction with the approval of the United Nations Security Council, further evidence of the broad acceptance of universal jurisdiction over genocide.19
15 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 438 16 2005 World Summit Outcome, UN Doc. A/RES/60/1, para. 138 17 Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90 18 A-G Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem), paras. 20-22 19 Prosecutor v. Bagaragaza (Case No. ICTR-2005-86-R11bis), Decision on Prosecutors Request for Referral of the Indictment to the Kingdom of the Netherlands, 13 April 2007. For Security Council acquiescence, see: UN Doc. S/PV.5697
The denition of genocide set out in article II of the Convention has frequently been criticized for its narrowness. For example, it applies to a limited number of protected groups, and it requires an intent directed at physical destruction of the victimized group. There was disappointment when the International Court of Justice, in the Bosnia and Herzegovina case, dismissed a empts to broaden the denition by interpreting the words to destroy so as to encompass the notion of ethnic cleansing. The Court said that ethnic cleansing, which it described as the deportation or displacement of the members of a group, even if eected by force, was not necessarily equivalent to destruction of that group, and that destruction was not an automatic consequence of such displacement.20 The relatively conservative approach to interpreting the denition, and a resistance to broadening the scope through judicial action rather than amendment of the Convention, is also reected in judgments of the International Criminal Tribunal for the former Yugoslavia21 and an authoritative report by a United Nations fact-nding commission.22 Nor has there been any serious eort at the political level to amend or modify the denition in Article II of the Convention. The ideal opportunity for such a development would have been the adoption of the Rome Statute of the International Criminal Court, when the denitions of the other core international crimes, crimes against humanity and war crimes, were quite dramatically modernized. But when it came to genocide, there were a few modest proposals, and these did not gain any traction during the negotiations.23 At the Rome Conference, only Cuba argued for amendment of the denition, proposing it be expanded to include social and political groups.24
20 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 190 21 Prosecutor v. Krsti (Case No. IT-98-33-A), Judgment, 19 April 2004. Also: Prosecutor v. Staki (Case No. IT-97-24-T), Judgment, 31 July 2003; Prosecutor v. Branin (Case No. IT-99-36T), Judgment, 1 September 2004; Prosecutor v. Blagojevi et al. (Case No. IT-02-60-A) Judgment, 9 May 2007 22 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, UN Doc. S/2005/60 23 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22; para. 61; UN Doc. A/AC.249/1998/CRP.8, p. 2.; Herman von Hebel and Darryl Robinson, Crimes Within the Jurisdiction of the Court, in Roy S. Lee, ed., The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results, The Hague, London and Boston: Kluwer Law, 1995, at pp. 79-128, 89, n. 37 24 UN Doc. A/CONF.183/C.1/SR.3, para. 100
There is some evidence of innovation by national lawmakers when the provisions of the Genocide Convention are translated into domestic criminal legislation. The French Code pnal, for example, denes genocide as the destruction of any group whose identication is based on arbitrary criteria.25 The Canadian implementing legislation for the Rome Statute states that genocide means an act or omission commi ed with intent to destroy, in whole or in part, an identiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law, explaining that the denition in the Rome Statute, which is identical to that of the Convention, is deemed a crime according to customary international law. The legislation adds, in anticipation: This does not limit or prejudice in any way the application of existing or developing rules of international law.26 Recently, the European Court of Human Rights acknowledged some of this variation at the national level, ruling an expansive interpretation of the denition of genocide by German courts not to be inconsistent with the prohibition of retroactive criminality.27 Still, at the international level, a relatively strict reading of the Convention denition remains the rule. Protected Groups The denition in the 1948 Convention applies to national, ethnic, racial and religious groups. The concept is broadly analogous to what, at the time the Convention was adopted, were considered as national minorities. This was clearly the perspective of Raphael Lemkin and one of the other international experts who assisted the United Nations in preparing the rst dra of the Convention, Vespasian Pella.28 During the negotiations, there was an important debate about whether to include political groups within the denition. Persecution on the grounds of membership in a political group had been recognized at Nuremberg as a crime against humanity. But the dra ers of the Genocide Convention, Lemkin among them, quite decisively rejected the inclusion of political groups. Some of the subsequent literature on the subject has suggested that exclusion of politi25 Code Pnal (France), Journal officiel, 23 July 1992, art. 211-1 26 Crimes Against Humanity and War Crimes Act, 48-49 Elizabeth II, 1999-2000, C-19, s. 4 27 Jorgi v. Germany (Application no. 74613/01), Judgment, 12 July 2007 28 Vespasien V. Pella, La guerre-crime et les criminels de guerre, Rflexions sur la justice pnale internationale, ce quelle est ce quelle devrait tre, Neuchatel: ditions de la baconnire, 1964, at p. 80, fn. 1
cal groups was the result of pressure from the Soviet Union, but a careful reading of the dra ing history shows that opposition on this point was widespread. The Appeals Chamber of the International Criminal Tribunal for Rwanda has resisted subtle a empts to expand the denition of genocide in the direction of political groups.29 In the rst prosecution using a text derived from Article II of the Convention, identication of the victim group did not raise any legal diculties. Israeli law avoided any discussion about the nature of groups by simply reformulating the denition of genocide so as to refer to crimes against the Jewish people,30 and nothing in the trial record suggests that Eichmann ever challenged the fact that the victims of Nazi atrocities were the Jewish people.31 The issue does not appear to have been particularly controversial in litigation concerning the conict in Bosnia and Herzegovina. A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia concluded that Bosnian Muslims were a national group,32 a nding that was not challenged on appeal and that was accepted by the Appeals Chamber.33 A er some initial uncertainty, probably driven by contemporary discomfort with the concept of racial groups, the Trial Chambers of the International Criminal Tribunal for Rwanda have taken judicial notice of the fact that the Tutsi as well as the Hutu and the Twa were ethnic groups within Rwanda at the time of the 1994 genocide.34 In an innovative interpretation, a Trial Chamber held that the all stable and permanent groups were protected by the Convention,35 but its theory has had li le resonance in subsequent case law.36 Generally, it is the perpetrator of genocide who denes the individual victims status as a member of a group protected by the Convention. The Nazis, for example, had detailed rules establishing,
29 Nahimana et al. v. Prosecutor (Case No. ICTR-99-52-A), Judgment, 28 November 2007, para. 496 30 Nazi and Nazi Collaborators (Punishment) Law, 1950 (Law 5710/1950), s. I(a) 31 A-G Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem); A-G Israel v. Eichmann, (1968) 36 ILR 277 (Supreme Court of Israel) 32 Prosecutor v. Krsti (Case No. IT-98-33-T), Judgment, 2 August 2001, paras. 559-560 33 Prosecutor v. Krsti (Case No. IT-98-33-A), Judgment, 19 April 2004, para. 6 34 Prosecutor v. Kajelijeli (Case No. ICTR-98-44A-T), Judgment, 1 December 2003, para. 241 35 Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998, para. 652 36 Report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur, UN Doc. S/2005/60, para. 501
according to objective criteria, who was Jewish and who was not. It made no dierence if the individual, perhaps a non-observant Jew of mixed parentage, denied belonging to the group. As Jean-Paul Sartre wrote: Le juif est un homme que les autres hommes tiennent pour juif.37 With considerable frustration, lawyers and courts have searched for objective denitions of the protected groups. But most of the judgments treat the identication of the protected group as an essentially subjective ma er. For example, Trial Chambers of the International Criminal Tribunal for Rwanda have concluded that the Tutsi were an ethnic group based on the existence of government-issued ocial identity cards describing them as such.38 A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia wrote that the relevant protected group may be identied by means of the subjective criterion of the stigmatization of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics. In some instances, the victim may perceive himself or herself to belong to the aforesaid group.39 The prevailing view is that determination of the relevant protected group should be made on a case-by-case, relying upon both objective and subjective criteria.40 Ethnic Cleansing and Cultural Genocide The Convention denition of genocide refers to the intent to destroy without further precision. The ve punishable acts that follow consist of a combination of physical, biological and cultural a acks. For example, the h act of genocide in the denition, forcibly transferring children from one group to another, quite evidently does not involve their physical destruction. Rather, the elimination of a group is contemplated by destroying the cultural memory and the national language, through assimilation at a very young age. A literal reading of the denition can therefore support an interpretation whereby acts
37 Jean-Paul Sartre, Rflexions sur la question juive, Paris: Gallimard, 1954, pp. 81-4 38 Prosecutor v. Kayishema et al. (Case No. ICTR-95-1-T), Judgment, 21 May 1999, para. 98 39 Prosecutor v. Branin (Case No. T-99-36-T), Judgment, 1 September 2004, para. 683 (references omitted) 40 Prosecutor v. Branin (Case No. IT-99-36-T), Judgment, 1 September 2004, para. 684. Also: Prosecutor v. Staki (Case No. IT-97-24-A), Judgment, 22 March 2006, para. 25; Prosecutor v. Semanza (Case No. ICTR-97-20-T), Judgment and Sentence, 15 May 2003, para. 317; Prosecutor v. Kajelijeli (Case No. ICTR-9844A-T), Judgment and Sentence, 1 December 2003, para. 811; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 191
of ethnic cleansing or of cultural genocide falling short of physical destruction would be punishable, a view that some judgments appear to support.41 When the Convention was being dra ed, the punishable acts were divided into three categories, physical, biological and cultural genocide. The United Nations General Assembly voted quite deliberately to exclude cultural genocide from the Convention.42 It also rejected an amendment from Syria to include as an act of genocide behaviour that today might be called ethnic cleansing. The Syrian amendment read: Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment.43 When the General Assembly agreed to include forcible transfer of children, this was presented as an exception to the agreed upon exclusion of cultural genocide.44 Consequently, a reading of the Convention denition that takes into account the intent of its dra ers will tend to reject inclusion of cultural genocide and ethnic cleansing, and construe the words to destroy as if they are modied by physically and biologically. There are strong arguments for rejecting an approach to treaty interpretation that puts too much emphasis on legislative intent, particularly in the eld of human rights law. Reliance upon the dra ing history tends to freeze the provision, preventing it from evolving so as to take into account historical developments and changed a itudes. Be that as it may, courts to this day have shown great respect for the relatively narrow perspective adopted by the General Assembly in 1948. This is only partially explained by an inherent conservativism, however. Just as the crime of genocide emerged in international law as a reaction to the limitations on crimes against humanity, more recently the law on crimes against humanity has evolved to such an extent that it can now cover acts of ethnic cleansing and cultural genocide, even when commi ed in peacetime. As a result, there is no impunity gap, and there is li le or no pressure in a legal sense for the expansion of the denition of genocide by interpretation. Of course, there are important political prerogatives and much symbolism associated with the label genocide, and many victims are deeply disappointed when their own suering is acknowledged as mere crimes against humanity. They do not fully appreciate the
41 Prosecutor v. Krsti (Case No. IT-98-33-A), Partially Dissenting Opinion of Judge Shahabuddeen, 19 April 2004; Prosecutor v. Blagojevi (IT-02-60-T) Judgment, 17 January 2005; Jorgi v. Germany (App. no. 74613/01), Judgment, 12 July 2007, para. 47 42 UN Doc. A/C.6/SR.83 43 UN Doc. A/C.6/234 44 UN Doc. A/C.6/SR.82
importance of the legal distinctions, which are the result of a complex historical debate. Thus, while the distinction between genocide and crimes against humanity no longer has signicant legal consequences, it remains fundamental in other contexts. Numbers and Genocide The 1948 denition of genocide speaks of destruction of a group in whole or in part. It was a noble a empt by the dra ers to reach consensus, but in reality the General Assembly used ambiguous terms and le their clarication to judges in subsequent prosecutions. Several theories have emerged with a view to circumscribing the notion of in part. Because the terms appear in the preliminary paragraph of the denition, it is quite clear that they refer to the genocidal intent. As a result, the fundamental question is not how many victims were actually killed or injured, but rather how many victims the perpetrator intend to a ack. Even where there is a small number of victims, or none at all the Convention also criminalizes a empted genocide the crime can be commi ed if the genocidal intent is present. The actual result, in terms of quantity, will nevertheless be relevant in that it assists in assessing the perpetrators intent. The greater the number of actual victims, the more plausible becomes the deduction that the perpetrator intended to destroy the group, in whole or in part. But there are other issues involved in construing the meaning of the term in part. Could it be genocide to target only a few persons for murder because of their membership in a particular ethnic group? A literal reading of the denition seems to support such an interpretation. Nevertheless, this construction is rather too extreme, and inconsistent with the dra ing history, as well as with the context and the object and purpose of the Genocide Convention. Two basic approaches to the scope of the term in part have emerged, each adding a modifying adjective, substantial or signicant, to the word part. According to the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, it is well established that where a conviction for genocide relies on the intent to destroy a protected group in part, the part must be a substantial part of that group.45 Noting that the Nazis did not realistically intend to destroy all Jews, but only those in Europe, and that the Hutu extremists in Rwanda sought to kill Tutsis within Rwanda, the Appeals Chamber said: The intent to destroy formed by a
45 Prosecutor v. Krsti (Case No. IT-98-33-A), Judgment, 18 August 2004, para. 8
perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.46 In the factual context, the Appeals Chamber considered that the Bosnian Muslim community in Srebrenica constituted a substantial part of the Bosnian Muslims as a whole, and that the a empt to destroy it amounted to genocide.47 Another approach takes more of a qualitative than a quantitative perspective, reading in the adjective signicant. There is nothing to support this in the dra ing history of the Convention, and the idea seems to have been launched by Benjamin Whitaker in a 1985 report to the United Nations Sub-Commission for the Protection and Promotion of Human Rights. He wrote that the term in part denotes a reasonably signicant number, relative to the total of the group as a whole, or else a signicant section of a group such as its leadership.48 Citing Whitakers report, an expert body established by the United Nations Security Council in 1992 to investigate violations of international humanitarian law in the former Yugoslavia held that in part had not only a quantitative but also a qualitative dimension. According to the Commissions chair, Professor M. Cherif Bassiouni, the denition in the Genocide Convention was deemed suciently pliable to encompass not only the targeting of an entire group, as stated in the convention, but also the targeting of certain segments of a given group, such as the Muslim elite or Muslim women.49 This approach was adopted by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, in some of the initial indictments,50 and was subsequently accepted by trial judges.51 Although not explicitly endorsing the signicant part gloss on the Convention, the Appeals Chamber of the Tribunal considered the relevance to the Srebrenica Muslim community of the destruction of approximately 7,000 men. It referred to an
46 Ibid., para. 13 47 Ibid., para 22 48 Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6, para. 29 49 Final Report of the Commission of Experts, UN Doc. S/1994/674, para. 94 50 Prosecutor v. Karadi et al. (Case Nos. IT-95-18-R61, IT-95-5R61), Transcript of hearing of 27 June 1996, p. 15. Also: Prosecutor v. Jelisi et al. (Case No. IT-95-10-I), Indictment, 21 July 1995, para. 17 51 Prosecutor v. Jelisi (Case No. IT-95-10-T), Judgment, 14 December 1999, paras. 82, 93; Prosecutor v. Sikirica et al. (Case No. IT-95-8-T), Judgment on Defense Motions to Acquit, 3 September 2001, para. 80
observation of the Trial Chamber about the patriarchal character of Bosnian Muslim society in Srebrenica, and the consequent impact upon the future of the community that would result from the killing of its adult male population. Evidence introduced at trial supported this nding, by showing that, with the majority of the men killed ocially listed as missing, their spouses are unable to remarry and, consequently, to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinctio.52 In other words, the adult males were a significant part of a community, the Srebrenica Muslims, which was itself a substantial part of the group as a whole, namely, Bosnian Muslims. Genocidal Intent and the Contextual Element In principle, what sets criminal law apart from other areas of legal liability is its insistence upon establishing that the punishable act was commi ed intentionally. At best, inadvertent or negligent behaviour lies at the fringes of criminal law, and will certainly not apply when the most serious crimes, including genocide, are concerned. As a rule, criminal legislation does not spell out a requirement of intent, as this is considered to be implicit. Exceptionally, the denition in the Convention refers to the intent of the perpetrator, which must be to destroy the protected group in whole or in part. There are actually two distinct intents involved, because the underlying genocidal act, for example killing or causing serious bodily or mental harm to a member of the group, must also be carried out intentionally. Courts o en refer to the specic intent of genocide, or the dolus specialis, so as to distinguish it from non-genocidal killing. Application of this classic criminal law paradigm to genocide has resulted in what may be an exaggerated focus by some judges on the individual perpetrator, taken in isolation. The International Criminal Tribunal for the former Yugoslavia has adopted the view that an individual, acting alone, can commit genocide to the extent that he or she engages in killing with a genocidal intent.53 The problem with such analysis is that it loses sight of the importance of the plan or policy of a State or analogous entity. In practice, genocide within the framework of international law is not the crime of a lone deviant but the act of a State. The importance of a State policy becomes more apparent when the con52 Prosecutor v. Krsti (Case No. IT-98-33-A), Judgment, 18 August 2004, para. 28 53 Prosecutor v. Jelisi (Case No. IT-95-10-T), Judgment, 14 December 1999, para. 100
text shi s from individual prosecution to a broader and more political determination. For example, in September 2005 the United Nations Security Council commissioned a study to determine whether genocide was being commi ed in Darfur. The resulting expert report did not seriously a empt to determine whether any single individual within Sudan had killed with genocidal intent. Rather, it examined the policy of the Sudanese government, stating: The Commission concludes that the Government of Sudan has not pursued a policy of genocide.54 The Commission said that there was evidence of two elements of the crime of genocide. The rst was the presence of material acts corresponding to paragraphs in the denition of the crime set out in article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. It observed that the gross violations of human rights perpetrated by Government forces and the militias under their control included reports of killing, causing serious bodily or mental harm, and deliberate iniction of conditions of life likely to bring about physical destruction. The second was the subjective perception that the victims and perpetrators, African and Arab tribes respectively, made up two distinct ethnic groups. But, said the Commission, one central element appears to be missing, at least as far as the central Government authorities are concerned: genocidal intent. Generally speaking the policy of a acking, killing and forcibly displacing members of some tribes does not evince a specic intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds.55 The lack of an explicit contextual element requiring that genocide be commi ed as part of a policy of a State or similar entity has led to some normative gap-lling at the International Criminal Court. Although only summary a ention was paid to the denition of genocide during the dra ing of the Rome Statute, some of the issues involved in the crime of genocide were explored in more detail by the Preparatory Commission as it devised the Elements of Crimes. The Elements of Crimes are a subsidiary instrument to the Rome Statute whose purpose is to assist the Court in the interpretation of the denitions of the crimes.56 In particular, the Elements address various aspects of the mental element for the commission of genocide. They also impose a contextual element that does not appear in the text of the
54 Report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur, UN Doc. S/2005/60, para. 518 55 Ibid 56 Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, art. 9
Genocide Convention itself: The conduct took place in the context of a manifest pa ern of similar conduct directed against that group or was conduct that could itself eect such destruction. This paragraph, which is reproduced in the Elements of each specic act of genocide, is further developed in the Introduction:
The term circumstance appears in article 30 of the Rome Statute, requiring as a component of the mens rea of crimes that an accused have awareness that a circumstance exists.57 In its dra denitional elements on the crime of genocide, which were circulated at the Rome Conference, the United States had proposed that the mental element of genocide require a plan to destroy such group in whole or in part.58 During subsequent debate in the Preparatory Commission, the United States modied the plan requirement, this time borrowing from crimes against humanity the concept of a widespread or systematic policy or practice.59 The wording was widely criticized as an unnecessary addition to a well-accepted denition, with no basis in case law or in the travaux of the Convention.60 Israel however made the quite compelling point that it was hard to conceive of a case of genocide that was not conducted as a widespread and systematic policy or practice. As the debate evolved, a consensus appeared to develop recognizing the plan element, although in a more cautious formulation.61 This is reected in the Elements.
57 Ibid., art. 30(3) 58 Annex on Definitional Elements for Part Two Crimes, UN Doc. A/CONF.183/C.1/L.10, p. 1. The elements also specify that when the accused committed such act, there existed a plan to destroy such group in whole or in part 59 The draft proposal specified that genocide was carried out in conscious furtherance of a widespread or systematic policy or practice aimed at destroying the group: Draft elements of crimes, PCNICC/1999/DP.4, p. 7 60 Comments by Canada, Norway, New Zealand and Italy, 17 February 1999 (authors personal notes). 61 Discussion paper proposed by the Co-ordinator, Article 6: The crime of genocide, PCNICC/1999/WGEC/RT.1: The accused knew that the conduct was part of a similar conduct directed against that group.
Two other components of the contextual element are also dened. The word manifest proved troublesome during dra ing of the Elements, as some States feared it would make the threshold for genocide too high.62 The compromise was to add a sentence stating: The term manifest is an objective qualication.63 Another concern was that the contextual requirement might rule out prosecution of those who initiate genocide, given that their acts might precede the manifest pa ern.64 As a result the following sentence was added: The term in the context of would include the initial acts in an emerging pa ern65 The contextual element set out in the Elements of Crimes was invoked by Pre-Trial Chamber I in its decision on the Bashir arrest warrant. The Chamber acknowledged that the denition in the Genocide Convention itself does not expressly require any contextual element.66 It then considered the case law of the ad hoc tribunals, which have not insisted upon a plan or policy as an element of the crime of genocide.67 The Rwanda Tribunal pronouncements are obiter dictum, because there has never been any doubt about a plan or policy in the 1994 genocide. The signicant case here is Jelisi, in which a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia ruled that there was not sufcient evidence of a plan or policy, but that a conviction for genocide was in any event theoretically possible because an individual, acting alone, could perpetrate the crime.68 The Trial Chamber decision in Jelisi was issued only months before the Elements of Crime were adopted by the Preparatory Commission and it is very likely that it inuenced delegates to the Commission. The original United States proposal on the Elements of genocide had borrowed the widespread and systematic language from crimes
62 Valerie Oosterveld and Charles Garraway, The Elements of Genocide, in Roy S. Lee, ed., The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Ardsley, NY: Transnational Publishers, 2001, pp. 41-56, at p. 47 63 Elements of Crimes, Article 6, Genocide, Introduction 64 Valerie Oosterveld and Charles Garraway, The Elements of Genocide, in Roy S. Lee, ed., The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Ardsley, NY: Transnational Publishers, 2001, pp. 41-56, at p. 47 65 Elements of Crimes, Article 6, Genocide, Introduction 66 Prosecutor v. Bashir (Case No. ICC-02/05-01/09), Decision on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 117 67 Ibid., para. 119, citing: Prosecutor v. Jelisi (Case No. IT-95-10T), Judgment, 14 December 1999, para. 400 (an error; the correct reference is to para. 100); Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998, paras. 520, 523 68 Jelisi (IT-95-10-T), Judgment, 14 December 1999, para. 100; affirmed: Jelisi (IT-95-10-A), Judgment, 5 July 2001
against humanity.69 It was replaced by the manifest pa ern formulation early in 2000.70 In Bashir, Pre-Trial Chamber I said that pursuant to the case law of the ad hoc tribunals,
Dissenting Judge Uacka insisted that the Elements of Crimes were only to assist the Court and hinted at the view that in this case they are inconsistent with article 6, a point she said did not need to be determined in the present case.75 The Pre-Trial Chamber might well have justied the dierence in its approach and that of the ad hoc tribunals by relying on the requirements imposed by the Elements of Crimes, in eect conceding that the interpretation in Jelisi is more consistent with customary international law. However, it went on to state that it did not see any irreconcilable contradiction between the denition of genocide in article 6 of the Rome Statute and the requirement of a contextual element set out in the Elements.76
71
Pre-Trial Chamber I said that under this interpretative approach, the crime of genocide depends upon proof that the accused had the intent to destroy the protected group, and that as soon as this intent exits and materialises in an isolated act of a single individual, the protection is triggered, regardless of whether the latent threat to the existence of the targeted group posed by the said intent has turned into a concrete threat to the existence in whole or in part of that group.72 Noting a certain controversy as to whether the contextual element should be recognised,73 PreTrial Chamber I quite clearly distanced itself from the case law of the ad hoc tribunals. It highlighted the importance of the contextual element set out expressly in the Elements of Crimes.
77
Therefore the decision represents an important departure in the jurisprudence of the International Criminal Court from established case law of the ad hoc tribunals on an important substantive legal issue. State responsibility Although the denition of genocide is framed as a crime, implying that it applies only to individuals, the 1948 Genocide Convention imposes duties upon States to prevent genocide and clearly envisages their liability before the International Court of Justice. Any doubts on this point were resolved in the February 2007 judgment of the International Court. There remains an ongoing debate among international lawyers as to whether States actually commit crimes. The Court avoided the question when it ruled that Serbia was liable for failing to
75 Prosecutor v. Bashir (Case No. ICC-02/05-01/09), Separate and Partly Dissenting Opinion of Judge Anita Uacka, 4 March 2009, para. 20. 76 Prosecutor v. Bashir (Case No. ICC-02/05-01/09), Decision on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 132 77 Ibid., para. 133
69 Proposal Submitted by the United States of America, Draft elements of crimes, PCNICC/1999/DP.4 70 Discussion paper proposed by the Coordinator , PCNICC/2000/WGEC/RT.1 71 Prosecutor v. Bashir (Case No. ICC-02/05-01/09), Decision on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 119 (references omitted). Contra: Prosecutor v. Bashir (Case No. ICC02/05-01/09), Separate and Partly Dissenting Opinion of Judge Anita Uacka, 4 March 2009, para. 19, fn. 26 72 Ibid., para. 120 73 Ibid., para. 125 74 Ibid., para. 124
prevent genocide, whether qualied as a crime or as an internationally wrongful act. The Court also held that where charges of genocide are made, they must be established by proof at a high level of certainty appropriate to the seriousness of the allegation.78 This is a considerably more demanding standard than what would normally be applied in ordinary cases involving State responsibility before the International Court of Justice, and it appears to approximate the norm applied in criminal prosecutions. For example, the Rome Statute of the International Criminal Court says that in order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.79 In adopting this approach, the International Court of Justice greatly reduced the likelihood of a result inconsistent from that of the international criminal tribunals. Its exigent standard of proof with respect to genocide virtually assured that the International Court of Justice, dealing with State responsibility, and the International Criminal Tribunal for the former Yugoslavia, dealing with individual responsibility, would remain very much on the same wavelength. Conclusion The Genocide Convention continues to fascinate jurists, politicians, journalists and human rights activists. For most of its rst y years, it lived in a state of tension with crimes against humanity. There was much frustration with the narrowness of the denition of genocide. Schwarzenberger famously remarked that the Genocide Convention was unnecessary when applicable and inapplicable when necessary.80 Frank Chalk and Kurt Jonassohn wrote that the wording of the Convention is so restrictive that not one of the genocidal killings commi ed since its adoption is covered by it.81 Many, therefore, argued for a dynamic interpretation of the concept of genocide that would include a range of other protected groups, such as political and social groups, and that would apply to a broader range of
acts.82 But what they were proposing, in reality, was equivalent tocrimes against humanity without the nexus to armed conict. In early 1945, genocide and crimes against humanity were cognates, terms devised to describe the barbarous acts of the Nazi regime. Though not identical in scope, they neatly overlapped and could be used more or less interchangeably to describe the great crime of the era, the a empted extermination of Europes Jewish population. By late 1946 an important ri developed, and it was not healed until the end of the century. Eventually, the nexus disappeared from the denition of crimes against humanity, but it would take half a century for the evolution to become evident. In 1995, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia declared that the requirement that crimes against humanity be associated with armed conict was inconsistent with customary law.83 It offered the rather unconvincing explanation that the Security Council had included the nexus in article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia as a jurisdictional limit only.84 The more plausible explanation is that the lawyers in the United Nations Secretariat who dra ed the Statute believed the nexus to be part of customary law, and the Council did not disagree.85 Nevertheless, there can today be no doubt that the aw in the Nuremberg concept of crimes against humanity, something that prompted Lemkins genocide-related initiatives at the General Assembly, has been corrected. The authoritative denition appears in article 7 of the Rome Statute, which contains no reference to armed conict as a contextual element. The only real remaining uncertainty is precisely when the nexus disappeared from the elements of crimes against humanity. As far as the International Law Commission was concerned, it
82 e.g., Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6 83 Prosecutor v. Tadi (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 141; Prosecutor v. Tadi (Case No. IT-94-1A), Judgment, 15 July 1999, para. 251; Prosecutor v. Kordi et al. (Case No. IT-95-14/2-T), Judgment, 26 February 2001, para. 23 84 Prosecutor v. eelj (Case No. IT-03-67-AR72.1), Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 13 85 See the Secretary-Generals report: Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character. Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), para. 47. See: Larry D. Johnson, Ten Years Later: Reflections on the Drafting, (2004) 2 Journal of International Criminal Justice 368, at p. 372
78 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, 26 February 2007, para. 210 79 Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, art. 66(3) 80 Georg Schwarzenberger, International Law, Vol. I, 3rd ed., London: Stevens & Sons, 1957, at p. 143 81 The Conceptual Framework, in Frank Chalk and Kurt Jonassohn, eds., The History and Sociology of Genocide, New Haven and London: Yale University Press, 1990, pp. 343
was present as late as 1950, and perhaps a er that. In 1954, the Commission experimented by removing the nexus, replacing it with another contextual element, the State plan or policy.86 There is also some recent authority from the European Court of Human Rights supporting the view that the nexus was absent as early as the 1950s.87 In a September 2008 decision, a Grand Chamber of the Court said cautiously that a nexus with armed conict may no longer have been relevant by 1956.88 The issue directly faces the Extraordinary Chambers of the Courts of Cambodia in their current eorts to prosecute Khmer Rouge atrocities. One way in which these issues are confronted is by muddling the distinctions between genocide and crimes against humanity. The United Statesbased Genocide Prevention Task Force, which issued its report in December 2008, spoke of Avoiding Denitional Traps. Its report refers to the denitional challenge of invoking the word genocide, which has unmatched rhetorical power. The dilemma is how to harness the power of the word to motivate and mobilize while not allowing debates about its denition or application to constrain or distract policymakers from addressing the core problems it describes.89 The Task Force indicates its intention to avoid the legalistic arguments that have repeatedly impeded timely and eective action. As a consequence, it denes the scope of the report as the prevention of genocide and mass atrocities. It says this means large-scale and deliberate a acks on civilians, pointing to the denitions of genocide, crimes against humanity and grave breaches of the war crimes that are recognized in international treaties: We use the term genocide in this report as a shorthand expression for this wider category of crimes.90 The Task Force blends crimes against humanity into genocide, but keeps the evocative term. It is an old trick, really, rather like McDonalds telling you that you are buying a quarter pound of beef. The distinction between genocide and crimes against humanity is still of great symbolic signicance, of course. Many Bosnians were sha ered
86 Yearbook1954, Vol. II, UN Doc. A/CN.4/SER.A/1954/Add.l, p. 150 87 Kolk v. Estonia (App. no. 23052/04), Kislyiy v. Estonia (App. no. 24018/04), Admissibility Decision, 17 January 2006; Penart v. Estonia (App. No. 14685/04), Admissibility Decision, 24 January 2006; 88 Korbely v. Hungary (App. No. 9174/02), Judgment, 19 September 2008, para. 82 89 Madeleine Albright and William Cohen, et al., Preventing Genocide, Washington: United States Holocaust Memorial Museum, The American Academy of Diplomacy, and the Endowment of the United States Institute of Peace, 2008, p. xxi 90 Ibid., pp. xxi-xxii
that their suering during the 1992-1995 war was not labelled genocide, save for the very specic case and ultimately anomalous case of the Srebrenica massacre. This was reected in many negative comments from international lawyers about the judgment of the International Court of Justice.91 Similarly, there was much disappointment when the Commission of Inquiry set up pursuant to a Security Council mandate determined that Sudan was not commi ing genocide in Darfur.92 And yet the essence of the Bosnian war has been described on countless occasions in the case law of the International Criminal Tribunal for the former Yugoslavia as a crime against humanity, and the Darfur Commission did the same for the ethnic cleansing in Sudan, urging that the situation be referred to the International Criminal Court for prosecution:
If their victimisation is acknowledged as crimes against humanity, the Bosnian Muslims and the Darfur tribes are in good company. A er all, even though today we speak of the Armenian and Jewish genocides, at the time when they were commi ed crimes against humanity was the applicable terminology. Perhaps in the years to come, now that the legal diculties distinguishing genocide and crimes against humanity have been resolved, the more popular connotation of these terms will tend to evolve in the same direction. The legal signicance of the Genocide Convention has declined over the past decade or so, but not because it is inapplicable to specic circumstances or out of a perceived conservativism of diplomats and judges. Rather, new instruments and new institutions have emerged. Foremost among them is the International Criminal Court. In a dierent way, it accomplishes much the same thing as the Genocide Convention, but in a manner applicable to crimes against humanity as well. Moreover, the recent
91 Antonio Cassese, A Judicial Massacre, The Guardian, 27 February 2007; Ruth Wedgwood, Bad Day for International Justice, International Herald Tribune, 8 March 2007 92 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, UN Doc. S/2005/60 93 Ibid., p. 4
responsibility to protect doctrine extends the duty of prevention found in article I of the Genocide Convention to crimes against humanity. The only legal consequence of describing an atrocity as genocide rather than as crimes against humanity is the relatively easy access to the International Court of Justice oered by article IX of the 1948 Convention. But article IX has generated more heat than light, and the recent ruling of the Court in Bosnia v. Serbia should discourage resort to this remedy except in the very clearest of cases.94 In a legal sense, there is now slight importance, if any, to the distinction between genocide and crimes against humanity. The value of the Genocide Convention can probably be found not so much in its contemporary potential to address atrocities, something that is largely superseded by more modern texts, as its historic contribution to the struggle for accountability and the protection of human rights.
94 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007. On the judgment, see: William A. Schabas, Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes, (2007) 2 Genocide Studies and Prevention 101.
47
Options for the Prevention and Mitigation of Genocide: Strategies and

Examples for Policy-Makers*
Prevention is a process, and so are the conicts that may lead to genocidal violence. Logically we cannot say that a genocide or mass political killing has been prevented, because we can never know for certain whether targeted violence aimed at eliminating an ethnic, religious, or political group would have occurred in the absence of preventive actions. But we can say that some combination of international actions mitigated the conditions that elsewhere have led to genocide. When Prevention is Most Eective: What we should do is look at successful international engagement in ongoing conicts that contain a number of preconditions for genocidal outcomes. These are examples of situations in which international preventive actions should come into play at the earliest possible stage. Some political mass murders occur a er a new minority-based or ideologically-driven elite consolidates power (for example in Burundi, 1965; and in Chile, 1973-74). Diplomacy cannot prevent such elites from taking power, but once in oce diplomatic and political pressures need very quickly to be brought to bear to discourage new elites from targeting their rivals for elimination. The instruments are both positive and negative. On the positive side, international assistance and security guarantees should be extended to new elites that seek to reach accommodation with their rivals. On the negative side, major powers and international organizations can make credible threats of loss
* This article is expanded and updated from the authors similarly-titled paper presented at the 2004 Stockholm International Forum on the Prevention of Genocide, in Stockholm International Forum 2004, 26-28 January Proceedings. Preventing Genocide: Threats and Responsibilities. Workshop Track 3, Prevention: Policy Instruments and Responses, Session II: Lessons Learned from Success, pp. 183-184 Ted Robert Gurr is Distinguished University Professor Emeritus at the University of Maryland, College Park and convener of the Genocide Prevention Advisory Network (http://GPANet.org). He founded and consults on the Minorities at Risk project (www.cidcm.umd.edu/mar) which tracks the political status and activities of more than 300 communal groups world-wide. He has written or edited more than twenty other books and monographs.
of recognition, international loans, assistance, trade and investment if they commit serious human rights violations. The second point of intervention is in the early stages of internal (revolutionary or ethnic) warfare. We know that the longer civil wars last, the greater the risks that the parties to conict - especially but not only the government - will resort to genocidal violence to eliminate their opponents supporters. The same kinds of diplomatic, political, and economic instruments need to be brought to bear near the onset of armed conict - but in this circumstance focused on rebels as well as governments. Both sides are likely to need inducements, and the threat of loss of international support, to reach ceaseres and negotiate their dierences. And both sides are likely to need security guarantees and promises of longer-term economic assistance to reach and implement se lements. There are many case and comparative studies of the international stratagems that can help de-escalate civil wars and get participants to negotiate binding agreements.2 The third point of intervention is in response to the onset of mass killings. Late-stage intervention uses the diplomatic and political techniques of early prevention but, to be eective, usually requires robust peace-keeping and sometimes peace-making operations. This is both the most common and least desirable option because it is costly and reects failures of early action. The tragedy of late-stage preventive action is that its techniques are mostly familiar to international policy makers - in the UN Security Council, the European Union, the major powers who have failed to engage in a concerted way until a er months or years of deadly conict. Late-stage intervention in Sudans genocidal North-South war of
2 See for example Barbara Walter, Committing to Peace (Princeton, NJ: Princeton University Press, 2002) and the contributions to Fen Osler Hampson and David M. Malone (eds.), From Reaction to Conflict Prevention: Opportunities for the UN System. (Boulder, CO: Lynne Rienner for the International Peace Academy, 2002)
1983-2002 and the Angolan civil war of 1975 to 2002 both come to mind - international eorts contributed to the peace process but only a er hundreds of thousands of civilians in Sudan, millions died unnecessarily. Military operations may be necessary to check genocidal violence. The Bosnian civil war and genocide that began in 1992 was ended by the Dayton Accords in 1995 among Serb, Bosnian, and Croat political entities in negotiations that were initiated by the United States and backed by the European Contact Group. The negotiations were preceded, however, by a Croat military oensive against Serbian enclaves that convinced the Milosevic government it had more to gain from talks than war. The story does not end there because the Dayton negotiations ignored the festering conict in Kosovo for reasons that were compelling at the time. The tragic consequence of this neglect was that Kosovars in 1998-99 began a guerrilla war that prompted a Serb policy of genocidal ethnic cleansing of Albanians.3 Serb atrocities were checked only by a NATO bombing campaign. The Macedonian Example: The most instructive examples of preventive responses are ones in which international actors acted early not late in situations that threatened major armed conict and potential genocidal violence. Serious conict has twice been averted in Macedonia. When its independence from the Yugoslav Federation was recognized in late 1992 it was widely feared that the Serbian minority, supported by Belgrade, would try to destabilize the new regime; and that political action among Kosovar Albanians would prompt rebellion by kindred Albanians in Macedonia. Either could easily have led to civil war and ethnic cleansing. Trip-wire contingents of international troops, rst Canadian and Scandinavian, later US, were sent to patrol borders and no conict ensued. This presence was complemented by extensive diplomatic activity and NGO-led civil society initiatives within Macedonia. A sharper danger was posed in January 2001 when Macedonian Albanians, with substantial participation by Kosovars, began an insurgency and gained eective control of parts of western Macedonia. The international - mainly European - response was prompt and diverse. Political/diplo3 A recent study is Peter Russell, The Exclusion of Kosovo from the Dayton Negotiations, Journal of Genocide Research, vol. 11, no. 4 (December 2009): 487-511
matic pressures were brought to bear on both sides to suspend armed conict. Incentives (political and economic) prompted the Macedonian government to commit to the Ohrid national pact of August 2001 that gave ethnic Albanians a greater stake in government. European peace-keepers supervised the disarmament of Albanian rebels. When Macedonian nationalists tried to sabotage constitutional reform, external political pressures were ratcheted up again to keep the peace process on track. Given the rhetoric and initial actions of both Macedonian and Albanian nationalists, the risk of politicidal violence at the onset was high and it is crystal clear that international engagement checked escalation.4 Baltic and East Timor Examples: In the early 1990s the newly-independent Baltic states imposed, or proposed, sharply discriminatory policies on their large Russian minorities. Russia threatened intervention, for example by suspending withdrawal of Russian forces. The OSCE, EU, and US orchestrated a sustained diplomatic campaign that dissuaded Baltic nationalist governments from imposing the more draconian of these policies and persuaded the Russians to continue drawing down their troops. The US worked closely with all parties, and along with its European partners engaged in close scrutiny and critique of the policies of the Baltic states. Was there a potential for genocide? Probably not, but if the Russian government had chosen to encourage local Russians to resist, and had backed up their resistance with military assistance -as the Russians did from 1991 onward in Moldovas TransDniester region - there would likely have been serious civil wars in the Baltics with devastating consequences. In the global South international responses to potentially genocidal conict have been mostly cautious and misguided (e.g. Rwanda in the early 1990s) or insucient to check violence (the UNs MONUC mission that began during Congos second civil war in 1999 and continues to the present). One success story occurred in East Timor when Indonesian-backed militias tried to reverse, or sabotage, the results of the 2001 independence referendum. The prompt arrival of Australian (and other Pacic Island) forces checked the militias violence and made it possible to begin reconstructing a devastated society. In the absence of prompt and forceful international action, it is entirely possible that the militias would have resumed the genocidal policies
4 A comparative analysis of Albanian separatism and its consequences during this period is Lyubov Mincheva, The Albanian Ethnoterritorial Separatist Movement: Local Conflict, Regional Crisis, Nationalism and Ethnic Politics, vol. 15, no. 2 (April 2009): 211-236
by which the Indonesian military had responded to nationalist Timorese resistance from 1976 to the mid-1990s. Some Guidelines for Prevention and Mitigation: Multilateral engagement in potentially genocidal situations is more credible than unilateral action. The UN Security Council is not the only source of legitimation; regional organizations like NATO, the OSCE, the EU, the African Union, and the Intergovernmental Authority on Development (active in East and Central Africa) also have credibility and capacity in their spheres of inuence. Quick and early diplomatic and political responses are needed to adverse regime changes and the onset of internal wars. Quick responses may be even more important than multilateral ones in checking escalation to genocide. Eective engagement requires an integrated strategy covering political, economic, and military modalities. Interveners need to be ready to employ economic as well as diplomatic incentives and sanctions. NGOs should play a substantial role. Political engagement is needed with all parties to conict, not just regimes, however unpalatable some of them may be. Planning for military intervention should be part of the preventive response, not a last resort. There should be credible threats of military deployment and forceful action in response to the onset of gross human rights violations. Some international actors reject overt intervention in other countries internal aairs, even in genocidal situations. If there is an international partnership among responders, there should be a division of labor whereby each partner country or organization uses the strategies it is best able to employ. Long-term international engagement is needed, rst to get contenders to reach negotiated se lements and second to carry through with the security guarantees, political support, and economic assistance that keep them from reneging on agreements, as in Macedonia. In early 2010 there is serious risk that Sudans north-south civil war will resume, mainly because the Khartoum government is reluctant to implement fully key terms of the Compre-
hensive Peace Agreement of 2005. The eects of international political and diplomatic efforts to keep the process on track are problematic. What Preventive Strategies Work When, Where, and Why Neither scholars nor practitioners have a solid knowledge base about which strategies, employed by whom, are most likely to be eective in any given situations. Barbara Har and Yehuda Bauer, among others, have said repeatedly that we need comparative, policy-relevant research on this vital issue. Here is a brief proposal for doing just that.5 We should begin with established knowledge about the preconditions of genocidal violence. Violent political conict or forceful overthrow of an existing government (or both) have almost invariably preceded past episodes of genocidal violence. Barbara Har s article, elsewhere in this issue, includes the results of risk assessment research that identies ve other preexisting conditions which, in varying combinations, have led to most cases of genocide and politicide since 1955:
The greater the number of these conditions present in a country undergoing severe instability, the more likely a threatened regime (or, in a civil war situation, its opponents) will target real or perceived enemies for elimination. The 2009 assessment of global risks uses objective data to identify countries that are at medium to high risk of genocidal violence in the near future. Among them are a number of countries whose political stability is of major interest to international actors: Sudan (at risk of future outbreaks), Burma, Somalia, Iran, Zimbabwe, Rwanda, Angola, Ethiopia, and Pakistan. Whats needed is a close examination of past, current, and future international policies toward each of these countries, with assessments of whether and how dierent modes of
5 The need for such research has been discussed by Yehuda Bauer, Birger Heldt, Barbara Harff and others at successive meetings of the Genocide Prevention Advisory Network, hosted by the Swiss Federal Department of Foreign Affairs (see http://GPANet.org)
engagement mitigate armed conict and change the underlying potentials for genocidal violence. The research techniques for tracking international actions in situations of armed conict are well established; for example in research by Patrick Regan and Birger Heldt.6 The result of such research in high-risk cases, extending over a decade or more, should tell us substantially more than we now know about what international stratagems diplomatic, political, economic, military help or harm the global eort to prevent genocidal violence.
Other Useful Sources Bruce W. Jentleson (ed.), Opportunities Missed, Oportunities Seized: Preventive Diplomacy in the Post-Cold War World (Lanham, MD: Rowman & Li leeld for the Carnegie Commission on Preventing Deadly Conict, 2000) provides detailed case studies of most of the successes and failures cited above. Sato Hideo (ed.), Containing Conict: Cases in Preventive Diplomacy (Tokyo: Japan Center for International Exchange, 2003) gives Asian perspectives on conict prevention and mitigation. Michael S. Lund, Preventing Violent Conicts: A Strategy for Preventive Diplomacy (US Institute of Peace Press, 1996) surveys the toolbox of political and diplomatic strategies for prevention. Peter Wallensteen, Carina Staibano, and Mikael Eriksson (eds.), Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options (Report of the Stockholm Process on the Implementation of Targeted Sanctions, Dept. of Peace and Conict Research, Uppsala University, 2003) gives detailed recommendations for designing and following through on UN-imposed sanctions.
See Patrick M. Regan, Civil Wars and Foreign Powers (Ann Arbor: University of Michigan Press, 2002) and Birger Heldt, Sequencing of Peacemaking in Emerging Intrastate Conflicts, pp. 128-146 in Karin Aggestam and Annika Bjrkdahl (eds), War and Peace in Transition. (Lund, Sweden: Nordic Academic Press, 2009)
51
Why the Responsibility to Protect (R2P) as a Doctrine or (Emerging)
Norm to Prevent Genocide and Other Massive Human Rights Violations is on the Decline: The Role of Principles, Pragmatism and the Shi ing Pa erns of International Relations
J S
1
The heady days of optimism about the responsibility to protect (R2P) as a norm that would play a crucial role in ensuring that massive human rights violations, including genocide, would be halted, whenever and wherever they were occurring, seem to be over. There was tremendous optimism and progress in the years a er its adoption, by the International Commission on Intervention and State Sovereignty (ICISS) in 2001,3 and when it was included in the 2004 UN High-Level Panel on Threats, Challenges and Change Report: A More Secure World: Our Shared Responsibility.4 There was much fanfare a er it was adopted unanimously as part of the World Summit Outcome document in 2005.5 The fact that then-UN Secretary General Ko Annan proposed using the doctrine in his In Larger Freedom6 reform package and that R2P was included in various Security Council Resolutions: in 2006, 2007 and 20087 has resulted in many seeing it as a doctrine whose time has come. This is particularly important in the con1 Dr. Jeremy Sarkin is an attorney in the USA and South Africa. He was Senior Professor of Law (1990-2008) and Deputy Dean (2000-2002) at the University of the Western Cape in Cape Town. He served recently as Distinguished Visiting Professor of Law at Hofstra University and was for two years Visiting Professor of International Human Rights at the Fletcher School at Tufts University in Boston. Some of his publications can be found at http://ssrn.com/author=345702 http://www.brainyquote.com/quotes/authors/a/albert_einstein.html http:www.iciss.ca/pdf/Commission-Report.pdf ICCR commission http://www.un.org/secureworld/report2.pdf G.A. Res. 60/1, 138-39, U.N. Doc. A/RES/60/1 (Oct. 24, 2005) In larger freedom: towards development, security and human rights for all. Report of the Secretary-General. Prepared by the UN Web Services Section Department of Public Information in 2005.; http://www.un.org/largerfreedom/ S.C. Res. 1674, U.N. Doc. S/Res/1674 (Apr. 28, 2006); S.C. Res 1755, U.N. Doc. S/Res/1755 (Apr. 30, 2007) and S.C. Res. 1828, U.N. Doc. S/Res/1828 (July 31, 2008)
2 3 4 5 6
text of an international human rights system which remains dependent on voluntary state compliance and where enforcement, even where there are specic human rights obligations, remains limited.8 Within this milieu which institution is able to wield authority, and determine when steps are taken to prevent human rights abuse, is important. The institution responsible for authorizing the use of force has been the Security Council but the Council remains a highly politicized institution whose composition reects the world as it was in 1945. Its ve permanent members wield the veto, o en to protect their own interests, at the expense of being able to prevent massive human rights violations. For some, the replacement of the UN Human Rights Commission by the Human Rights Council has done li le to advance a less politicized human rights process. The fact that the process is a member state process inevitably means a political process. Cynically, it is believed by some that the fact that the Human Rights Council does not have binding authority, as the Security Council has, means that some states try and shi ma ers away from the Security Council to the Human Rights Council. The upward trend of R2P as a practical and valuable additional international law tool seems to be in reverse. In fact, R2P itself as a useful international norm seems to be on the decline. While the norm may have been a growing tool in 2005 when it was argued that R2P reects a profound shi in international law, whereby a growing sense of global responsibility for atrocities is increasingly encroaching upon the formerly sanctied concept of state sovereignty,9 this is no longer true. It certainly was true that R2P was on the ascendency in 2001 when Anthony Lewis argued that the ICISS Report captured the international state of mind.10 Similarly, Tom Weiss has argued that:
Maggie Margaret Penrose, Lest we fail: the importance of enforcement in international criminal law, American University International Law Review no. 15 (2000): 321 9 Mike Turner, UN Must Never Again be Found Wanting on Genocide, Financial Times, Sept. 15, 2005 available at http://www. ft.com/cms/s/0/545f929a-2618-11da-a4a7-00000e2511c8. html?nclick_check=1 10 A. Lewis The Challenge of Global Justice Daedulus 132 (1) 2003 8 8
With the possible exception of the prevention of genocide a er World War II, no idea has moved faster or farther in the international normative arena the Responsibility to Protect (R2P).11 However, this was wri en in 2006 and does not take into account the developments between 2006 and now. It can even be argued that Weisss view does not suciently take into account the developments before 2006. This will be examined in this article. Another optimistic statement is by Barbour and Gorlick, who argued in 2008 that In the space of just ve short years the concept of R2P evolved from a gleam in a rather obscure international commissions eye, to what now had the pedigree to be described as a broadly accepted international norm, and one with the potential to evolve further into a rule of customary international law.12 Patricia OBrien, the Under-Secretary-General for Legal Aairs at the UN noted more realistically in 2008 that R2P is still fragile.13 Similarly, Alex Perry has noted, That's the theory. It's pre y optimistic. It assumes that the world agrees on the primacy of human rights over national sovereignty and has the resolve to impose that consensus-another heady assumption-on the wayward few. As he notes, R2P is about theory. However, as I argue here, even the theory is being narrowed, never mind the practice of R2P, to the detriment of the original goal set which was to ensure that massive human rights violations were prevented and stopped where they were occurring. This article explores the development of the international legal norm the Responsibility to Protect (R2P) over the last decade. It makes the point that while R2P has its direct origins in a empts to reclassify the notion of sovereignty, and shi it away solely as a right so to also include responsibilities, its real source is the Hague Convention of 1899 and its Martens Clause. This clause codied the legal principles of laws of humanity, and the requirements of the public conscience. The source of R2P is also linked to the 1948 Genocide Convention as well as other human rights instruments. This article further explores what R2P means, why dierent language is used to describe whether it is a concept, a norm or a principle, and
what the implications of this are for R2P. It looks at the shi ing understanding in what R2P is, and why there are diering understandings even by those who support R2P. The reasons why those who support R2P have shi ed their belief about what R2P means are examined, as well as the reasons why this has occurred. The debate about strategy in the context of ghting for the principle, versus the strategy of being pragmatic, and thus going for a narrower version of R2P in the ght to achieve some level of consensus, is assessed. The developments concerning international human rights law and R2P in particular, over the last decade, are examined to determine whether R2P is on the ascendency or on the decline. It is argued that while there have been many positive developments in the protection of human rights over the last 10 years or so, there has been a global trend away from the strong enforcement of human rights against states at the international level. The shi ing pa erns of regional bloc human rights views and voting pa erns on human rights are examined. The Security Councils role on the protection of human rights in this period is examined, both generally, and concerning Burma (2007) and Zimbabwe (2008), particularly. It is argued that the voting pa ern in the Security Council on human rights issues concerning these countries, as well as voting pa erns at the UN in general, reects a shi ing dynamic by various member states in their support for traditional human rights principles and human rights enforcement mechanisms specically. It is argued that shi s have specically occurred as a result of the ascendency of various regional blocs, and that this alignment and voting on human rights issues have changed as a result of these new patterns. Accordingly, R2P and other international law tools have declined in importance and usage, and R2P specically, as an emerging norm, has suered as a consequence. It is argued that even proponents and supporters of R2P have narrowed what they argue R2P means, and should mean, as a strategy to try and ensure that R2P, even in a more limited version, gets more widespread acceptance. International legal developments over the last decade Developments in international law to reduce levels of impunity, over the last 15 or so years, have been enormous. While some domestic trials have taken place since the Nuremburg and Tokyo trials in the 1940s, until 1993 when the International Criminal Tribunal for the former Yugoslavia (ICTY) and 1994 when the International Criminal Tribunal for Rwanda (ICTR) were established, no international
11 Thomas G. Weiss R2P after 9/11 and the World Summit 24 Wisconsin International Law Journal 741 (2006 2007) 12 Brian Barbour & Brian Gorlick, Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims, 20 I . J. R L. 533, 539 (2008) 13 Patricia OBrien Address at the United Nations Torino Retreat 2008, 20 I J. R L. 710, 710 (2008)
criminal tribunal existed to punish those responsible for international crimes.14 Starting with the two ad hoc tribunals there has been a developing commitment to dealing with gross human rights violations. Thus, it can be argued that there has been some degree of practical commitment to R2P. While international justice only became possible at the end of the cold war, had Europeans not borne the brunt of serious international crimes in the former Yugoslavia there would have been no tribunal for Rwanda, or the establishment of hybrid courts in Sierra Leone, Bosnia, Kosovo, Cambodia or East Timor. Obviously the most momentous of these achievements was the coming into force of the International Criminal Court which resulted from the 1998 Rome Conference. That year also saw former Chilean dictator General Augusto Pinochet, who stepped down from power in 1990 a er enacting an amnesty law absolving him of criminal liability, being arrested in London on a Spanish arrest warrant. The eect of this arrest under notions of universal jurisdiction has had great importance for the development of international criminal justice and the rule of law. Critically, many of those who commi ed gross human rights abuses have remained beyond the law. But the developments of the 1990s make it more likely that those who commit gross human rights abuses will not be able to escape prosecution, especially if they leave their own countries. As a result today, a whole range of former leaders who have commi ed the most heinous of crimes either live in their own countries or in exile in greater fear of prosecution than ever before. Some of those who escaped justice by living in exile have included Milton Obote of Uganda, living in Zambia; Haiti's Baby Doc Duvalier in France; Mengistu Haile Mariam of Ethiopia in Zimbabwe; Alfredo Stroessner of Paraguay in Brazil; and Alberto Fujimori of Peru who resided in Japan, until deciding to leave there. One specic case where there have been recent moves to bring a former leader to justice is that of the former president of Chad, Hissein Habr, who has been residing in Senegal. He has been dubbed the "African Pinochet".15 While the courts in Senegal have dealt with his case in the past and allowed him to escape accountability, there are renewed eorts to bring him to book. In September 2005, a Belgian judge issued an arrest warrant for Habr alleging his com14 Ambos, K and Othman, M (eds) New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (2003) Max Planck Institut fr auslndisches und internationales Strafrecht, Freiburg 15 R. Brody, "The Prosecution of Hissene Habre: An "African Pinochet", New England Law Review, 35, Winter 2001, p. 321
mission of atrocities during his eight year rule from 1982. It is interesting to note that in March 2009 Belgium led suit against Senegal at the International Court of Justice (ICJ) demanding that Senegal prosecute or extradite Mr. Habr. The ratication of the International Criminal Court statute by 110 countries has inuenced those countries to import the statutes standards as well as international legal principles into domestic law. The growth of universal jurisdiction will be returned to. However, the role of the ICC is controversial because of the criticism that it faces on a number of fronts, including that it is singularly focused on African issues. The indictment of the President of Sudan is a major issue for some states particularly in Africa who are concerned about the implications and meaning of this for them and other leaders. However, the controversial status of the ICC is partly because a number of important countries have not joined the court. While some argue that the Court, other international tribunals, and international law in general have had li le deterrent eect on the human rights situation around the world, there are indeed signs that there is at least some deterrent eect. The number of conicts around the world declined forty percent between 1992 and 2005.16 This seems to suggest some eect, although there may have been a range of other reasons for the decline. While it is dicult to draw a correlation between the reduction of conict and these developments, at the same time it is dicult to argue the reverse using any data. It is far too early to do so. It thus seems that those who try and debunk the link and the deterrent value of these processes are anti-international law, and o en cra their arguments for ideological reasons. While there is debate about the extent to which these processes work as a deterrent, it is difcult to maintain that these processes have not had an eect in parts of the world where such abuses have occurred. At the very least, it is likely that they have forced some leaders to reect on the possible consequences of their actions. It is still too early and there is a lack of empirical evidence to make a determination regarding the impact of developments in the international criminal justice process on individual conduct. At a minimum, these processes have symbolic value as proof that the international community will do something to reduce impunity.
16 Human Security Report 2005: War and Peace in the 21st Century, Human Security Centre, UBC, New York Oxford University Press 2005
At another level it can be argued that R2P has become relevant in the fact that the Human Rights Council, which was created in 2006, now conducts Universal Periodic Review (UPR) for all UN member states.17 The Council does not limit itself to reviewing those that have ratied specic human rights instruments, but reviews all members. In this way a step forward has occurred in reviewing the domestic aairs of a state. Thus sovereignty again has been blunted and states cannot claim that ma ers in their countries are not available for scrutiny. In this regard there is no claim that only serious international crimes are available for review in the UPR process. All human rights ma ers are subject to examination during the interactive dialogue process. While this is a weakened form of oversight, and does not permit the international community to do anything to prevent human rights abuse or take steps where such abuse is occurring, UPR at least provides a greater degree of scrutiny than before. However, the mechanism of states reviewing other states in a very short period has major limitations, and is subject to the political process that exists amongst states. Why R2P? R2P emerged specically as a concept in the 1990s in the wake of the Rwandan genocide because it was seen that the international community as a whole, and the Security Council in particular, had not been responsive to massive human rights abuse that occurred around the world.18 Particularly in the wake of the Rwandan genocide, questions were asked why the world had let the genocide occur when there were so many warning signs, and why when it did occur so few steps were taken until it was too late to prevent the genocide from occurring. Thus in the mid 1990s a reassessment began of the role and obligations of the international community with regard to human rights abuse, particularly when they were occurring inside a state. A reformulation of the issue of sovereignty thus came to the fore to ensure that the international community had a framework to prevent and respond to gross
17 It shall undertake a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs (General Assembly resolution 60/251, article 5e) 18 Evans, G. The Responsibility to Protect: An Idea Whose Time Has Come . and Gone? 22 International Relations 283, 289 (2008). Weiss, T.G. The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era. 35 Security Dialogue 135, 137 (Jun 2004)
and systematic violations of human rights where the sovereign state is either unwilling or unable to do so....19 As former Secretary-General Ko Annan stated in 199920 when we read the [UN] Charter today we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.21 Thus, the High-Level Panel on Threats, Challenges and Changes stated The Security Council has been neither very consistent nor very eective in dealing with these cases, very o en acting too late, too hesitantly or not at all.22 The issue of the SC will be returned to. For many, the addition of the R2P doctrine was a sign of a new commitment by the international community to dealing with grave violations even if commi ed by a state on its own citizens. Todd Lindberg saw it as revolution in consciousness in international aairs, a departure in the relationship between sovereignty and human rights.23 Gareth Evans has noted that It has taken the world an insanely long time, centuries in fact, to come to terms conceptually with the idea that state sovereignty is not a license to kill.24 However, R2P as an idea, or even as a part of international law, is not new. For the most part, it is a novel concept in name only. Humanitarian intervention (HI), which is really a part of R2P, has its origins at least in the 19th century. R2P also has substantive connections to human rights instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)25
19 Brian Barbour & Brian Gorlick, Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims, 20 I . J. R L. 533, 535 (2008) 20 Kofi Annan, Two Concepts of Sovereignty, Economist, September 18, 1999, 49. See further Chandler, D. The responsibility to protect? Imposing the Liberal Peace 11 International peacekeeping 1, 59 (2004) 21 Kofi Annan, Two Concepts of Sovereignty, The Economist, 352, 18 Sept. 1999, 49-50 22 A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Changes, UN Doc. A/59/565, para 202 (2004) 23 Todd Lindberg, Protect the People, Washington Times, September 27, 2005; available at washingtontimes.com/oped/20050926-092335-2083r.htm quoted in Alex J. Bellamy Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit Alex Bellamy, Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit, Ethics & International Affairs 143169, 144 24 Gareth Evans, Delivering on the Responsibility to Protect: Four Misunderstandings, Three Challenges and How To Overcome Them, address to the Stiftung Entwicklung und Frieden (Development and Peace Foundation) Symposium, 20 Nov. 2007 in Bonn, available at: http://www.crisisgroup.org/ home/index.cfm?id=5190&1=1 25 Available at: http://www.unhchr.ch/html/menu3/b/p_genoci. htm (last accessed 14 April 2008)
adopted in 1948 and a range of other instruments including the African Charter on Human and Peoples Rights.26 The real problem is not that the world did not have the tools or have the concepts to take the necessary steps. The key issue was, and in fact still is, a universal political unwillingness27 to take the necessary steps to enforce the earlier concepts that have been available in international law at least from the 1899 Hague Convention with its Martens Clause. This clause codied the legal principles of laws of humanity, and the requirements of the public conscience. Thus, the preamble to the 1899 Hague Convention states:
The Martens clause provides additional legal protection to individuals and groups during war and peace, and, as such, this clause is a bedrock of positive international human rights law. Even though positive principles date back thousands of years to the origins of natural law, the clause has shaped the course of customary international humanitarian and human rights law. For instance, the clauses unanimous adoption at the Hague conferences and acceptance by various international courts reect international consensus with regard to non-treaty humanitarian law. Many regard the clause as the ocial basis, in codied international law, for protection against crimes against humanity. Its laws of humanity and requirements of the public conscience forms the backdrop for states duties and responsibilities even today. Thus, R2P has its origins over a century ago.28 Already in 1914 the international community told Turkey that its actions in Armenia were international crimes and that it would be held accountable for those atrocities. Thus, the political will to reign in those who commit massive human rights abuses
26 Available at: http://www1.umn.edu/humanrts/instree/z1afchar.htm (last accessed 14 April 2008) 27 Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2003) 28 J. Sarkin The historical origins, convergence and interrelationship of international human rights law, international humanitarian law, international criminal law and international law: Their application from at least the nineteenth century (2007) 1/1 Human Rights and International Legal Discourse 125 at 137
remains suspect. While the world has embarked on processes to hold individuals accountable, holding states accountable and taking steps against a state seems far more out of the reach of the international community in general. The connection of R2P to humanitarian intervention is very clear although it seems that many are backing away from HI being a part of R2P. The UN in its A More Secure World document notes that the primary focus should be on assisting the cessation of violence through mediation and other tools and the protection of people through such measures as the dispatch of humanitarian, human rights and police missions. Force, if it needs to be used, should be deployed as last resort.29 Many human rights activists, as well as concerned citizens around the world, saw the developing notion of R2P in the 21st century as a major positive step by the international community to take steps to prevent human rights abuse. This must be seen in the context of the atrocities commi ed in the twentieth century when around 170 million people have been killed as a result of 250 conicts that have occurred since World War II.30 Problematically, while civilian casualties were only about 5 per cent in World War I, by the 1990s, civilian casualties accounted for about 90 per cent of the total.31 The decline of R2P Today, R2P is not the concept it was in the 1990s or even in 2001. The ICISS recognized that there are three specic responsibilities within the concept: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild; but what this means and even whether these issues are still a part of R2P is unclear.32 While the ICISS report specically stated that the responsibility to prevent has the utmost importance, saying, Prevention is the single most important dimension of the responsibility to protect33 this is now really what R2P means for many, in
29 A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Changes, UN Doc. A/59/565, para 201 (2004) 30 MC Bassiouni The normative framework of international humanitarian law: Overlaps, gaps, and ambiguities (1998) 8/2 Transnational Law and Contemporary Problems 199 at 203 31 S. Chesterman Civilians in War (2001, Lynne Rienner) at 2 32 The International Commission on Intervention and State Sovereignty The Responsibility to Protect (Ottawa: International Development Research Centre for ICISS, Dec. 2001), para 2.32, available at http://www.iciss-ciise.gc.ca/report-en.asp (follow View Document (PDF) hyperlink) 33 The International Commission on Intervention and State Sovereignty The Responsibility to Protect (Ottawa: International Development Research Centre for ICISS, Dec. 2001), at XI, available at http://www.iciss-ciise.gc.ca/report-en.asp (follow View Document (PDF) hyperlink)
practice. Thus, the responsibility to protect in this guise addresses both the root causes and direct causes of internal conict and other man-made crises pu ing populations at risk.34 While the responsibility to react means to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention,35 this is not seen by many today to be a critical part of R2P. Finally the responsibility to rebuild provides, particularly a er a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.36 However, as military intervention has really been avoided in the recent debates about the theory of R2P and certainly in the practice of it, it is hardly relevant at all today in the scope of R2P. Where there was excitement and vibrancy about what the (emerging) norm may mean for human rights protection, now there is a more tepid response to using the doctrine to establish peace and prevent human rights abuse. R2P has suered the consequences of a variety of issues over the last few years. These include the US invasions of Iraq37 and Afghanistan,38 as well as the growing strength of the African, Asian and other regional blocs and the concomitant reduction in the positions of the North American and European regional blocs in the UN system, particularly as regards human rights
34 The International Commission on Intervention and State Sovereignty The Responsibility to Protect (Ottawa: International Development Research Centre for ICISS, Dec. 2001), at XI, available at http://www.iciss-ciise.gc.ca/report-en.asp (follow View Document (PDF) hyperlink) 35 The International Commission on Intervention and State Sovereignty The Responsibility to Protect (Ottawa: International Development Research Centre for ICISS, Dec. 2001), at XI, available at http://www.iciss-ciise.gc.ca/report-en.asp (follow View Document (PDF) hyperlink) 36 The International Commission on Intervention and State Sovereignty The Responsibility to Protect (Ottawa: International Development Research Centre for ICISS, Dec. 2001), at XI, available at http://www.iciss-ciise.gc.ca/report-en.asp (follow View Document (PDF) hyperlink) 37 Nicholas J. Wheeler and Justin Morris, Justifying the Iraq War as a humanitarian intervention: the cure is worse than the disease, in Ramesh Thakur and Waheguru Pal Singh Sidhu, eds, The Iraq crisis and world order (Tokyo: UN University Press, 2006), 460 38 Nye, J.S., Jr. U.S. Power and Strategy After Iraq, 82(4) Foreign Affairs 6073. (2003).
issues.39 These developments have been eected by a range of political relations issues including concerns about the composition of the Security Council, particularly its lack of a democratic composition. Similarly, there have been concerns about who has the veto and when it is used as well as issues such as the growth of universal jurisdiction. Even the indictment of Sudanese president Al-Bashir, which while accepted by many states, has been roundly criticized by many states in Africa and elsewhere, including the African Union. The African Union (AU) accused the ICC of pouring oil on the re by a empting to indict President Bashir of Sudan. The former President of Algeria, Ahmed Ben Bella, who chairs the AU Panel of the Wise, has also criticized the indictments warning of the dangers and that it could cause an unconstitutional removal of the government. The dispute between France and Rwanda over the Rwandan genocide (French complacency and the role of the Rwanda RPF in the commission of atrocities) and between Spain and Rwanda (over the role of a Rwandan commander in the UN peacekeeping mission in Darfur over his role in killings a er the 1994 genocide) has added to the negative reactions to issues such as R2P. R2P has also suered from the debate over principle versus pragmatism. Those who supported and believed in R2P, a er the ICISS conference in 2001, believed they had to make a choice. They could ght a hard long drawn out impossible-to-win ght because of things like the composition of the Security Council, or accept the political realities of the international community and the strengths and composition of those opposed to R2P, and try and get widespread acceptance of a more limited version of it. Many in positions of inuence opted for the latter approach. Bellamy, for example, has argued that in the wake of the Iraq invasion debate, the R2P has been watered down in crucial areas.40 Iraq aected R2P to such a degree that it looked like a stillborn concept.41 Because of the very strong negative reaction
39 On the role of regional human rights institutions see Jeremy Sarkin The Role of Regional Systems in Enforcing State Human Rights Compliance: Evaluating the African Commission on Human and Peoples Rights and the New African Court of Justice and Human Rights with Comparative Lessons from the Council of Europe and Organisation of American States. Inter-American and European Human Rights Journal 199-242 (2009) 40 Alex Bellamy Whether the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit 20(2) Ethics and International Affairs June 2006 147 41 Alex Bellamy Whether the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit 20(2) Ethics and International Affairs June 2009 70
to the US intervention in Iraq, many have argued that the exercise of military power should be based on UN authority instead of US capacity.42 Others have questioned whether the U.N. is doing not too li le but too much and is in danger of falling into the same trap as NATO in Afghanistan and the U.S. in Iraq: the more robust the mission, the harder it is to leave. There has been a back tracking by proponents and supporters of R2P. They see the writing on the wall, and so see that limiting what R2P is and when it can be used is in the long term interests of ensuring that R2P remains viable, even if in a more limited form. Thus, in the context of R2P it has been argued that If something proves dicult it doesn't mean you abandon it. Rather, you reinforce and update it.43 Therefore, it has been argued that the scope and limits of the responsibility to protect are fully and completely understood in a way that is clearly not the case now. In particular, it is to ensure that R2P is seen not as a Trojan Horse for bad imperial, colonial and militarist habits, but rather the best starting point the international community has, and is maybe ever likely to have, in preventing and responding to genocide and other mass atrocity crimes.44 At the same time others ask: Where does the responsibility to protect end? Does it mean ghting a national army? Does it mean supplanting a national government? Does it mean accepting the large losses that would inevitably accompany intervention in Somalia-the site of the world's worst humanitarian crisis-or in totalitarian states like Burma?45 The fears about R2P There has been tremendous reluctance by some, particularly states whose human rights records have long been subject to criticism, to accept R2P. Some of those deeply opposed to R2P argue that it will be used as a pretext for political or military domination, or selective enforcement for discriminatory or political motives, and that as a result it could com-
pound a humanitarian crisis.46 Some link R2P to the interventions in Kosovo in 1999 and Iraq in 2003 which occurred without Security Council authorization. Even the language used to describe R2P suffers from the controversy about the status of R2P. It is described alternately as a norm, a concept, and even a principle.47 The word chosen about the status of R2P reects on the beliefs of the person who uses it: those who believe that R2P has a high status in international using the term norm or emerging norm. Thus, both the ICISS and the UN High Level Panel saw R2P as an emerging principle of customary international law.48 On the other hand, those who see R2P having a diminished status or those who want to imply that there should be less concern use the term concept. Surprisingly however, the World Summit did not refer to the R2P as a concept. It recognized that R2P was more than a concept or an idea.49 This debate is critical as it will determine whether R2P is on an equal footing logically speaking with sovereignty and non-intervention. R2P has been a acked by those who disapprove of the very idea itself but also by those who are concerned by the possible breadth of R2P. Some are also concerned about the whole R2P as a legal obligation. Carsten Stahn thus questions how a concept supposedly designed in 2001 can so quickly become a legal norm and part of the UN.50 Certainly the extent of R2P remains ambiguous. While the ICISS report, as is discussed below, contained notions of the duty to prevent, react, and rebuild today when the R2P begins, the questions of who has the responsibility to protect and who should exercise it all remain clouded in the controversy and ambiguity. Why even the ICISS Report meant a reduced conceptualization of the R2P The ICISS report frames R2P as: where a population is suering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the
46 Brian Barbour & Brian Gorlick, Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims, 20 I . J. R L. 533, 550 (2008) 47 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 4. 48 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 6 49 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 5 50 Casten Stahn Responsibility to Protect: Political Rhetoric or Emerging Legal Norm 101 American Journal of International Law (2007) 99, 100-1
42 Weiss, T.G. The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar Era. 35 Security Dialogue 135, 141 (Jun 2004) 43 Gareth Evans in Perry, Alex., Congo Seeks Protection. 173 Time 5 (2009) 44 Evans, G. The Responsibility to Protect: An Idea Whose Time Has Come ... and Gone? 22 International Relations 283, 289 (2008). See also Bellamy, A responsibility to protect or a Trojan horse?; Paul D. Williams and Alex J. Bellamy, The responsibility to protect and the crisis in Darfur, Security Dialogue 36: 1, 2005, 2747 45 Perry, Alex., Congo Seeks Protection. 173 Time 5 (2009)
international responsibility to protect.51 There are three primary principles embodied in R2P: 1) the responsibility to prevent (to tackle the causes of conict and other human-created crises); 2) the responsibility to react (to take appropriate action where there are compelling circumstances, including coercive steps such as sanctions or even military intervention as a last resort where there are reasonable prospects of success, taking due regard of the issue of proportionality); and 3) the responsibility to rebuild (a er an intervention, to provide assistance in dealing with the causes of the conict, and to assist in reconstruction, reconciliation, and so forth).52 Various criteria must be met for R2P to occur: there must be a just cause; there must be the right intention; proportional means are required; it must be the last resort; there must be reasonable prospects of success; and the authority to exercise HI must be obtained (from the UN Security Council).53 Nevertheless there were skeptics and critics of the ICISS report. Some argued that even this report, wri en by those favorable to R2P, limits the notion itself because of the compromises in the process and gives too much to those opposed to the very concept itself.54 Thus, even the ICISS Report was a compromise. But it was a negotiation and accepted by the likeminded. It was nonetheless narrower than those who proposed a much wider version of R2P. It must be noted that to achieve consensus the ICISS Report at times le issues purposely vague. This has allowed critics (and even supporters) to read various meanings into the report and where necessary narrow what the intent of the Commission was.55 Thus, some have seen the ICISS Report as limiting R2P unduly. Others see that the goal was to allow humanitarian intervention in ways not permitted to occur before and that to make this more portable, prevention as rebuilding was tagged on.56
51 At para 13 52 ICISS Report at xi 53 R. Hamilton The responsibility to protect: From document to doctrine - but what of implementation? (2006) 19 Harvard Human Rights Law Journal 289 at 289 54 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 54 55 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 63 56 Weiss quoted in Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 32
However, even the authors of the ICISS Report realized the massive political connotations of what they were recommending. The report noted that "as a matter of political reality, it would be impossible to nd consensus ... around any set of proposals for military intervention which acknowledged the validity of any intervention not authorized by the Security Council or General Assembly." Developments for R2P a er the ICISS Conference Understanding the diculty in ge ing a wide R2P concept accepted, States and others around the world who believed in R2P had a choice. They could ght to get R2P accepted as a broad concept, or se le for a more realistic option a narrower version of R2P which had more chance of widespread acceptance. One country that proceeded with the realist approach was Canada who sponsored the ICISS Report, which adopted a long term approach.57 Thus, the Prime Minister of Canada, Paul Martin, in a speech to the UN General Assembly in September 2004 argued for a watered-down version of the responsibility to protect. He argued that "the responsibility to protect is not a license for intervention; it is an international guarantor of political accountability."58 Thus, some have a empted to win over those against R2P by setting the threshold for intervention very high and by arguing that the Security Council ought to authorize any such action.59 A proposal for a code of conduct for the permanent members of the Security Council was dropped.60 This was seen to be critical in making the Security Council work more eectively,61 but with it came the probability of less support precisely from those quarters. A number of others have adopted a similar strategy of taking a pragmatic approach. UN Secretary-General Ban Ki-Moon has adopted the approach of trying to get acceptance of a narrower version of R2P. He has argued that:
57 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 70 58 Michael Byers, High Ground Lost on UNs Responsibility to Protect, Winnipeg Free Press, September 18, 2005, p. B3 59 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 74 60 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 74 61 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 74
The strategy of a empting to build a consensus by limiting the reach of R2P has been criticized. It has been argued that Unilaterally conceding your most important point is hardly the optimal way to commence negotiations, since the other side will invariably seek further concessions.63 The result of this however is that as Bellamy notes When governments, regional organizations and the UN talk about R2P they mean not the concept put forward by the ICISS but the principle endorsed by world leaders at the 2005 World Summit and rearmed by the Security Council in 2006.64 UN Secretary-General Special Advisor Ed Luck has noted that it is important not to confuse what we would like the R2P principle to be with what it actually is.65 Lucks language when he refers to R2P also seems to narrow what R2P means. He refers to R2P as a concept, a lesser connotation than a norm or even an emerging norm. For many, though, this undercuts what R2P was supposed to be about and whether the international community is willing to take the necessary steps where human rights abuses occur. Why even the World Summit was a setback for R2P There was a great deal of exuberating at the World Summit in 2005 when R2P was included in the nal document. Bellamy notes that the adoption of R2P was one of few real achievements of the 2005 World
62 New York, 15 July 2008 Secretary-Generals address at an event on Responsible Sovereignty: International Cooperation for a Changed world Secretary-General Defends, Clarifies, Responsibility to Protect at Berlin Event on Responsible Sovereignty: International Cooperation for a Changed World SG/SM/11701http://www.un.org/News/Press/docs/2008/ sgsm11701.doc.htm 63 Michael Byers, High Ground Lost on UNs Responsibility to Protect, Winnipeg Free Press, September 18, 2005, p. B3 64 Alex Bellamy The Responsibility to Protect and the problem of military intervention International Affairs 84: 4 (2008) 615 639, 622 65 Edward C. Luck, The responsible sovereign and the responsibility to protect, Annual review of United Nations affairs 2006/2007 (New York: Oxford University Press, 2008), vol. 1, pp. xxxiiixliv quoted in Alex Bellamy The Responsibility to Protect and the problem of military intervention International Affairs 84: 4 (2008) 615639, 623
Summit.66 Stahn has argued that the fact that R2P is contained in the World Summit document is testimony to a broader systemic shi in international law, namely a growing tendency to recognize that the principal of state sovereignty nds its limits in the protection of human security.67 As has been noted, "I don't know how the U.N. ever passed that resolution," says Anthony Holmes, head of the Africa program at the Council on Foreign Relations in New York City."Maybe all the delegates had a great champagne reception before they signed, but I suspect that many of the countries that voted for it then would never vote for it again."68 Certainly, something must be made of the fact that the World Summit document was adopted unanimously. However, the fact that R2P was only agreed to and nalized at the last moment as a result of deals made has been missed in the excitement. This fact undercuts the importance of even having R2P in the documents. It was in the document because of negotiation and compromise and not because of general and widespread acceptance of the norm. While the inclusion of R2P in the World Summit document was hailed as signicant, what was missed, or ignored, was that the language used might in future be used to limit its availability. The description and availability of R2P was signicantly reduced as a means to include R2P in the World Summit document. It recognized that the international community, as a collective, has the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.69 The World Summit document noted that states have a duty to ensure that their citizens are not subject to genocide, crimes against humanity, war crimes, or ethnic cleansing. The focus on these specic crimes narrows when R2P may be used. Thus the notion of the sovereign state and the concept of non-interference will apply as long as these enumerated crimes are not involved.70 Thus, while some have seen R2P extending to where HIV/AIDS, proliferation of nuclear weapons, global warming, poverty, or other issues are occurring, these are now
66 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 2 67 Casten Stahn Responsibility to Protect: Political Rhetoric or Emerging Legal Norm 101 American Journal of International Law (2007) 99, 100 68 Perry, Alex., Congo Seeks Protection. 173 Time 5 (2009) 69 Brian Barbour & Brian Gorlick, Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims, 20 I . J. R L. 533, 533 (2008) 70 Brian Barbour & Brian Gorlick, Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims, 20 I . J. R L. 533, 540 (2008)
not seen to be on the same level as the listed crimes.71 The General Assembly did nd, however, that the Security Council would examine the issues and decide when and if humanitarian intervention should occur should peaceful means be inadequate.72 What must also be realized is that the document proceeded to limit when R2P applies to "genocide, war crimes, ethnic cleansing and crimes against humanity." The last minute negotiation changed the language, content, structure and threshold of when R2P came into being.73 What was the inability or unwillingness of a state to protect its citizens became a manifest failure.74 Thus, the threshold when R2P comes into operation became when the national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.75 Thus, this version of R2P has been aptly named R2P lite.76 Gareth Evans has thus argued that The 2005 General Assembly position was very clear: When any country seeks to apply forceful means to address an R2P situation, it must do so through the Security Council.77 However, this is not so clear.78 The
71 Brian Barbour & Brian Gorlick, Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims, 20 I . J. R L. 533, 554-55 (2008); see also i Gareth Evans, President of the International Crisis Group, Delivering on the Responsibility to Protect: Four Misunderstandings, Three Challenges and How To Overcome Them, address to the Stiftung Entwicklung und Frieden (Development and Peace Foundation) Symposium, 20 Nov. 2007 in Bonn, available at: http://www.crisisgroup.org/home/index. cfm?id=5190&1=1 72 G.A. Res. 60/1, 139, U.N. Doc. A/RES/60/1 (Oct. 24, 2005) 73 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 90 74 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 90. 75 2005 World Summit Outcome Document, World Health Organization, 15 September 2005. p.31; http://www.who.int/hiv/universalaccess2010/worldsummit.pdf; The 26 April 2006 United Nations Security Council Resolution 1674, adopted by the United Nations Security Council, "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict. Resolution 1674 (2006); http://daccessdds.un.org/doc/UNDOC/GEN/ N06/331/99/PDF/N0633199.pdf?OpenElement 76 See Thomas G. Weiss, Humanitarian intervention: ideas in action (Cambridge: Polity, 2007), 11617. See also Alex Bellamy The Responsibility to Protect and the problem of military intervention International Affairs 84: 4 (2008) 615639, 616 77 Evans, G. Russia in Georgia: Not a Case of The Responsibility to Protect. 25 New Perspectives Quarterly 4, 53-55 (Fall 2008) 78 Alicia L. Bannon, The responsibility to protect: the UN World Summit and the question of unilateralism, Yale Law Journal 115: 5, 2006, 115665
African Union and some of the various sub-regional actors in Africa have seemingly decided that on occasion they will intervene even without UN Security Council authorization.79 Thus, who authorizes R2P has become part of the debate about when R2P exists, who applies it and under what circumstances.80 For some, limiting who authorizes it may mean that more states might support it. It encourages those states that are most critical of R2P to be more likely to support it if they have the power to control its use by using the veto in the Security Council. This issue will be returned to later. However, the fact that the World Summit document was unanimous shows that the EU and African States were able to overcome the objection of those states opposed to R2P. The further decline of R2P since 2006 The development of R2P did not trigger the same alarm bells in Africa as it does in other regions of the world.81 At the World Summit R2P was initially supported vigorously by a number of African countries.82 Now however, a number of African countries have moved their positions, and are supporting, at least as far as what R2P means in practice, countries that have opposed R2P.83 As Gareth Evans has argued, There has been a falling-away of overt commitment to the norm in sub-Saharan Africa (although in substance still remaining a signicant theme in the doctrine of the AU and some of the sub-regional organizations)84 A number of states have thus backtracked on their endorsement of the World Summit document and in particular their support for R2P.85 Even countries which supported international justice for their own political interests have seemingly
79 Jeremy Sarkin The Role of the United Nations, the African Union and Africas Sub-Regional Structures in Dealing with Africas Human Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect 53 (1) Journal of African Law 1-33 (April 2009) 80 See Yevgeny Primakov, UN process, not humanitarian intervention, is worlds best hope, New Perspectives Quarterly, 2 Sept. 2004, wwwdigitalnpq.org/global_ services%20viewpoint/02-09-04Primakov.html 81 Greg Puley The Responsibility to Protect: East, West and Southern African Perspectives on preventing and responding to humanitarian crises Project Ploughshares September 2005 19 82 Alex Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (2009) 89 83 William Pace and Nicole Deller, Preventing Future Genocides: An International Responsibility to Protect, World Order, 2005, Vol 36, No 4, 15, 25 84 Evans, G. The Responsibility to Protect: An Idea Whose Time Has Come ... and Gone?; 22 International Relations 283 (2008) 85 Alex Bellamy The Responsibility to Protect and the problem of military intervention International Affairs 84: 4 (2008) 615 639
reversed course. Thus, a greater divergence has occurred between the West and African countries. While the United States and Britain a empted to use the R2P to address the cholera outbreak in Zimbabwe their a empts were blocked by other permanent members of the Security Council, an action supported by other African states.86 African states have accused those wishing for intervention in Zimbabwe as a cover for colonial-style interference.87 While the European and African positions on intentional justice and human rights in genocide were largely in agreement in the year following the Rwanda genocide and the development of the justice cascade, a reversal in such unanimity has occurred of late. This can be seen in a number of developments. The Fi h Commi ee of the General Assembly (Administrative and Budget) refused to accept the appointment of a special adviser to the Secretary-General to focus on R2P and only agreed to appoint Edward Luck when the term R2P was removed from his title.88 Shi ing international relations implications for R2P: the global a ack on human rights The issue of the a ack on R2P as a concept, so as to achieve a reduction in its breadth and application, is not a singular a ack. The a acks must also be seen in the context of a wider a ack on human rights protection in general, and on the mechanisms that can, and do, provide human rights oversight, or a empt to enforce human rights standards globally. Thus, the last few years have seen a empts by some states to reduce the ecacy of mechanisms and standards that promote human rights promotion and protection around the world. The concept of R2P has been seen by those wishing to limit human rights protection as a problem, and the mechanisms that promote such rights as obstacles. These groups have seen the need to limit R2Ps availability and value. The a empts to reduce the usefulness and breadth of the R2P must be part of a much larger effort to eect the protection of human rights standards. As this occurs there are those who see compromise as a means to obtain consensus. As a means to obtain greater support, or to get even those opposed to the very idea of R2P itself to be supportive to at least some degree, some are trying to limit what the
86 Condoleeza Rice Frustrated Over Zimbabwe, The Zimbabwe Guardian, Dec. 13, 2008 at http://www.talkzimbabwe.com/ news/117/ARTICLE/3916/2008-12-13.html 87 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 15 88 Fifth Committee of the General Assembly, GA/AB/3837, 4 March 2008. Alex Bellamy The Responsibility to Protect and the problem of military intervention International Affairs 84: 4 (2008) 615639
concept means, and where and how it ought to be practically relevant. This may ensure that R2P itself becomes just a broad concept, rather than having the practical eect of obligating the international community to take specic and denite steps when gross human rights abuses occur. The limiting of R2P to only four crimes is a major limitation on the protection of human rights. Where atrocities do occur the struggle will be on what types of crimes are occurring, as seen with Darfur. It can also be misapplied to the detriment of the concept itself. This can be seen during the recent Georgia-Russia conict when the Russian Foreign Minister invoked R2P as one of the justications for Russias use of force.89 In this regard it has noted that:
Limiting which crimes fall into R2P and the specific steps that should be taken ensures less action in practice as can be seen over the last few years. The issue of who supports R2P and who does not has major implications for human rights in general. The human rights agenda globally and at the UN has shi ed over the last few years. This can be seen through a variety of issues and in a number of events through which a shi can be ascertained in the way human rights issues are viewed and handled. In September 2008, a study found that while EU positions on human rights in the General Assembly received more than 72 percent support in the 1990s, they only received 48 percent support (2006 2007) and 55 percent support in (2007 2008).91 The rise in the regional bloc system and the shi ing support of these blocs from the EU to others is blamed for these changes. Thus, the European Council on Foreign Relations found that the EU had lost a lot of support it previously enjoyed from many of the
89 The Georgia-Russia Crisis and the Repsonibsility to Protect: Background Note, Global Centre for the Responsibility to Protect (2008) at http://globalR2P.org/pdf/related/GeorgiaRussia.pdf 90 Evans, G. Russia in Georgia: Not a Case of The Responsibility to Protect. 25 New Perspectives Quarterly 4, 53-55 (Fall 2008) 91 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London
African states.92 Latin America too has diverged from the European and North American position on issues of human rights and international law, pushing a stronger development agenda.93 While there was a strong alliance in the 1990s between Western and Islamic states especially during the conict in the former Yugoslavia, some of these countries are among the staunchest opponents of international action of the UN to protect individual rights (while the US and EU avail criticizing them for fear of losing alliances in the war on terror).94 The United States has also noted that support for its positions at the UN has fallen from 50.6 percent in 1995 to 23.6 percent in 2006.95 Whilst these numbers are challenged by some who criticize the methodology used in arriving at these numbers,96 it has been argued that the voting score for the US on human rights issues fell from 77 percent is 1997 98 to 30 percent in 2007-8.97 The European Council Report notes that the UN agenda is increasingly being shaped by China, Russia and their allies.98 Support for the positions of China and Russia in the same period went from 50 percent to 74 percent.99 The implications of this the Report notes are that:
This is not isolated to the GA as at the Human Rights Council the EU position has been defeated in more than half the votes.101 It has also been argued that at the Human Rights Council there have been a empts to end the Councils oversight of the various country human rights situations. Only the threat by European states to withdraw from the HRC and their agreement to end human rights monitoring of some countries, ended this a empt.102 It is in the Security Council where there has been the most dramatic developments for human rights in general and R2P specically. At the Security Council the Chinese and Russians used the veto on two important human rights resolutions (Burma in 2007 and Zimbabwe in 2008). These events were important tests for R2P. Arguing why Russia used the veto, Yuri Fedotov, the Russian Ambassador to the UK, wrote:
103
To this the non-governmental organization IRP2 responded:
92 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London. 4 93 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London. 15 94 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 15 95 www.state.gov/p/io/concept/utgproc 96 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 18 97 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 25 98 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 1 99 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 2 100 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 1
Thus, Burma and Zimbabwe were in many ways tests of whether R2P may be implemented in practice in the future. The fact that China and Russia used their vetoes (and used them jointly) on both these occasions is signicant. They have very important implications for R2P. The use of the veto is an interesting issue in this context. The veto power has been exercised 261 times in the UN since 1946. Some of these vetoes
101 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 3 102 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 5 103 The Guardian Thursday 17 July 2008 104 http://www.iR2P.org/2008/07/18/Russian-ambassador-challenges-R2P-principle
have been exercised on the same resolution so the actual number of resolutions vetoed is actually much less. Further the bulk of the vetoes were exercised in the period between 1946 and 1995, when 244 out of the total of 261 vetoes were exercised. Between 1996 and 2008, the veto was only used 19 times, again at times on the same resolution. Between 1946 and 2008 Russia used the veto on 124 occasions, the United States 82 times, the United Kingdom 32 times, France 18 times and China only on 6 occasions. It must be remembered though that the seat now held by China on the Security Council was occupied by Taiwan between 1946 and 1971. Taiwan only used the veto once. The use of the veto has declined in recent years. The veto only has been exercised on 14 occasions over the last 10 years. In fact, the US has exercised 10 of the last 14 vetoes. The last time before 2007 and 2008 that Russia and China jointly exercised the veto was in 1972. The veto has thus been used sparingly and has been used jointly by Russia and China on very few occasions. However, it is not only the use of the veto which is important but also the threat of the veto. This o en ensures that resolutions do not even make it to a vote. In addition, resolutions that are adopted have been watered down as a result of the threat of the use of the veto.105 The use of the veto has had signicant impact. Today, the veto is rarely exercised, but when it is, its use is signicant. Conclusion It is clear that there have been massive developments in international law over the last 15 years or so. As a result of the formation of the various international courts since 1993, international law in general, and international criminal law specically, have dramatically grown in substance and stature. However, these developments have really been to ensure that individuals are held accountable and not states. Where state accountability has become important is in the various regional systems. However, it is really only the Inter-American and European court systems that are functional in the judicial sense. The African court has yet to hear a case and the ASEAN (Association of Southeast Asian Nations) and Arab systems still do not have such institutions. The sub-regional court systems have however begun to ex their judicial muscles over the last few years. R2P has beneted from these developments, to some degree, although it has suered at the same time from these developments as now more people and more states fear what such a concept might
105 The European Council on Foreign Relations Global Force for Human Rights? Are Audit of European Powers at the UN (Richard Gowan and Franziska Brantner) 2008 London 6
mean in practice. There have been enormous shi s politically over the last decade which has had a tremendous impact on human rights protection. R2P has been impacted signicantly by these shi s. Nevertheless, the eects of the justice cascade are that major perpetrators of human rights abuse are being held accountable. This is true not only in the international arena but also as a result of universal jurisdiction where courts in a number of countries are holding perpetrators liable for the human rights crimes they have commi ed even where there is no connection to the country where the prosecution occurs. While there is some room for optimism about the developments on a range of human rights norms and standards, such as the adoption of the Convention on the Rights of Persons with Disabilities (2006), the International Convention for the Protection of All Persons from Enforced Disappearance (2006), the Declaration on the Rights of Indigenous Peoples (2007), and a protocol to the International Covenant of Economic Cultural and Social Rights, other developments are not so positive. The lack of progress on various country situations, however, indicates that there is li le room for hopefulness. Yet at one level R2P has more meaning. While in 2002 there were 31,000 peacekeepers on the ground in Africa (from the UN and the African Union (AU)), by 2007 the number was more than 60,000.106 The total of UN peacekeepers around the world now stands at more than a 110, 000, at a cost of $8 billion annually. Signicantly, the number of conicts around the world is assessed to have declined 40 per cent between 1992 and 2005.107 How the reform of the Security Council, if it occurs, will aect these issues and R2P, in particular, is unclear. The critical issues that need to be resolved include whether the Council will be enlarged with more permanent members, who will the new members be, and who will have the veto? These determinations will play a critical role in shaping the developing of R2P but also the international communitys response to massive human rights violations. There has been negative spino for R2P because of the situations in those countries. Criticism directed at the ICC by Sudan, but also by others because of its Africa focus, has allowed a groundswell in certain parts of the world to higher opposition against R2P. The future of R2P in practice does not look rosy. The commitment that came in the wake of the
106 UN Department of Peacekeeping Operations Background Note, available at: http://www.un.org/Depts/dpko/dpko/bnote.htm (last accessed 14 April 2008) 107 Human Security Report 2005: War and Peace in the 21st Century (2005, Oxford University Press) at 22
genocide to never let such events occur again seems to be on the wane. Events seem to have bypassed the notion of R2P becoming the norm it was destined to become. If it is to become a practical and realizable goal then much needs to be done by those who support it. A shi in the membership of the Security Council will probably not bring greater support to R2P. While it is likely that the rhetoric of R2P will continue to be contained in SC resolutions the lack of it being applied in practice seem to indicate that the possibility of R2P being realized is slim. It is possible that some cataclysmic event may again shi support towards the realizing of the goal of international action where massive human rights violations are occurring. At present though where the violations are occurring they do not seem to be sizeable enough to warrant R2P in the form of humanitarian intervention.108 When such intervention does occur by the Security Council in a part of the world where Security Council members have an interest or where it occurs into a developed country, R2P will be seen to have arrived.
108 See further Jeremy Sarkin and Carly Fowler "The Responsibility to Protect and the Duty to Prevent Genocide: Lessons to be Learnt from the Role of the International Community and the Media during the Rwandan Genocide and the Conflict in the Former Yugoslavia" Suffolk University Transnational Law Review (forthcoming Fall 2010)
65
Risks, Early Warning and Management of Atrocities and Genocide:

Lessons from Statistical Research
1. Introduction Not only governments carry out calculated atrocities against civilians during civil wars (Valentino, Huth & Lindsay, 2004), but armed groups also do so. (Humphreys & Weinstein, 2006; Eck & Hultman, 2007). Atrocities here means deaths due to the intentional killing of civilians, and as such excludes indirect deaths caused by disease, starvation, and cross-re (cf. Eck & Hultman, 2007). This category of violence includes some elements, such as targeted violence by governments, of standard denitions of genocide and politicide (G/P), but excludes others, namely intentional starvation and other indirect methods.2 Moreover, and unlike common denitions of genocide, it does not require that victims of violence can be distinguished on ethnic or political grounds. Excluding the Rwandan genocide, data for the period 1989-2004 show that armed groups were responsible for roughly two thirds of the very conservatively estimated 78,000 intentional direct killings of civilians in civil conicts (Ibid.). Not counting the Rwandan genocide, this means that during the past almost 20 years, it is not governments but rebels that carry out the majority of atrocities against civilians in civil conicts. Addressing atrocities against civilians will thus involve dealing with armed groups more than with governments. However, it is important to remember that some rebel movements are proxies for - or condoned by - governments inside or outside the country in question. The role of governments in atrocities could thus also be indirect and larger than the above ratio may suggest.
1 Birger Heldt is Director of research at the Folke Bernadotte Academy (Sweden), and associate professor of Peace and Conflict Research. He has been project leader at the Swedish National Defence College, and post-doctoral fellow at Uppsala University and Yale University. His current research is mainly concerned with peacekeeping operations and preventive diplomacy. G/P is here defined as The promotion, execution, and/or implied consent of sustained policies by governing elites or their agents or, in the case of civil wars, either of the contending authorities that are intended to destroy, in whole or part, communal, political or politicized ethnic groups. (Harff, 2003: 58)
This articles point of departure is the UN Secretary-Generals ve-point action plan on genocide, presented in April 2004 at the United Nations, that stresses the need for early warning (point 4) and swi and decisive (including military) action (point 5). First, this article addresses the question: to what extent can early warning research contribute to the early warning toolbox? Second, what can we learn from research on military operations aimed at halting G/P and atrocities? The focus is on connecting insights at the policy or strategic level from broad comparative studies (i.e., statistical studies) and the ambition is to complement the insights generated by the extensive case study literature on the subject ma er. This brief article is organised as follows. Section 2 highlights the dierence between risk models and early warning models, and presents argument for the choice between case studies and statistical studies as a basis for predicting the development of individual cases. There is also a summary of statistical research dealing with risk assessments and early warning of G/P and mass atrocities. Section 3 focuses on insights from research dealing with the prevention and management of G/P and mass atrocities, and a empts to identify some general lessons or pa erns. The fourth and nal section attempts to divine the future in terms of the division of labour between the UN and non-UN actors, as well as more robust and proactive use of force by UN operations. 2. Risk Assessments and Early Warning Green & Armstrong (2007) report that experts ability to forecast the development of conicts increased (39%) when they were asked to base forecasts on similar cases in the past as compared to treating the case as unique. Moreover, expert forecasts not based on similar cases in the past (but rather built on the assumption that the case was unique) were not more accurate than forecasts made by novices, and the accuracy was pre y much identical to what could have been expected by chance alone (Ibid.: 12). Given that retrospectively based predictions are superior to the unique case approach, should
predictions be based on case studies or on statistical studies? Statistical studies oer broad retrospective lessons and empirical scope, but at the cost of detailed, case-specic insights. The value of scope and broad lessons is that the big picture helps us to think more clearly on some issues and puts case specic insights into a broad perspective. In addition, statistical studies identify the average eect of certain factors, and as such contribute to more precise predictions and more ne-tuned policy implications and policy prescriptions. For these reasons this article focuses on ndings from statistical studies that so far are very rare. This means that the insights oered from statistical studies will be very limited. A stock-taking of research just a few years from now will hopefully generate a broader range of insights. Before discussing empirical ndings, it is important to make a distinction between risk assessments and early warning assessments (e.g., Schmeidl & Jenkins, 1998; Har, 2006). Risk assessments identify the underlying conditions that place states at risk for G/P (Ibid.), but neither reveals when a G/P may take place, nor its expected magnitude. Risk assessments can be used for identifying countries that should be put on a watch list where events are followed in detail on a daily basis in order to identify early warning signs of an emerging or recently initiated G/P that warrant action by the international community (Har, 2006). In contrast, early warning assessments monitor countries at risk in order to identify which countries are actually about to experience G/P at any moment in time. Turning to empirical ndings and rst focusing on government behaviour with regard to G/P, there are no published statistical models focusing on early warning, while Har s works from 2003 and 2005 are the only statistical studies focusing on risk assessments.3 The risk for the onset of G/P is reported to be inuenced by an ongoing internal war (+); revolution or regime collapse (+); autocratic regime type (+); history of mass killings (+); ideological orientation of ruling elite (+); ethnic character of ruling elite (+); trade openness (-); and severe economic and political discrimination of minorities (+). As for the phenomenon of atrocities, a few statistical studies that in practice constitute early warning but not risk assessments have been published in recent years. Valentino, Huth & Lindsay (2004) report that rebel support and military threats against gov3 For an excellent review of past decades of research on G/P, see Straus (2007)
ernments increase the risk for government atrocities, which are seen as a government strategy: when the government is losing ground, the risk increases. A similar nding is reported in a study of the Spanish Civil War (Herreros & Criado, 2009). Similar to this, and referring to the Vietnam War, Kalyvas & Kocher (2009) report that indiscriminate bombings and shelling by government forces took place mainly in contested areas, that is, where the parties were under pressure from opposing forces. As for rebel behaviour, Humphreys & Weinstein (2006), focusing on atrocities in terms of rape, amputations, the , etc., by rebels in Sierra Leone, report that poverty, co-ethnicity, social ties, local military dominance, among other factors, did not prove statistically signicant. Meanwhile, unit discipline in terms of punishment for bad behaviour against fellow rebels as well as civilians strongly inuenced the risk for abuse: when unit discipline was low, the risk for abuse increased sharply. These ndings are consistent with the ones reported in the study of the Vietnam War (Kalyvas & Kocher, 2009). In this war, the insurgent side was highly disciplined, and resorted almost only to discriminate and targeted violence against carefully identied individual government (South Vietnam) collaborators. As of yet, there are no statistical studies that have assessed whether rebel groups may also resort to atrocities when they come under pressure from government troops. 3. Prevention and Management G/P may be more easily discoverable than atrocities in general, as the phenomenon is intentional and systematic, and by denition carried out or sponsored by governments. If pre-planned for some time, it may in theory also be possible to discover early warning signs. In contrast, mass atrocity events may be systematic but also random, and an expression of planned or unplanned acts by governments, undisciplined government agents, as well as individual cells or units (sometimes poorly disciplined) of non-state actors rather than an expression of a systematic (and sometimes pre-planned) behaviour. This suggests that to the extent that mass atrocity early warning signs may be identied, they will probably be spo ed at a very late stage, if at all. For instance, it appears dicult to predict with any useful degree of certainty when rebel units will become less disciplined, or when governments will lose ground against rebels (which have both been found to increase the risk for atrocities). Late warning (or no warning at all) leaves the international
community with the option of late action, which involves a empts to halt or manage ongoing instances of mass atrocities. During the past 20 years a number of UN led as well as non-UN led peacekeeping operations (PKOs) have repeatedly and to dierent extents a empted to address war induced humanitarian crises (genocide, starvation, mass atrocities, etc.) arising during the course of an operation, but few of the operations were initially deployed for that sole purpose (cf. Roberts, 2006; Seybolt, 2008; European Union, 2009; United Nations, 2009; Center on International Cooperation, 2007, 2008, 2009) and even fewer used (or were forced to use) force reactively or proactively to halt G/P or atrocities. Among the UN operations, two stand out in terms of their robust methods for addressing G/P and atrocities carried out by armed groups. First is the United Nations Protection Force (UNPROFOR) in Bosnia that established protected zones, delivered humanitarian aid, and on occasions used force beyond self-defence. The second prominent example is the United Nations Mission in the Democratic Republic of Congo (MONUC), which may be said to be at the front line of the practice of robust pro-active use of armed force by UN operations against armed groups spoiling the peace and/or commi ing atrocities. However, no UN operation has been initially deployed for the stated primary task of protecting civilians from genocide or atrocities, and has used force beyond self-defence to achieve those goals. Close cases include the African Union/United Nations Hybrid Operation in Darfur (UNAMID) deployed in 2007 as a successor to the African Union Mission in Sudan (AMIS) that had been deployed since 2004. While having a focus on protecting civilians from human rights abuses, it has not developed a robust practice of using force reactively or pro-actively. A similar case is the related United Nations Mission in the Central African Republic and Chad (MINURCAT) deployed in 2007 in the border areas of Chad, Sudan and the Central African Republic to deal with spill-over eects from the Darfur conict. In contrast, multilateral non-UN interventions deployed primarily and initially to halt ongoing G/P and atrocities are rather common (Roberts, 2006; Heldt & Wallensteen, 2007; Seybolt, 2008, European Union, 2009; United Nations, 2009; Center on International Cooperation, 2007, 2008, 2009), and by early 2009 they included:
- Operation Uphold Democracy, Haiti 1994. - NATOs invasion of Kosovo 1999.
- The International Force for East Timor (INTERFET) 1999. - The EU Military Operation in the Democratic Republic of Congo (EUFOR DRC/Artemis), 2003. - The Regional Assistance Mission to the Solomon Islands (RAMSI) 2003. - The Multinational Interim Force in Haiti (MIFH) 2004. - The EU Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR Tchad/RCA) 2008.
With the exception of Kosovo and Haiti, these interventions were aimed at non-governmental actors, though in the cases of Timor and Darfur, they targeted non-governmental actors that were seen as government proxies. Only the Kosovo operation and RAMSI were not initially authorised by the UN Security Council, and apart from the EUFOR operations in the DRC and Darfur, all were successful in ending atrocities and armed conict. This is a striking dierence to the UN cases above. Perhaps not surprising, the successful interventions were large and conned to small countries (Haiti, Kosovo, Timor, Solomon Islands), which is also where this kind of operations in general were carried out. Another observation is that all operations were either followed by PKOs (Haiti, Kosovo, Timor), developed into PKOs (Kosovo, Solomon Islands), or were PKOs from the very beginning (Darfur, the DRC). The preliminary insight oered from these cases is that multilateral interventions have worked well when robust and applied to small countries/territories, and this pa ern carries implications for the debate on whether the genocide in Rwanda could have been stopped by even a rather small but robust international presence. Since the UN has never deployed an operation with an initial and sole task of protecting civilians from genocide or atrocities and used force beyond self-defence to achieve those goals, there are no lessons from history to determine whether or not such a presence would be eective. Apart from the large amount of case studies and anecdotal evidence there is no published statistical study on the direct or operational prevention or management of mass atrocities, and only one statistical study on the management of G/P. Krain (2005) looks at ongoing G/P and a empts to predict their magnitude for the period 1955 to 1997. In contrast to impartial interventions, anti-perpetrator/biased interventions are reported to ma er in a positive manner regardless of size. As Krain notes, the UN
was always impartial during the period studied, and that makes it impossible to assess whether it can halt G/P should it be given an anti-perpetrator mandate. Another challenge for assessing the general impact of UN operations is that for dierent reasons the UN seldom intervenes before or during civil wars, even when violence is anticipated. Yet a er civil wars, the risk for G/P is historically almost absent. This means that there are few examples in history where UN operations have actually been faced with ongoing large-scale atrocities. 4. Final Reections The so far very limited amount of statistical research related to the early warning of G/P and mass atrocities has so far added li le to the early warning toolbox in terms of identifying useful immediate precursors or early warning indicators. It simply appears dicult to predict with any certainty when rebel units will become less disciplined, or when governments will lose ground against rebels, which in turn increase the risk for atrocities. And even if early warning signs be identied, it may be dicult to mobilize the international community or regional actors to intervene proactively. First, all predictions will be uncertain; second, pre-emptive action beyond political intervention is dicult from a legal perspective; third, without clear evidence of an actual ongoing systematic campaign of G/P or mass atrocities, few actors would want to consider interventions before all other non-military preventions tools have been exhausted. The phenomenon of peacekeeping originated neither at the UN, nor at its predecessor the League of Nations, but rather with individual states. Instances of peacekeeping can in fact be traced back to at least the mid-19th century (Heldt, 2008). Since the early 1950s there has also in general been a pre y even division of labour between the UN on the one hand, and intergovernmental organisations, ad hoc coalitions, and individual states, on the other, in terms of the number of PKOs (Ibid.). Non-UN operations are thus an integral element of international conict management. This may not be surprising when considering that Article 52 of the UN Charter implies that the UN should, in theory, be the last resort rather than rst resort when it comes to dealing with threats to international peace and security, and that the UN should be approached only when regional initiatives have failed to materialise or make progress. There has also been a division of labour in terms of mission type: in intrastate conicts regional actors have with but a few exceptions
carried out traditional or peace enforcement operations, whereas the UN has been much more prone to carry out multidimensional operations involving peace-building tasks such as democracy support and security sector and rule of law reform. The international capacity to address emerging G/P and atrocities in the absence of an already deployed PKO needs to be increased, but there appear to be few clear historically evidence based reasons for why this task should be increasingly transferred to the UN instead of maintaining the present division of labour. To begin with, the historical template for this special kind of operations does not involve UN operations. There is thus an overall positive template in history of a division of labour for how to deal with such crises, and this reduces the need to move the responsibility to the UN. Neither is use of force even pro-active against emerging spoilers or perpetrators of atrocities during ongoing operations novel for non-UN operations, as witnessed by the operations deployed in, e.g., Liberia, Sierra Leone, and the EU operations in the Democratic Republic of Congo. There is still an important difference: none of these non-UN operations where multi-functional, that is, were tasked with nationbuilding tasks and had considerable amounts of non-military personnel whose security has to be considered. This means that the decision to use force beyond self-defence is o en a more complex issue for UN operations than for non-UN operations. There has meanwhile been a movement in the direction of a larger permissiveness regarding the use of force by the UN to address human rights violations that emerge during ongoing operations, ranging from self-defence towards active and even proactive use of force as indicated not only in mandates as well as actual praxis in the eld (Donald, 2002; Stephens, 2005; Yamashita, 2008), but also in terms of the UNs new capstone doctrine for peace operations (United Nations, 2008). A challenge for a more robust role for UN operations concerns the importance of national legislation of troop contributing countries and how it relates to peacekeeping mandates issued by the UN. Even if UN operations to a much greater extent would be mandated to carry out proactive anti-spoiler operations, national legislation of troop contributing countries will set the bar for troops on the ground (Stephens, 2005). To exemplify, Swedish peacekeepers are not allowed to use lethal force to protect property, whereas other countries national legislation is more permissive. This suggests that to the extent that UN
operations will become more active and robust in the eld, in terms of anti-atrocity operations, it will only involve some of the troop contributing countries forces. This implies in turn that we should expect a continued dominance of non-UN actors within the domain of robust anti-atrocity and antiG/P measures. A nal observation is that from one perspective it appears easier to address G/P than non-genocidal mass atrocities through military operations. Because G/P involves the identication of victims on the basis of some group identity or feature, the potential victims can be identied, located and in theory also protected. In contrast, victims of nongenocidal mass atrocities sometimes have no clear identity or location, and this means that physical protection eorts may have no real focus: simply put, everyone may be at risk. But from another perspective, and since G/P by denition involves a government as perpetrator, we should not expect governments to favour the deployment of PKOs. For that reason, it may overall be easier for the international community to intervene to address atrocities carried out by rebels. As of yet, no statistical studies have a empted entangle this issue of comparative degree of success rate across these two types of human rights emergencies, and in particular what strategy PKOs should apply given the dierent character of the emergencies. For now, all we have are anecdotes and compelling arguments. Hopefully, in the coming years, statistical research will start to make inroads in this area as well as in the area of direct/operational prevention.
References Center on International Cooperation. 2007. Annual Review of Global Peace Operations. Boulder, CO: Lynne Rienner. Center on International Cooperation. 2008. Annual Review of Global Peace Operations. Boulder, CO: Lynne Rienner. Center on International Cooperation. 2009. Annual Review of Global Peace Operations. Boulder, CO: Lynne Rienner. European Union. 2009. Website on the EUs operations at h p://www.consilium.europa.eu/showPage.aspx?id=268&lang=EN Eck, Kristine, and Lisa Hultman. 2007. One-Sided Violence Against Civilians in War: Insights from New Fatality Data, Journal of Peace Research, 44 (2): 233-46. Donald, Dominick. 2002. Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century, International Peacekeeping, 9 (4): 21-38. Findlay, Trevor. 2003. The Use of Force in UN Peace Operations. Oxford: Oxford University Press. Green, Kesten C., and J. Sco Armstrong. 2007. The Ombudsman: Value of Expertise for Forecasting Decisions on Conicts, Interfaces, 37 (3): 287-99. Bar, Barbara. 2003. No Lessons Learned from the Holocaust: Assessing the Risks of Genocide and Political Mass Murders since 1955, American Political Science Review, 97 (1): 57-73. Har, Barbara, 2005. Assessing Risks of Genocide and Politicide, pp. 57-61 in Marshall, Monthy G. and Ted R. Gurr (eds), Peace and Conict 2005. College Park: University of Maryland. Har, Barbara. 2006. Risk Assessments and Early Warning of Genocide: Some Guidelines for the Oce of the Special Adviser to the UN Secretary-General on the Prevention of Genocide. Unpublished manuscript. Available for download at h p://www.unausa.org/atf/cf/%7B49C555AC-20C8-4B43-8483A2D4C1808E4E%7D/Harff%20January%202006. pdf Heldt, Birger, and Peter Wallensteen. 2007. Peacekeeping Operations: Global Pa erns of Intervention and Success. 3rd edition. Stockholm: Folke Bernado e Academy Publications.
Heldt, Birger. 2008. Trends from 1948-2005: How to View the Relation between the United Nations and Non-UN Entities, pp. 9-26 in Don Daniel (ed.), Prospects for Peace Operations: Institutional and National Dimensions. Washington DC.: Georgetown University Press. Herreros, Francisco, and Henar Criado. 2009. Pre-emptive or Arbitrary: Two Forms of Lethal Violence in a Civil War, Journal of Conict Resolution, 53 (3): 419-45. Humphreys, Macartan, and Jeremy M. Weinstein. 2006. Handling and Manhandling Civilians in Civil War, American Political Science Review, 100 (3): 429-47. Kalyvas, Stathis, and Ma hew A. Kocher. 2009. The Dynamics of Violence in Vietnam: An Analysis of the Hamlet Evaluation System (HES), Journal of Conict Resolution, 5 (3): 335-55. Krain, Ma hew. 2005. International Intervention and the Severity of Genocides and Politicides, International Studies Quarterly, 49 (3): 363-87. Roberts, Adam. 2006. The United Nations and Humanitarian Intervention, pp 71-97 in Jennifer Welsh (ed.) Humanitarian Intervention and International Relations. Oxford: Oxford University Press. Schmeidl, Susanne, and J. Craig Jenkins. 1998. The Early Warning of Humanitarian Disasters, International Migration Review, 32 (2): 471-86. Seybolt, Taylor. 2008. Humanitarian Military Intervention: The Conditions for Success and Failure. Oxford: Oxford University Press Stephens, Dale. 2005. The Lawful Use of Force by Peacekeeping Forces, International Peacekeeping, 12 (2): 157-72. Straus, Sco . 2007. Second Generation Comparative Research on Genocide, World Politics, 59 (3): 476-501. Valentino, Benjamin, Paul Huth and Dylan BalchLindsay. 2004. Draining the Sea: Mass Killing and Guerilla Warfare, International Organization, 58 (Spring): 375-407. Welsh, Jennifer. 2006. Humanitarian Intervention and International Relations. Oxford: Oxford University Press.
United Nations. 2004. UN Secretary-General Ko Annan's Action Plan to Prevent Genocide. United Nations Document SG/SM/9197 AFR/893. United Nations. 2008. United Nations Peacekeeping Operations: Principles and Guidelines. New York: United Nations. Available for download at h p:// pbpu.unlb.org/pbps/Library/Capstone_Doctrine_ ENG.pdf United Nations. 2009. Department of Peacekeeping Operations website at h p://www.un.org/en/peacekeeping/ Yamashita, Hikaru. 2008. Impartial Use of Force in United Nations Peacekeeping, International Peacekeeping, 15 (5): 615-30.
71
How to Use Global Risk Assessments to Anticipate and Prevent Genocide

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Notes on the History of Early Warning On 17 June 1992 UN Secretary General Boutros Boutros Ghali called for strengthening early warning systems that incorporate information about natural disasters and political indicators to assess whether a threat to peace exists and to analyse what action might be taken by the United Nations to alleviate it.2 His call was heeded from within the UN system and eorts were underway to develop such as system. Thus, the Humanitarian Early Warning System (HEWS) was developed by the UNs Oce for the Coordination of Humanitarian Aairs. It depended on a database of quantitative and qualitative information used for analysis. Despite the talents of the small sta the eort got li le a ention, partially for lack of funds, but more so because of interference by UN ocials who wanted specic information on selected cases that suited their political interests rather than general assessments. Having worked with some sta members, it was sad to see the eort fold in the late 1990s.3 The European states also supported early warning eorts and the Organisation for Security and Cooperation in Europe (OSCE) has maintained
This article is excerpted from the authors How to Use Risk Assessment and Early Warning in the Prevention and De-Escalation of Genocide and other Mass Atrocities, Global Responsibility to Protect 1 (2009), pp. 506-531. It includes a 2009 risk assessment that is posted, with additional information and previous years assessments, at http://GPANET.org 1 Barbara Harff is Professor of Political Science Emerita at the US Naval Academy in Annapolis, Maryland and has been Distinguished Visiting Professor at the Strassler Center for Holocaust and Genocide Studies at Clark University. She has written some 60 articles, chapters, monographs and books on the international and comparative dimensions of massive human rights violations. 2 Boutros Bourtros-Ghali, An Agenda for Peace: Preventive Diplomacy, Peacemaking, and Peace-keeping. (New York: United Nations, 1992), par. 26 3 Adeel Ahmed and Elizabeth Voulieris Kassinis, The Humanitarian Early Warning System: From Concept to Practice, in John L. Davies and Ted Robert Gurr (eds.), Preventive Measures: Building Risk Assessment and Crisis Early Warning Systems (Lanham, MD: Rowman & Littlefield, 1998), pp. 203-211 *
a research oriented Conict Prevention Center in Vienna, while the OSCEs High Commissioner on National Minorities has responsibility for reporting on and planning diplomatic responses to emerging ethno-political conicts. London-based FEWER (founded in 1994) has been a global information exchange network. The best funded private organisation is the International Crisis Group, working on risk assessment in specic countries and identifying strategies of preventive action.4 However none of these organisations specically focuses on risk assessment and early warning of genocide and mass atrocities. More typically they identify and warn of general conict situations. In addition their eorts are neither systematic and data based, nor do they use explicit theoretical frameworks. The lack of systematic early warning began to change in the mid 1990s when the Clinton Administration, under the leadership of Vice President Al Gore, jumped on the bandwagon of an emerging practice in academiausing scientic analysis to forecast conicts within states. Why? In part because past failures in forecasting the Iranian revolution or the downfall of the Soviet Union discredited area specialists, who although quite capable of recognising internal problems were o en unable to tell us much of what was likely to happen in the region. They did not do any be er in detecting early signs of impending humanitarian disasters in Rwanda or Bosnia. We know that genocide and mass atrocities have been recurring phenomena: in my own research I identied some 46 cases of genocide and political mass murder since 1946.5 Typically they were identied as such a er they were well underway. Thus, once the decision was made that it was in the interest of the United States to respond to Rwanda-like situations then the need for early
4 For more comprehensive reviews see Davies and Gurr, Preventive Measures, and Ted Robert Gurr and Barbara Harff, Early Warning Systems, in Kevin M. Cahill (ed.), Emergency Relief Operations (New York: Fordham University Press for the Center of International Health and Cooperation, 2003), pp. 3-31 First published in Barbara Harff and Ted Robert Gurr, Toward Empirical Theory of Genocides and Politicides: Identification and Measurement of Cases since 1945, International Studies Quarterly 32/3 (1988), pp. 359-371. The most recent list is posted at http://GPANet.org
detection became an issue. It may not have been altruism that prompted the quest for reliable risk assessmentsit may have been for no be er reason than to buy time when dealing with internal conicts that might destabilise whole regions. I have argued (and continue to do so) that early detection would allow for measures that are easy on the budget and just as useful, if applied at the right time. Mediation, diplomatic warnings, sending emissaries, economic aid and a wide range of capacity-building measures may have a chance if initiated before genocidal violence begins. Thus, the call for global analysis, risk assessment, and early warning became the buzz. Building a Systematic Risk Assessment System for Genocides and Politicides The key to systematic social science risk assessment is that it must be based on a careful analysis of the antecedents of particular types of conict. This article is primarily focused on genocide and political mass murder. The 2009 risk assessment that concludes this article is based on quantitative analysis that looks at preconditions of all post 1955 cases of geno/politicide and tests 50 or so plausible causes.6 Additional work has been done by the US Governments Political Instability Task Force (PITF) of which I have been a member. A couple of variables have been added to our explanatory tool kit such as the degree of state sponsored discriminationthat are theoretically relevant and, as results show, signicant. Identifying Cases of Genocide and Politicide Working with the PITF, I used as a base for analysis the set of cases I developed rst during the 1980s and updated as new cases emerged. Although my original dataset included cases that began at the end of the Second World War (46 cases) only 37 cases that began a er 1955 were included in the empirical study, mainly for lack of data on potential causal variables prior to 1955. Collecting data on presumed cases of genocide is relatively easy if there is prior agreement of what constitutes genocide. In the early 1980s that was not the case. Although Israel Charny, Helen Fein, Frank Chalk and Kurt Jonassohn and I all used as a base the Genocide Convention, we disagreed about which types of victimised groups to include, how to deal with intent, whether cultural genocide or the mental harm clause should be a focus of analysis, and whether or not it ma ered how many people
6 The results are published in Barbara Harff, No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955, American Political Science Review, vol. 97, no. 1 (2003), pp. 57-73
were killed.7 By then I had developed my own denition, which added one signicant component. I had coined the term politicide to account for victims of mass slaughters that were bound by common political beliefs. Political groups are not mentioned as potential victims in the Genocide Convention, though this was a ma er of some debate prior to the adoption of the Convention. Reasons abound: the U.S.S.R. and its allies rejected the inclusion and there was no enthusiasm by the Western powers, afraid of Communist encroachment from abroad and from within. Yet I agreed with Helen Fein that mass killings of political groups show similarities in their causes, organisation and motives.8 This denition identies my universe of cases: genocides and politicides are the promotion, execution, and/or implied consent of sustained policies by governing elites or their agentsor in the case of civil war, either of the contending authoritiesthat are intended to destroy, in whole or part, a communal, political, or politicised ethnic group. In genocides the victimised group is dened by their perpetrators primarily in terms of their communal characteristics. In politicides, by contrast, groups are dened primarily in terms of their political opposition to the regime and dominant group. Although I have argued that state elites are the primary perpetrators of genocide and political mass murder, it is quite feasible that opposition groups can commit genocide, especially in failed states. This is true in situations where state elites control only part of their territory see for example in present day Congo-Kinshasa and Somalia. Here is a nal reminder of what we are dealing with in genocidal situations: perpetrators kill men, women and children, the old and the gi ed, the young and the feeble, the politically active and the passive, the religious and secular members of society, all part of some group pre-identied by the perpetrators. Developing a Theoretical Model The research design was simple in conception but very complex in execution. With one exception all genocides and politicides a er 1955 occurred during or in the a ermath of violent political conict
Israel W. Charny, How Can We Commit the Unthinkable: Genocide: The Human Cancer (Boulder, CO: Westview Press, 1982); Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies (New Haven: Yale University Press, 1990); and Helen Fein, Genocide: A Sociological Perspective (London and Newbury Park, CA: Sage, 1993). See especially Feins critical survey of definitions of genocide, pp. 8-31 Fein, Genocide: A Sociological Perspective, p.12
or abrupt regime change.9 The PITF had independently identied 126 instances of internal war and regime collapse during this period, of which 37 led to genocides or politicides. The empirical question was, which variables (measured several years before the onset of mass killings) distinguished between state failures that culminated in genocide or politicide and which did not? A great many potential causal or precedent variables and hypotheses were tested.10 The presence of six risk factors, in various combinations, contributed signicantly to the occurrence of genocides or politicides during or following the internal wars and regime collapses of the last half of the 20th century. The variables are described below. Three-quarters of the cases from 1955 to 2001 were correctly explained or post-dicted, and most of the exceptions were due to limitations of data or research design. These results provide a solid base for structural explanation of why genocides and politicides occurred in the past and where they are likely in future. Subsequent analyses by the PITF highlighted the independent signicance of one other factor, the presence of state-led political or economic discrimination against specic minorities. When this variable was included, one of the original six variables, the magnitude of past conict (upheaval), was no longer signicant. Variables Used in the 2009 Risk Analysis New data for 2007-08 were used to identify all countries that have several of the six risk factors in the revised model. Data from the PITF were updated by Monty G. Marshall of George Mason University for this analysis. The data on risk factors for all countries, along with the above article and risk analyses for 2007 and 2008 are posted at h p://GPANet.org. Based on new analysis by Joseph Hewi we have added a seventh variable, risks of future instability. It is signicant because most historical episodes of genocide and politicide occurred during or shortly a er major instances of regime instability or internal war. 11 For details on the coding of this and other variables, see the notes to the accompanying table.
State-led discrimination: State policies and practices deliberately restrict the economic and/or political rights of one or more specic minority groups. The data are derived from current analyses by the Minorities at Risk project at the University of Maryland, h p://www.cidcm.umd.edu/mar/. Genocides and politicides since 1950: One or more genocides or politicides have been perpetrated in a country. Two cases of mass atrocities are added here to those listed in the dataset used for the Task Force analyses: in Zimbabwe, state-sponsored killings of tens of thousands of Ndbele in the mid-1980s because of their political opposition to the regime; and the systematic killings of Hutus, mostly refugees, in the eastern Congo under the cover of the Kabila-led revolutionary movement in 1996-97. Ethnically polarised elite: The coded data distinguish between countries in which a majority ethnic group dominates the political system, and those in which a minority dominates. This variable ags countries in which minority or majority domination of the elite is intensely contested. Exclusionary ideology: The political elite, or a revolutionary challenger, holds a belief system that identies some overriding purpose or principle that justies eorts to restrict, persecute, or eliminate specic political, class, ethnic, or religious groups. Current regime type: Full autocracies are most likely to have perpetrated genocides and politicides in the past, democracies least likely. We distinguish here among the risks of full and partial autocracies, and full and partial democracies, based on data from the Polity project that ranks countries according to their degrees of democracy and autocracy on an 11-point scale (see h p://globalpolicy.gmu.edu). Trade openness 2006: (dened as imports + exports as % of a countrys GNP, based on latest data available) signies the extent of international engagement in a country. As explained above, this is an indicator of the extent of a countrys interconnectedness with the world system. From Risk Assessment to Early Warning to Political Will O en lack of political will is considered the prime obstacle to acting in a timely fashion to alleviate suering. That is only part of the equation. Researchers also need to consider state capacity when developing response scenarios. Capacity means more than the ability to provide material support
The exception was the Syrian governments 1981-82 campaign to eliminate members of the Muslim Brotherhood. They threatened rebellion but were systematically eliminated before they could act 10 The empirical research design and final results are reported in Harff, No Lessons Learned from the Holocaust? For a more comprehensive list of causal variables tested see Harff, How to Use Risk Assessment and Early Warning (note 1) 11 J. Joseph Hewitt, The Peace and Conflict Instability Ledger: Ranking States on Future Risks, 2008-2010, in J. Joseph Hewitt, Jonathan Wilkenfeld, and Ted Robert Gurr, Peace and Conflict 2010 (Boulder and London: Paradigm Publishers, 2009)
here we need to also focus on legal and cultural restraints (see for example Germanys pacist stance since WW II). And, we need think realistically about what is commonly referred to as national interest. Not even the United States with its global reach can be called upon to insert itself in all emerging conicts. Urgent pleas on the part of analysts and interested parties may gather the a ention necessary to a end to global hotspots. But todays situation is ever more challenging because governments are faced with a multi-faceted global economic crisis, the AIDS crisis, potential environmental disasters, terrorist threats and, despite increased material support, growing third world poverty. New thinking is needed to address emerging global crises. My focus here is on the ability to forecast with a greater reliability geno/politicides because I believe that with the ability to forecast dierent types and potential severity of conicts, policy a ention can be channeled to the most critical areas. This would allow us to focus on long-term planning involving all measures of development aid, support for building civil society institutions, and providing good oces, or any other strong third party commitment that has helped prevent or mitigate past humanitarian disasters. Moreover, we should always use both inducements and sanctions to promote cooperation. In situations where abuses need to be halted, states should support UN missionsnot go it alone. A recent study by Peter Wallensteen and Birger Heldt concludes that more than half the international peace-keeping missions in intrastate conicts since 1948 have been successful.12 The UN has been in the Middle East since 1948, in India and Pakistan since 1949 and Cyprus since 1964 (a potential success?). In conclusion, what is needed to eectively prevent or de-escalate crises that may lead to genocide? First and foremost, more detailed early warning information is needed. We should know how far conicts have escalated and what factors were responsible for escalation. Second, we need a readymade list of responses that are tailored to the level of escalation and that are sensitive to local cultures and regional concerns. Unless we do be er in developing response scenarios by drawing from past failures and successes, decision-makers will continue to muddle through based on incomplete or awed information and old lessons.
12 Peter Wallensteen and Birger Heldt, International Peacekeeping: The UN versus Regional Organizations, in J. Joseph Hewitt, Jonathan Wilkenfeld, and Ted Robert Gurr (eds.), Peace and Conflict 2008 (Boulder, CO: Paradigm, 2009), pp. 93106
Assessing Country Risks of Genocide and Politicide in 2009

B H T R G This updated assessment diers in four signicant ways from previous ones prepared for 2001 through 2008.13 An empirically and theoretically based risk score is derived for each country. Major instances of instability, either internal war or abrupt regime changes, preceded most historical episodes of genocide and politicide. Therefore we have added the likelihood of future instability in a country as an additional risk factor. A new analysis by Joseph Hewi identies ve factors that point to future instability: high infant mortality, high militarisation, armed conict in neighbouring countries, regime inconsistency (mixed democratic and autocratic features), and low economic interdependence.14 The last two are similar to factors in the original genocide risk model, the other three are new. His results are used to rank countries according to instability risks from very high to very low. The risk factors are weighted according to their relative importance. For example in the rst authors analysis of the preconditions of historical cases, past genocide was a more important risk factor than exclusionary ideology by a ratio of 3.5 to 2.5.15 Full autocracy also added a weight of 3.5 and so on. Each countrys risk score in the following table is the sum of the weights for the six risk factors. Some risk scores are negative and thus are used to oset positive risk factors. For example, a partial or fully democratic regime is substantially less likely to carry out genocide even if the country has other, positive risk factors. A high level of economic interdependence and a low risk of future instability have similar inhibiting eects. In addition, if a country has no state-led discrimination or no exclusionary ideology, we subtract those variables weights from the risk score. These factors are within the control of elites and governments and their absence implies positive state action to contain genocide-inducing factors. When we make these adjustments to risk scores, some countries have lower risks than we previously thought. Equatorial Guinea, Nigeria, and Iraq are examples of countries whose positive risk factors are to a signicant degree oset by their high levels of economic connectedness. The highest risk countries are the usual suspects: Sudan and Burma followed by Somalia, where no authority at present has the capacity to carry out mass killings. The future risks are nonetheless high, especially if a militantly Islamist regime establishes control. Risks also remain high in Zimbabwe and Rwanda, and are greater than we previously estimated in Iran, Saudi Arabia, and China. They are lower in Afghanistan, Burundi, Uganda, and Sri Lanka. Some countries have dropped from previous lists because their revised risk scores, like those of Israel (included here as an example) have dropped near or below zero: among them are Bhutan, Bosnia, Cte dIvoire, Lebanon, and Nepal. Note that few of these changes are due to changes in these countries, but rather to the use of a new and more sensitive and we think more accurate procedure for assessing risks.
13 For example Harff, No Lessons Learned from the Holocaust?, p. 71; and Harff, Assessing Risks of Genocide and Politicide, in Marshall and Gurr, Peace and Conflict 2005: A Global Survey of Armed Conflict. Assessments for 2007 and 2008 are posted at http:// GPANet.org. This 2009 assessment also is posted at the GPANet website with a technical appendix that explains more exactly the technical procedures used to rate countries on each risk variable 14 Hewitt, The Peace and Conflict Instability Ledger 15 Harff, No Lessons Learned from the Holocaust?
Country Risks of Genocide and Politicide in 2009
April 2009
Countries and 2009 Risk Index Score
Problems and Conict Issues
Risks of Future Instability weights +3 to -3
Targets of State-led Discrimination
Geno/Politicides since 1955 weights +3.5 to 0 Yes: 1956-72, 1983-2001, 2003-present
Ethnically Polarised Elite weights +2.5 to 0 Yes: Arabs dominate
Exclusiona Ideology
Current Regime Type
2006 Trade Openness
weights +2 to -2 Darfuri
weights +2.5 to -2.5 Yes: Islamist
weights +3.5 to 3.5 Partial autocracy
weights +2.5 to2.5 Very low
Sudan
Ethnic/regional, economic, Religious
Medium
16.5 B Ethnic/regional, Political
+1 Medium Arakenese Chin, Shan Kachin, Karen +2 None (no ef-
+ 3.5 Yes: 1978
+2.5 Yes: Burmans
+2.5 Yes: Burman (junta) Nationalism + 2.5 * Islamists yes
+2.5 Full autocracy
+2.5 Medium low
16 S Separatism; clan rivalries; Islamist/secular
+1 High
+ 3.5 Yes: 1988-91
+ 2.5 No (no governing elite) 0 No
+ 3.5 No eective regime
+ 1.0 Very low
10.5 I Ethnic/regional, Islamist-secular
+2 Low
fective state) Kurds, Bahais, Turkomen +2 Turkomen Tibetans Christians +2 Europeans
+ 3.5 Yes: 1981-92
+ 2.5 Yes: Islamic theocracy
0 Full autocracy
+ 2.5 High
9.5 C Ethnic/regional, Religious
-1 Very low
+ 3.5 Yes: 1950-51, 1959, 1956-75 + 3.5 Yes: 1983-87
0 No
+ 2.5 Yes: Marxist
+ 3.5 Full autocracy
-1 High
8.5 Z Ethnic, political opposition vs. Mugabe regime
-2 Medium
0 Yes: Shona dominate
+ 2.5 No
+ 3.5 Partial autocracy
-1 Very high
8.5 R Ethnic
+1 Medium
+2 None
+3.5 Yes: 1963-65, 1994
+ 2.5 Yes: Tutsis dominate
- 2.5 No
+2 Partial autocracy
- 2.5 Very low
7 S A Wahabism v. Shiism; foreign workers
+1 Very low
-2 Shiis
+ 3.5 None
+ 2.5 Yes: Sudairi clan dominates * + 2.5 No
- 2.5 Yes: Wahabism
+ 2.0 Autocracy
+ 2.5 High
6.5 A Ethnic separatism
-3 Very high
+2 Cabindans
0 Yes: 19752001
+ 2.5 No
+ 3.5 Partial autocracy
-1 Very high
5.5 DR C Autonomist tendencies; warlordism
+3 Very high
+2 Tutsis
+ 3.5 Yes: 1964-65, 1977, 1999
0 No
- 2.5 No
+2 Partial autocracy
- 2.5 Very high
5.5
+3
+2
+ 3.5
- 2.5
+2
- 2.5
April 2009
Geno/Politicides since 1955 weights +3.5 to 0 None
Ethnically Polarised Elite weights +2.5 to 0 No
Exclusiona Ideology
Current Regime Type
2006 Trade Openness
weights +2 to -2 Copts, Islamists
weights +2.5 to -2.5 Yes: Secular nationalism
weights +3.5 to 3.5 Mixed
weights +2.5 to2.5 Medium low
Secular/Islamist/Christian; opposition to Mubarek regime Separatism; ethnic/religious cleavages
Medium
5.5 Ethiopia
+1 Very high
+2 None
0 Yes: 1976-79
0 Yes: Tigreans dominate
+ 2.5 No
0 Mixed regime
0* Medium low
5.5 P Ethnic/regional, tribal, religious
+3 High
-2 Ahmadis, Hindus
+ 3.5 Yes: 1971, 1973-77
+ 2.5 No
- 2.5 No
0 Partial democracy
+1 Very low
5.5 A Secular/Islamist Arabs/Berbers
+2 Low
+2 None
+ 3.5 Yes: 1962
0 Yes: Arabs dominate
0 Yes: Secular nationalism v. Islamist + 2.5 No
- 2.0 Partial autocracy
+ 2.5 Very high
4.5 B 3.5 Ethnic
-1 Very high
-2.5 None
+ 3.5 Yes: 1965-73 1993, 1998
+ 2.5 Yes: Tutsis Dominate
+ 2.0 Partial democracy
- 2.5 Medium low
+3 E G Ethnic autonomy (mainland v. islands) Low
-2 (no current information)
+ 3.5 Yes: 1969-79
+ 2.5 Yes
- 2.5 No
-2 Autocracy
+1 Very high
3.5 S L Ethnic, religious
-1 Low Tamils
+ 3.5 Yes: 1989-90
+ 2.5 Yes: Sinhalese favored + 2.5 No
- 2.5 No
+ 3.5 Partial democracy
- 2.5 Low
3.5 U Ethnic/regional, autonomist
-1 High
+2 None
+ 3.5 Yes: 1980-83, 1985-86
- 2.5 No
-2 Mixed regime
+1 Very low
3.5 A Autonomist tendencies; corruption; sectarian
+2 Very high
-2 None
+ 3.5 Yes: 1978-89
0 No
- 2.5 None
0 Transitional regime
+ 2.5 Medium low
3 N Autonomy; North-South and religious cleavages
+3 Very high
-2 Ogani, Ejaw
+ 3.5 Yes: 1967-69
0 No
- 2.5 No
0 Partial democracy
+1 High
+3
+2
+ 3.5
- 2.5
-2
-1
April 2009
Geno/Politicides since 1955 weights +3.5 to 0 Yes: 1961-75, 1988-91
Ethnically Polarised Elite weights +2.5 to 0 Yes: many bases of contention * + 2.5 Yes: Jews dominate
Exclusiona Ideology
Current Regime Type
2006 Trade Openness
weights +2 to -2 None
weights +2.5 to -2.5 No
weights +3.5 to 3.5 Partial democracy
weights +2.5 to2.5 Very high
Iraq
Separatism; clan and tribal rivalries; Islamist/secular Palestinian nationalism; religious/secular
Very high
0 Israel, West Bank and Gaza -1
+3 Low
-2 Arab Israelis
+ 3.5 None
- 2.5 Yes: Zionist nationalism
-2 Full democracy
- 2.5 High
-2
+2
+ 2.5
+ 2.5
- 3.5
-1
79
Prevention of Genocide: De-mystifying an Awesome Mandate
M. D
I: Normative Foundations of Genocide Prevention On December 9, 2009, the world commemorated the sixtieth anniversary of the adoption of the Convention for the Prevention and Punishment of the Crime of Genocide. The Genocide Convention, as it is more commonly known, was the outcome of the vision and the life-long work of Rafael Lemkin. Lemkin wanted to capture in one word the act of killing with the purpose of exterminating an ethnic or religious group. He coined the word genocide, from the Greek word genos and the Latin sux cide, which literally means killing (hacking, cu ing down) a species, or, metaphorically, an ancestry or an extended family. He then went on to convince the international community to recognize this as an international crime and have the newly created United Nations adopt a Convention for its punishment and prevention. The enormity of this achievement becomes obvious if we take into account that, in Lemkins days, massacres and other atrocities were considered as internal aairs of a country, not to be interfered with by international law or third countries. We have denitely come a long way since 1948, and things have changed for the be er. While the world is not genocide-risk free, it is be er equipped to deal with this heinous crime and related atrocities. Today, it is undisputed that genocide is an international crime. The Genocide Convention itself entails prevention elements when it calls also for punishment of incitement to genocide and conspiracy to commit genocide. It also provides a normative basis for the competent UN bodies, including the Security Council, to act in order to prevent and suppress genocide. Today, we have additional mechanisms at our disposal: The International Criminal Court (ICC), for instance, has universal jurisdiction for bringing to justice
1 Francis M. Deng is the Special Adviser of the SecretaryGeneral of the United Nations on the Prevention of Genocide. From 1992 to 2004 he served as the Secretary-Generals Representative on internally displaced persons. Prior to that Mr. Deng served in the Ministry of Foreign Aairs of his country, Sudan. He has also held various academic positions and is the author of several books on internally displaced persons, conict resolution and his country
perpetrators of genocide. It should be noted that the threat of accountability and punishment are preventive in themselves. Prevention means that genocide does not have to be legally proven for preventive measures to be invoked. But it also implies that genocide is credibly predictable. Some scholars argue that it is possible to predict genocide. For instance, the exodus of refugees from the Nazi occupied areas was a clear warning of the terrible things that happened a erwards, epitomized by the Holocaust. Others caution, however, that reliance on early warning systems, no ma er how perfectly cra ed they are, does not mean that genocide can be credibly predicted and prevented. The international community can sometimes be reluctant to recognize an impending catastrophe for fear that diplomatic and other ties will suer, or because expectations are raised that something forceful needs to be done to prevent it. And while anticipating genocide early in order to prevent it must be our aim, we must always make sure that this aim is not abused for political or other objectives. II. Parameters of Genocide Prevention Genocide is one of the most heinous crimes on which humanity should be assumed to unite in preventing and punishing. However, for the same reason, it is a highly emotive issue which evokes denial from both the perpetrators and those who would be called upon to stop it. As a result, genocide is nearly always recognized a er it has already occurred and the perpetrators are out of power, making it a judgment of the victor over the vanquished. For this reason, the strategy of the genocide prevention mandate is to de-mystify genocide from being perceived as too sensitive an issue for meaningful discussion or a complicating factor in diplomatic, political, and development engagement with Governments, that should therefore be avoided, to one which can best be prevented or stopped by being be er understood and openly discussed. To prevent genocidal conicts, it is critically important to understand their root causes. While there are many causes of conict, to the extent
that genocide aims at the destruction of groups identied by nationality, race, ethnicity, or religion, as specied in the Genocide Convention, identityrelated conicts constitute a cross-cu ing theme of genocide. It must, however, be emphasized that it is not the mere dierences, real or perceived, that generate conict, but the implications of those dierences in terms of access to power, wealth, services, employment, development opportunities and the enjoyment of citizenship rights. While some groups are privileged as members of an in-group that enjoys all the rights of citizenship, others are stigmatized, discriminated, marginalized, excluded and denied the dignity of citizenship and the rights accruing from it. In the past, when these disadvantaged groups were isolated and lacking the condence and the capacity to resist, they silently succumbed to their plight and silently endured the indignity dictated on them by the dominant powers. Today, with the global consciousness of universal human rights, including the rights of minorities and indigenous peoples, such a demeaning status cannot be imposed without resistance, sooner or later. However, when the aggrieved resist, sometimes using violent means as a last resort, they provoke the more powerful forces of the status quo to respond with devastating consequences that can escalate to genocidal levels. This assessment can become a constructive basis for prescribing remedies and curing chronic societal ills that threaten to generate genocidal crises. The critical step then becomes one of identifying the factors in a given situation that account for acute cleavages and disparities in the management of diversity and to seek ways of reducing and eventually eliminating the gross inequities that can generate resistance, insurgency, and genocidal counter insurgency. III. UN Action on Genocide Prevention On the tenth anniversary of the genocide in Rwanda, former Secretary-General Ko Annan, established the post of Special Adviser on the Prevention of Genocide. The rst Special Adviser to be appointed was Juan Mndez, whose work laid the foundation for the mandate. Secretary-General Ban Ki-moon, also with a very strong commitment to an agenda of prevention, decided to make the post of the Special Adviser full-time at the level of UnderSecretary-General. He appointed me to the post in May, 2007. The Oce of the Special Adviser works very closely with UN partners, academic institutions and NGOs. I also a ach particular importance to working with regional organizations. Discussing
genocide prevention at a regional level encourages Governments to talk more openly about the risks of identity-related genocidal conicts that face pluralistic societies, and in doing so, raise awareness without appearing to target individual countries and creating unnecessary defensiveness. It is also noteworthy that at the regional level, states have common concerns, and can learn from each other what solutions and best practices work for them. One of the main strengths of the genocide prevention mandate is that it can draw on the extraordinary work of the UN around the world. We tend to focus on failures and weaknesses of the organization; and this is in order, since we need to perform be er. But we should also celebrate UNs successes, especially in the areas of preventive diplomacy, humanitarian assistance and human rights protection. So, my oce draws heavily on information and insights gained from the presence and the work of the UN in most countries around the world. I strongly believe that, in our work towards prevention, it is pivotal to engage governments constructively and make them aware of the responsibilities associated with sovereignty. The world today is no longer what it was in Lemkins time when sovereignty reigned supreme. Sovereignty is no longer seen solely as a barricade against outside involvement, but as a charge of responsibility and accountability for the safety and welfare of the citizens, if necessary with the support of the international community. The concept of Sovereignty as Responsibility has now been reconrmed by the Responsibility to Protect, adopted by the 2005 World Summit Outcome Document. IV. The Mandate of the Special Adviser The mandate of the Special Adviser on the Prevention of Genocide is to help strengthen the role of the United Nations in preventing genocide by: collecting existing information, in particular from within the United Nations system, on massive and serious violations of human rights and humanitarian law of ethnic and racial origin that, if not prevented or halted, might lead to genocide; liaising with the United Nations system on activities for the prevention of genocide and working to enhance the United Nations capacity to analyze and manage information regarding genocide or related crimes and mobilize departments and agencies to watch for early signals of emerging violence and take steps toward peaceful resolution of potentially genocidal conicts;
acting as a mechanism of early warning to the Secretary-General, and, through him, to the Security Council by bringing to their a ention situations that could potentially result in genocide; and making clear and eective recommendations to the Secretary-General and through him to the Security Council, on actions to prevent or halt genocide. Prevention also requires apportioning responsibilities for collaborative arrangements between the States concerned and the international community through the principles of Sovereignty as Responsibility, and The Responsibility to Protect, which apportion responsibilities at three levels: the responsibility of a State to protect its own populations and all those under its jurisdiction; the responsibility of the international community to support the State to enhance its capacity to meet its national responsibility; and the responsibility of the international community to take collective action when a State is unwilling or unable to protect its own populations. Within this diagnostic, prescriptive and curative framework, the Oce of the Special Adviser acts as a catalyst in the UN system and more broadly with the international community, in order to alert to the potential of genocide in a particular country or region, to make recommendations towards preventing or halting it, and advocate to mobilize among pertinent partners to undertake preventive action in accordance with their mandates and responsibilities. V. Framework of Analysis for Risk Assessment The Oce of the Special Adviser has developed a Framework of Analysis comprising eight categories of factors that it uses to determine whether there may be a risk of genocide in a given situation. The eight categories of factors are not ranked, and the absence of information relating to one or more categories does not necessarily indicate the absence of a risk of genocide. What is signicant is the cumulative eect of the factors. Where these factors are eectively addressed, no longer exist, or are no longer relevant, the risk of genocide is assumed to decrease.
A. Inter-group relations, including record of discrimination and/or other human rights violations commi ed against a group Relations between and among groups in terms of tensions, power and economic relations, including derogatory perceptions about the targeted group; Existing and past conicts over land, power, security and expressions of group identity, such as language, religion and culture; Past and present pa erns of discrimination against members of any group which could include: o Serious discriminatory practices, for instance, the compulsory identication of members of a particular group, imposition of taxes/nes, permission required for social activities such as marriage, compulsory birth-control, the systematic exclusion of groups from positions of power, employment in State institutions and/ or key professions;2 o Signicant disparities in socio-economic indicators showing a pa ern of deliberate exclusion from economic resources and social and political life. Overt justication for such discriminatory practices; History of genocide or related serious and massive human rights violations against a particular group; denial by the perpetrators; References to past human rights violations commi ed against a possible perpetrator group as a justication for genocidal acts against the targeted group in the future. B. Circumstances that aect the capacity to prevent genocide Structures that exist to protect the population and deter genocide include eective legislative protection; independent judiciary and eective national human rights institutions, presence of international actors such as UN operations capable of protecting vulnerable groups, neutral security forces and independent media. Existing structures; The eectiveness of those structures; Whether vulnerable groups have genuine access to the protection aorded by the structures; Pa erns of impunity and lack of accountability for past crimes commi ed against the targeted groups; Other options for obtaining protection against genocide, e.g. presence of peacekeepers in a
2 This could include security, law enforcement or oversight apparatus, such as police, army and judiciary.
position to defend the group, or seeking asylum in other countries. C. Presence of illegal arms and armed elements Whether there exists a capacity to perpetrate genocide - especially, but not exclusively, by killing; How armed groups are formed, who arms them and what links they have to state authorities, if any; In cases of armed rebellions or uprising, whether a state has justied targeting groups from which armed actors have drawn their membership. D. Motivation of leading actors in the State/region; acts which serve to encourage divisions between national, racial, ethnic, and religious groups Underlying political, economic, military or other motivation to target a group and to separate it from the rest of the population; The use of exclusionary ideology and the construction of identities in terms of us and them to accentuate dierences; Depiction of a targeted group as dangerous, disloyal, a security or economic threat or as unworthy or inferior so as to justify action against the group; Propaganda campaigns and fabrications about the targeted group used to justify acts against a targeted group by use of dominant, controlled media or mirror politics;3 Any relevant role, whether active or passive, of actors outside the country (e.g., other Governments, armed groups based in neighboring countries, refugee groups or diasporas) and respective political or economic motivations. E. Circumstances that facilitate perpetration of genocide (dynamic factors) Any development of events, whether gradual or sudden, that suggest a trajectory towards the perpetration of genocidal violence, or the existence of a longer term plan or policy to commit genocide: Sudden or gradual strengthening of the military or security apparatus; creation of or increased support to militia groups (e.g., sudden increases in arms ow) in the absence of discernible legitimate threats; A empts to reduce or eradicate diversity within the security apparatus;
Preparation of local population to use them to perpetrate acts; Introduction of legislation derogating the rights of a targeted group; Imposition of emergency or extraordinary security laws and facilities that erode civil rights and liberties; Sudden increase in inammatory rhetoric or hate propaganda, especially by leaders, that sets a tone of impunity, even if it does not amount to incitement to genocidal violence in itself; Permissive environment created by ongoing armed conict that could facilitate access to weapons and commission of genocide. F. Genocidal acts Acts that could be obvious elements of the crime of genocide as dened in Article 6 of the Rome Statute,4 such as killings, abduction and disappearances, torture, rape and sexual violence; ethnic cleansing or pogroms;5 Less obvious methods of destruction, such as the deliberate deprivation of resources needed for the groups physical survival and which are available to the rest of the population, such as clean water, food and medical services;6 Creation of circumstances that could lead to a slow death, such as lack of proper housing, clothing and hygiene or excessive work or physical exertion; Programs intended to prevent procreation, including involuntary sterilization, forced abortion, prohibition of marriage and long-term separation of men and women; Forcible transfer of children, imposed by direct force or through fear of violence, duress, detention, psychological oppression or other methods of coercion; Death threats or ill treatment that causes disgurement or injury; forced or coerced use of drugs or other treatment that damages health.
4 5
Mirror politics is a common strategy to create divisions by fabricating events whereby a person accuses others of what he or she does or wants to do.
Rome Statute of the International Criminal Court Efforts should be made to gather information on a sufficient number of incidents to determine whether the abuses were substantial, systematic and widespread over a period of time. Deprivation of the means to sustain life can be imposed through confiscation of harvests, blockade of foodstuffs, detention in camps, forcible relocation or expulsion to inhospitable environments.
G. Evidence of intent to destroy in whole or in part 7 Statements amounting to hate speech8 by those involved in a genocidal campaign; In a large-scale armed conict, widespread and systematic nature of acts; intensity and scale of acts and invariability of killing methods used against the same protected group; types of weapons employed (in particular weapons prohibited under international law) and the extent of bodily injury caused; In a non-conict situation, widespread and/or systematic discriminatory and targeted practices culminating in gross violations of human rights of protected groups, such as extrajudicial killings, torture and displacement; The specic means used to achieve ethnic cleansing which may underscore that the perpetration of the acts is designed to reach the foundations of the group or what is considered as such by the perpetrator group; The nature of the atrocities, e.g., dismemberment of those already killed that reveal a level of dehumanization of the group or euphoria at having total control over another human being, or the systematic rape of women which may be intended to transmit a new ethnic identity to the child or to cause humiliation and terror in order to fragment the group; The destruction of or a acks on cultural and religious property and symbols of the targeted group that may be designed to annihilate the historic presence of the group or groups; Targeted elimination of community leaders and/or men and/or women of a particular age group (the future generation or a military-age group); Other practices designed to complete the exclusion of targeted group from social/political life. H. Triggering factors Future events or circumstances seemingly unrelated to genocide that might aggravate conditions or spark deterioration in the situation, pointing to the likely
7 Genocidal intent can develop gradually, e.g., in the course of conflict and not necessarily before, and genocide may be used as a tool or strategy to achieve military goals in an operation whose primary objective may be unrelated to the targeted group. Evidence of intent to destroy can be inferred from a set of existing facts which would suggest that what is unfolding or ongoing may be genocide. From a preventive perspective, there could be other indications of a plan or policy or an attempt to destroy a protected group before the occurrence of full-blown genocide. The hate speech has to denigrate characteristics of a specific ethnic/racial/religious/national group
onset of a genocidal episode. These triggers might include: Upcoming elections (and associated activities such as voter registration or campaigning; revision of delimitation of electoral boundaries; a call for early elections or the postponement or cancellation of elections; disbanding of election commissions; imposition of new quotas/standards for political party or candidate eligibility); Change of Government outside of an electoral or constitutionally sanctioned process; Instances where the military is deployed internally to act against civilians; Commencement of armed hostilities; Natural disasters that may stress state capacity and strengthen active opposition groups; Increases in opposition capacity, which may be perceived as a threat and prompt preemptive action, or rapidly declining opposition capacity which may invite rapid action to eliminate problem groups.9 Although The Framework of Analysis is a work in progress and is by no means a denitive scientic standard, it provides the OSAPG with a tool for assessing the risk of genocide with a degree of objectivity, consistency and predictability. It can be used as a source of gathering relevant information from within the United Nations system and from other sources external to the U.N. When suciently understood and accepted, it would not only be a framework for states to provide information on the situation in their respective countries, but also a means of looking at themselves in the mirror, assessing their record of performance, and take necessary actions to remedy any shortcomings that could be precursors to genocidal conicts. In that sense, The Framework of Analysis could be an eective tool for self-generated preventive measures by the states. VI. Conclusion The international community has undoubtedly come a long way in developing normative and institutional arrangements for genocide prevention. But, of course, much work lies ahead. It is my hope that the Oce of the Special Adviser on Genocide Prevention can make a catalytic contribution towards creating the political will that is necessary for an early engagement with Governments and the international community in preventing genocide.
9 Critical moments can also represent moments of opportunity to improve a situation and to lessen the risk of genocide
As I have o en said, this is an impossible mandate that must be made possible through collective collaborative action.
85
Prevention of Genocide: The role of the International Criminal Court

Cour Pnale Internationle International Criminal Court
I. Introduction The 60th anniversary of the adoption by the United Nations General Assembly of the Convention on the Prevention and Punishment of the Crime of Genocide is an appropriate occasion on which to recall the words of Secretary General Ban Ki-Moon about the Rwanda genocide in April 2007. A er paying tribute to the memory of the hundreds of thousands of persons who died, and emphasising the suerings of the survivors, the Secretary General stressed that we must never forget the atrocities that took place. Secondly, Secretary General Ban KiMoon insisted that we must never stop working to prevent genocide. It is crucial to point out that the prevention of what has been called the "crime of crimes" requires a collective, shared commitment and eort. I will come back later to the work that can be done in this area by the International Criminal Court in its capacity as the rst permanent international tribunal established in order to bring to justice the perpetrators of large-scale atrocities, including genocide. II. The role of the ICC in the prevention of genocide Why was the ICC established? The establishment of the ICC was a direct response to the experience of the last century, which witnessed crimes of the utmost seriousness which resulted in agrant violations of human rights. The Preamble to the ICC Statute states that these crimes "threaten the peace, security and well-being of the world". Confronted with the gravest international crimes, national tribunals in many cases were unable or unwilling to proceed with their investigations or
1 Ren Blattmann, a human rights lawyer from Bolivia, is a judge in the trial division of the International Criminal Court, having served as the second vice-president from 2006-2009. Judge Blattmann works on the trial of Congolese militia leader Thomas Lubanga.
indictments. These atrocities were o en covered up by a culture of impunity which protected perpetrators. The fact that these massive atrocities have remained unpunished has had a number of traumatic consequences: (I) justice has been denied to the victims; (II) the lack of eective means of punishing perpetrators has undermined the dissuasive effect of justice and has failed to deter future crimes; (III) countries and entire regions have been destabilised, as generalised and systematic crimes have triggered or have exacerbated large-scale conicts. Given the fact of widespread impunity, there was clearly an urgent need to combat this with a permanent international institution to bring to trial the most serious crimes. The establishment of an international criminal court to try persons accused of genocide was already envisaged in article VI of the Convention against Genocide of 1948. However, the conditions for this plan to become a reality did not emerge until half a century later. The ad hoc tribunals I am referring to the Nuremberg and Tokyo tribunals and to the more recent examples of former Yugoslavia, Rwanda and Sierra Leone produced temporary solutions for specic situations. However, their deterrent eect was limited because they dealt only with specic situations and they were backwardlooking, focusing on the past. Although these tribunals represented major steps forward in terms of bringing the perpetrators of these crimes to justice, the international community ultimately did not derive from these events a sufciently strong impetus to acknowledge the need for an international tribunal that was: (I) permanent and easily accessible; (II) independent vis-vis politics and political bodies; (III) endowed with a potentially wide-ranging competence and itself subject to strict limitations with regard to the exercise of this competence.
Ten years ago in Rome, following intensive legislative work, the Statute that established the International Criminal Court was adopted. For the rst time an international tribunal was endowed with the permanent competence to indict "persons" (rather than States) for serious international crimes, i.e. genocide, crimes against humanity and war crimes. Genocide occupies a prominent place within the system of the ICC Statute. The "crime of crimes" is the rst to be dened in the Rome Statute. It was envisaged in article 6, which is analogous to article II of the Convention against Genocide, and it reects the fact that genocide is an international crime. The following paragraphs explain how the Court works in practice, the purpose being to outline the means by which the Court can operate as a set of preventive instruments. The role of the ICC is not to exercise its responsibility by replacing national legal systems. Rather it functions as a tribunal of "last resort". Hence, in accordance with the basic principle of complementarity established by the Rome Statute, national tribunals retain the primary competence for judging cases of genocide and international crimes. In other words, the ICC is not the rst mechanism but is merely complementary to the national tribunals in the ma er of trying these crimes. It should be noted that even in the context of the general situations in which the Court exercises its competence, its capacity to judge specic crimes is limited. Consequently its preventive eectiveness depends on the States immediately concerned and the international community making joint eorts. The Court can exercise its competence in one of the following hypothetical situations: o A State Party may submit a situation in which it seems that crimes have been commi ed by a national of a State Party or on the territory of a State Party. o The United Nations Security Council may submit a situation, regardless of the nationality of the perpetrator of the crimes or of the place in which they have been commi ed. o The state prosecutor may initiate on his or her behalf or ex ocio an investigation concerning crimes commi ed on the territory of a State Party or by a national of a State Party. He or she can start such an investigation on the basis of information received from a reliable source.
The Statute excludes any kind of impunity whatsoever for heads of state and government and establishes the responsibility of military commanders and other superiors. To sum up, anyone may be indicted for crimes before the ICC, regardless of their status. Moreover, the rights of the accused are guaranteed. Special importance is a ached to the rights of the victims, who have the right provided that certain conditions are fullled to take part in proceedings and to obtain reparations. The reparations that can be granted to the victims of the most heinous crimes represent an important step forward in international criminal law as they have up to now been excluded from the international judicial process. III. Present situation of the Court In the period that elapsed between the adoption of the Rome Statute in 1998 and its entry into force on 1 July 2002, the Court developed rapidly and today in its own right it has become an independent judicial institution which 110 States Parties have joined. Various other states are now going through the process of ratication. This accelerated tempo of ratication has been noteworthy compared with all other international conventions, even more so bearing in mind that it is a convention by which a judicial institution is established. In my opinion, this rapid tempo of ratication reects both a universal feeling that the Court should exist and the condence on the part of the states that it is a purely judicial institution. As the ICC has demonstrated its strict adherence to its judicial mandate, support for it has increased. In a number of cases, the judges have recently demonstrated the Court's total independence and its zealous concern for protecting the rights of the accused. The Court is gaining ever greater recognition as an important actor on the international scene and as a key player in eorts to a ain the general goals of peace and stability in regions aected by conicts and in societies trying to rebuild a er atrocities have been commi ed. The ICC started its activities in 2003, when the rst judges and the prosecutor were elected. Clearly, we are still at a very early stage of the Court's existence. Nevertheless, ve situations have been submi ed to the Court. Three of these were submi ed by States Parties to the Rome Statute and refer to situations on the territories of those States. I am referring to the Democratic Republic of Congo, Uganda and the Central African Republic. The fourth case, concerning the situation in Darfur (Sudan), was submi ed
to the Court by the Security Council in accordance with Chapter VII of the United Nations Charter. In the last case, on 26 November 2009, the prosecutor of the International Criminal Court requested permission to open an investigation of the crimes allegedly commi ed in Kenya in connection with the post-electoral violence of 2007-2008. The judges will have to consider whether there is sucient evidence to start an investigation and whether the situation falls within the Court's jurisdiction. In addition to the above-mentioned cases, the Court is carrying out preliminary analyses in various other parts of the world, including Chad, Afganistan, Georgia, Colombia and Palestine. As of today, the Court has issued a total of 12 arrest warrants and one summons to appear before the judge. Four of the twelve suspects have been arrested and handed over to the authorities. The cases in which the arrests and the handover have taken place are at dierent stages of pre-trial proceedings. In the other cases, the proceedings were impeded because the suspects were not arrested. Abu Garda, the person for whom a summons to appear before the judge was issued, complied with the Court's resolution. He was present during the initial hearings before Pre-Trial Chamber II and during the Conrmation of Charges hearing. This is an example of the fact that even when allegations relate to the gravest crimes, the freedom of the suspect during the preliminary investigation may be not only a theoretical option but a practical possibility. Like all judicial systems, the ICC is built on two pillars. The Court itself is the judicial pillar, with the capacity to issue decisions and rulings. The executive pillar, with police powers, is the prerogative of the states, which are responsible in particular for the capacity to execute arrest warrants. When the ICC was founded, the states agreed to cooperate in this respect. Now that the Court has become operative, it is their duty to provide this cooperation. It is noteworthy in this context that on 14 July 2008 the ICC prosecutor issued a warrant for the arrest of Mr Omar Al Bashir, President of Sudan. The prosecutor charged Mr Al Bashir on ten counts of genocide, war crimes and crimes against humanity. This request is unique in its kind in the proceedings before the ICC in that it is the rst to allege that the crime of genocide has been commi ed. In March 2009 Pre-Trial Chamber I, on a split vote, approved the arrest for crimes against humanity and for war crimes, but not for genocide.
Of course the arrest warrant discusses the most salient contextual and specic requirements for the crime of genocide.2 It is agreed that the crime of genocide is characterised by certain acts that are directed against a national, ethnic, racial or religious group rather than against the individuals who make up this group. The crime of genocide, as set out in article II of the Convention on the Prevention and Punishment of the Crime of Genocide, does not require any contextual element. Nor was a contextual element envisaged, or developed in jurisprudential terms, in the ad hoc tribunals: the ICTY and the ICTR. Nevertheless, as stated in the arrest warrant, the elements of the crimes require that "the conduct took place in the context of a manifest pa ern of similar conduct directed against that group or was conduct that could itself eect that destruction". This requirement has been interpreted as a contextual element with regard to the competence of the ICC. With regard to the specic elements, it has been argued (I) that the victims have to belong to some national, ethnic, racial or religious group, (II) and that the perpetrator has to act with the specic intention that characterises this crime. As for the rst element, it has been established that a negative denition of such groups (for example acts directed against persons who are not members of the Buddhist religion or do not belong to the Tutsi ethnic group) would not be sucient to justify an indictment for the crime of genocide. As for the denition of the second element, which is considered as the most expressive of the reprehensibility of this crime,3 Pre-Trial Chamber I defended its interpretation in a precedent of the International Court of Justice.4 It was argued that in order to satisfy the subjective criterion, it was not sucient that the perpetrator should a ack individuals on the grounds that
2 For the purpose of this Statute, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Satzger, Internationales und Europisches Strafrecht, Nomos, 3rd edition, 15/15 This is the well-known "Judgment on Genocide", paragraph 187
3 4
they belonged to a group, i.e. with discriminatory intent. To qualify as a crime of genocide it is additionally necessary that the perpetrator should wish to destroy the group as such, either in whole or in part. On the basis of this interpretation, the arrest warrant distinguished the criteria necessary for the crime of genocide from that of the crime against humanity of forcibly removing populations. As stated above, the arrest warrant was not issued for the crime of genocide. However, the minority opinion considered that the factual and legal requirements constituting the crime of genocide were present. The disagreement between the judges concerned in particular evidentiary issues, i.e. the question of the existence of sucient proof to believe that the crime was commi ed (according to article 58 of the RS, the Chamber must be convinced that there are reasonable grounds for believing that a crime has been commi ed). This question is now the subject of recourse to the Appeals Chamber. The arrest warrant, even though it was not issued for the crime of genocide, highlights the fact for the benet of possible perpetrators that there can be no impunity for the most heinous crimes of international importance, regardless of the status or the position of the perpetrators of such crimes. This is an expression of the preventive intent as set out in the Preamble to the Statute and this owed into the creation and the operation of the ICC. The preventive eect of international criminal law therefore has a number of points in common with the eects of criminal punishment in general. There has been considerable discussion in the legal literature about the justication of punishment as the imposition of an "evil" on whoever violates a norm. The Rome Statute expressly highlights this preventive aspect when it states: "Arming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their eective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,... ." The ICC, as the Preamble points out, is the result of the profound shock to the conscience of humankind caused by the fact that millions of men, women and children were the victims of unimaginable atroci-
ties and of serious human rights violations in the last century. Ideally, all crimes should be judged by national tribunals, as is usually the case. However, as already stated, it is precisely when confronted with the most serious crimes and atrocities that national systems have shown a lack of the will or the capacity to activate their national judicial systems to prosecute these crimes. The failure of national jurisdictions to react to this category of crimes may encourage potential perpetrators to commit one of these crimes. The International Criminal Court, which was established as a mechanism to eectively bring such individuals to trial, would then have to full a preventive role precisely in those cases which present the greatest diculties for national jurisdictions. The Court's potential for immediate dissuasion derives from the fact that the ICC, unlike previous international tribunals, generally operates in situations of ongoing conicts. Inevitably, this poses major challenges with regard to: o obtaining and safeguarding evidence; o ensuring the arrest of suspects; o protecting witnesses. The realisation that the ICC has a dissuasive eect happened much earlier than expected and it will be necessary to monitor these initial eects. In order for this dissuasive eect to continue, it is important that states should comply with the arrest warrants issued by the Court. The second aspect of dissuasion is achieved thanks to the contribution of the Court to a culture of accountability. In order to evaluate the success of this culture, a long-term perspective has to be adopted. It needs to be remembered that the preventive effects include the promotion of respect for human rights and the consolidation of judicial norms. These are both areas in which the Court is actively involved, and both also serve as bulwarks against the collapse of the social fabric, which creates an atmosphere that is favourable to the commi ing of acts of genocide and of other crimes. IV. The road ahead: towards a culture of accountability Through its promotion of international justice and the rule of law, the ICC will play an important but by no means exclusive part in responding to threats of destructive violence and genocide. Ten years a er the adoption of the Rome Statute, the ICC is now fully operational. Of course in many
respects we are still in the early stages. It is only recently that we have started to grasp the potential of the ICC. Certain values must however continue to be maintained. I am thinking of the Court's permanent role, its tendency to universality and its mandate to conduct just, independent and impartial investigations and proceedings in strict conformity with the Rome Statute. Over the years, a body of jurisprudence will be formed which will resolve pending questions of denition in the Rome Statute and will increase the eciency of the proceedings. The success of the Court depends rst of all on the focusing of eorts to achieve the universal ratication of the Rome Statute to ensure that it a ains the truly global application that was envisaged by its founders. This is crucial for dissuasion, creating a real expectation that genocide and other serious international crimes, whenever and wherever they are commi ed, will not go unpunished. Secondly, as the Court is becoming more operational, it is increasingly clear that the cooperation of states and of international organisations is supremely important, especially with regard to the detention of suspects, the protection of witnesses, and the execution of sentences. Although the states parties will be mainly required to full the Court's requests, all states and organisations can help it in its work. Thirdly, diplomatic and public support will remain indispensable. All the statements of support for the Court from states, from non-governmental organisations, from academia and from international and regional organisations help promote cooperation with the Court and compliance with its judicial rulings. The more dicult the circumstances, the more decisive this support will be. Fourthly and crucially, states, international organisations, and civil society must continue to respect, support and defend the independent and judicial mandate of the Court. The eectiveness of the ICC depends on its credibility as a non-political institution. It is necessary to resist any kind of temptation to subject the application of the Rome Statute to non-legal considerations. Undermining the credibility of the Court for reasons of political convenience could create excessively high costs. The Rome Statute is not merely an international convention. It is an expression of the fundamental idea that serious crimes must not go unpunished, that the victims deserve to be able to rely on legal
recourse, and that peace and security presuppose justice. These ideas are not new. They can all be found in the goals, proposals and principles of the United Nations. What is new is the existence of a permanent international institution dedicated to the achievement of these goals, an institution which is just, impartial and independent. In the years leading up to 1998, it was not at all certain that it would be possible to establish the ICC. The dedication and the indefatigable eorts of thousands of persons were necessary to make the adoption of the Rome Statute a reality. This impetus must now be maintained. This is our duty to realise the hopes of those persons whose expectations of justice were reborn when the Statute was adopted. And it is our duty towards the present and future generations for whose benet the Court was created. The mere existence of the International Criminal Court, with its mandate to responsibilise present and future perpetrators of genocide, has already made a dierence. Our task will be to ensure that the practical impact of the Court will be equally impressive and will have an equally wide range. It is to be hoped that in a short period of time all states will understand and appreciate the positive role that the ICC can play and that they will be able to continue to provide their support and assistance. In the nal analysis, as I stated at the beginning, achieving the goals of international justice depends not only on the Court but also on the determination of states and of other international actors. For the sake of the prevention of genocide and of so many other extremely serious crimes, I hope that this determination will remain strong.
91
Transitional Justice and Prevention
E. M
I would most sincerely like to thank the organizers of this conference, and especially the governments of Argentina and Switzerland, for inviting me to share a few ideas with this distinguished company. I. In almost three years experience as Special Adviser to the Secretary-General on the Prevention of Genocide (2004-2007), I have become convinced of the need to confront the crimes of the recent past by investigating, prosecuting and punishing those responsible as an eective way of preventing such crimes from being repeated or escalating to the point where even more serious mass atrocities are commi ed. Of course, I realize that it is impossible to provide empirical evidence of a causal link between punishment and prevention. In this regard, international crimes are no dierent from everyday crimes and indeed, in the case of the former, there have been few scientic studies to demonstrate the preventive eect of punishment. For this reason, my talk should be regarded as a reection of personal experience and as a contribution to a more extensive study. On my two visits to Darfur, I witnessed the state of mind of the thousands of internally displaced persons produced by the conict, especially seeing their persecutors every day at liberty, aunting their impunity and ready to commit their crimes all over again. I also investigated the progress of the investigations or trials relating to the hundreds of a acks in 2003 and 2004 which resulted in at least 200,000 deaths, and it was not hard to understand the causal link between impunity for the atrocities already committed and the diculty in establishing the situation and preventing future violations likely to constitute
genocide.2 Impunity is an incentive for elements of the security forces who feel that they can exert the authority vested in them, without limits or constraints, in order to commit new crimes. This is also true of the members of paramilitary or irregular groups such as the janjaweed in Darfur. Impunity forces the surviving victims into a situation of helplessness which prevents them from deciding for themselves whether to return to their place of origin or how to feed their families which can drive them to acts of self-defence or revenge. Impunity makes it dicult to provide humanitarian aid as it puts at risk the very organizations that dispense the aid. In conditions of impunity, it is pointless and ineective for neutral forces to provide armed protection for the civil population because an essential element is missing: the condence of the populations being protected. The international community is coming to recognize this link between justice and lasting peace, although in each case a debate has to be started on how peace and justice can be mutually supportive and reinforcing. This link is particularly noticeable in post-conict resolution situations as people understand the need to contribute to the establishment of credible and trustworthy institutions. It is dicult to have judicial and security systems that inspire condence in the people whose rights they should be protecting if these institutions do not deal with crimes which, because of their magnitude and impunity, completely negate the very rule of law. But justice as a means of negating impunity is not conned solely to post-conict situations. In the conict resolution process, it becomes ever more obvious that creating conditions of condence which in turn can facilitate more denitive and lasting agreements not only necessitates pu ing an end to the violations of human rights but also creating the mechanisms giving the victims of recent atrocities access to justice. It is for this reason that in the past een years each conict resolution process involving the international community has taken into account the element of justice to a greater or lesser extent. Commitments have been obtained
2 Juan E Mndez, SAPG, presentation to the Security Council, October 2004
Juan E. Mndez is a Visiting Professor at the Washington College of Law, American University in Washington. He is also a Special Advisor on Crime Prevention to the Prosecutor of the International Criminal Court. Between 2004 and 2007 he served as the Special Advisor to the UN SecretaryGeneral on the Prevention of Genocide. *This article is based on the address at the Regional Forum on the Prevention of Genocide in Buenos Aires, December 2008
from the actors to put justice mechanisms in place, or else these mechanisms have been created with the assistance of the international community, starting with the ad hoc tribunals for former Yugoslavia and Rwanda. Limits to be imposed on amnesties under international law have been discussed, as happened during the peace process in Guatemala in 1996. The international community has contributed human and material resources to the constitution of mixed tribunals that apply domestic law as in Sierra Leone, Kosovo, East Timor and Cambodia, and even, very recently, also to criminal investigation courts in Guatemala. And it is for the same reason that, in recent years, the International Criminal Court has been regarded as an inevitable instrument of justice in the search for lasting solutions in internal conicts. II. This trend in international relations is the result of pragmatic needs which have arisen from experience of conict resolution, although it o en seems that in each case we are condemned to re-open the debate on how justice can contribute to peace and why we do not have to suppose that peace with impunity is inevitable. That experience is assisted by a development of norms in international law which places limits on the powers of discretion of mediators to oer incentives to the actors in the conict to lay down their weapons and accept peace. These emerging norms in international human rights law have been recognized by the United Nations in the instructions to its mediators issued in 1999 and updated in 2005 and in the report on the Rule of Law and Transitional Justice in Conict and Post-Conict Situations drawn up by the Secretary-General in August 2004.3 Both documents set out the UNs doctrine on the importance it a aches to justice in conict resolution and peace-keeping operations and acknowledge the link between the emerging norms and those that I will be referring to later. These norms are not emerging in the sense of being recently created and therefore in the process of recognition and acceptance. Strictly speaking, the obligation to investigate, prosecute and punish genocide and war crimes has been in force as a conventional norm since 1948, and in each case it is recognized that the respective treaties crystallize pre-existing customary norms. We talk about emerging norms because over the past
3 Quoted guidelines; Secretary-General, Rule of Law and Transitional Justice in Conflict and Post-Conflict Situations, August 2004
25 years a huge amount of case law has been produced on the interpretation of conventional norms which rearms the binding nature of these obligations andalso claries and renes their scope and the mechanisms required to turn them into reality. The 1948 Convention on Genocide is 60 years old on 9 December, 2008, one day before the Universal Declaration of Human Rights. It must be emphasized that the rst multilateral human rights instrument specically conrms the obligations of the contracting states to prevent and punish the crime of genocide and, even more importantly, that the International Court of Justice stated as long ago as 1951 that all the obligations arising from this Convention have the force not only of pre-existing customary law but also of peremptory law, jus cogens, and are therefore binding even on nonsignatory states. The Convention has deciencies and weaknesses, particularly with regard to the denition of the crime of genocide and the absence of ecient mechanisms for implementation. However, the close relationship between prevention and punishment is a lasting contribution. In fact, the Convention does not develop to any great extent the concept of prevention or the means of making it eective, but it does contain specic obligations with regard to justice, from the obligation to exact punishment within a countrys own jurisdiction to the criminalization of a empted genocide or incitement to genocide, to the possibility of enforcing universal jurisdiction in each contracting state and to the possible establishment of multilateral tribunals. Of course, it is regre able that almost 50 years had to pass before these norms took eect in the form of specic measures, and even more so that we had to witness tragedies such as Cambodia, Rwanda and Srebrenica before that. The Convention not only creates parallel obligations of prevention and punishment but appears to assume that eective punishment is itself a powerful preventive tool. As we have seen, this thesis requires empirical validation, but in any case it is at least a source of inspiration for the writers of this Convention and other international instruments and a fervent expression of desire which fuels the eorts of the entire international human rights movement and its new protection role in the ght against impunity. Today, we recognize that prevention cannot conne itself to punishing the perpetrators of aberrant crimes but that it will be necessary to deploy a variety of actions involving protection, humanitarian aid and the prompting of peace negotiations. But we also recognize that
access to justice by the victims and their families is a vital ingredient of any preventive process. The obligation to punish is also present in the Geneva Conventions of 1949, which codify and extend international humanitarian law or war crimes legislation. With regard to international conicts, the obligation to punish war crimes is imposed on the opposing parties or, failing that, on all the other states party to these treaties. With reference to non-international conicts, this obligation had not been expressly stated in 1948 and was not recognized in the additional protocols of 1977, but there is broad agreement that the more recent development of international humanitarian law recognizes it as a customary norm.4 The armative obligation on States to punish crimes against humanity (CAH) was born out of the experience of Nuremberg and has been established in various ways in the years since then. The absence of a treaty that denes the notion of crimes against humanity has not prevented their acceptance as a concept or the denition of their legal eect. Furthermore, the 1998 Rome Statute did provide a list of actions that constitute CAH and denes the conditions in which various crimes acquire this classication. The systematic or massive nature of the crimes, as well as their gravity, is used as a critical norm to ensure that the norm does not open the door to intervention under the pretext of prevention and also denes the scope of the obligation to punish under reasonable and workable conditions from a practical point of view. The notion of CAH has been very useful in the recent interpretation of existing norms in international human rights treaties, such as the International Pact on Civil and Political Rights and similar instruments, which impose obligations on the States Parties to respect and guarantee their citizens rights. This obligation to guarantee rights is the principal source of the decisions taken by authorized bodies from 1988 to the present day to develop the principle that for certain violations which are particularly grave, massive or systematic, the subsequent remedy cannot exclude actual recourse to justice by the victims. With regard to the forced disappearance of persons, the Inter-American Court of Human Rights elaborated its doctrine on the obligation to investigate, prosecute and punish those responsible by dening the disappearances as crimes against humanity and also elaborated
4 Antonio Cassese, Inter. Law, Oxford: OUP, 2001, p. 247
the criterion of due diligence to determine whether these steps are taken in good faith or as bureaucratic measures which are destined to fail.5 In subsequent cases, the Inter-American Commission and Court applied these principles to declare illegal any amnesty laws which, by their nature, are an a empt to prevent these obligations from being fullled.6 In the Barrios Altos case, the Inter-American Court went further: as well as declaring that these amnesties were contrary to Perus obligations under the American Convention of Human Rights, it stated that the State was obliged to deny them legal effect in domestic law. More signicant still is the fact that, as a result of this case, Perus Supreme Court decided to implement this with immediate eect, declared the laws passed during Alberto Fujimoris period in government unconstitutional, re-opened the Barrios Altos case and ordered those involved to be re-arrested. It should be remembered that Barrios Altos is one of the cases for which Fujimori is being judged today, following an extradition warrant issued by Chiles Supreme Court and based on these international norms.7 In the more recent Almonacid and Goibur cases, the Inter-American Court reiterated this case law on amnesties, which is now very well established, and extended it to sentencing and to exemptions and any kind of obstacle to a CAH judgment. The judgments of the Inter-American Court are based on an interpretation of the American Convention on Human Rights, specically on the obligation to guarantee rights (Article 1.1), the right to an eective remedy (articles 8 and 25) and the prohibition on suspending certain rights even during states of emergency (Article 27). But it should be emphasized that these norms are also part of other regional human rights treaties and similar instruments in the universal system. The InterAmerican Court and Commission have developed a very complete doctrine on this subject, but what is even more encouraging is that courts within the domestic jurisdictions of a number of Latin American countries have welcomed the doctrine, recognized
5 6 7
Velsquez CIDH, Reports 28 and 20-1992; CteIDH, Barrios Altos, Almonacid Arellano, Goibur Chile: Fujimori Can Be Extradited, CNN Online, 22 Sep 2007
it as binding and are applying it to cases of massive and systematic violations of the recent past.8 However, it would be wrong to state that the prohibition of amnesties for CAH and war crimes is a norm exclusive to inter-American law. In the rst place, as mentioned above, this normative development was based on clauses in the American Convention which have identical counterparts in all international human rights treaties. Furthermore, there are no recorded cases of the regional systems or universal system taking an opposite path to that taken by the Inter-American Court. On the contrary, there are decisions taken by the European Court which also state that, for certain types of human rights crimes, an eective remedy cannot circumvent the ocial criminal prosecution of those responsible.9 The European Court has said that the State cannot evade its international responsibility for such crimes by oering reparations to the victims as its only response.10 The European Court has also validated the non-application of the remedy for the CAH commi ed by Nazism or Stalinism.11 There are also many precedents in the universal system which go in the same direction, despite the fact that no judicial system exists to deal with human rights violations. The UN's Human Rights Commi ee, the body responsible for implementing the International Pact on Civil and Political Rights, has put on record its concerns about various forms of impunity in welcoming the sentence of the numerous country reports and in general comments.12 Other treaty organizations such as the Commi ee against Torture have done the same.13 Within the
8 Peru, Barrios Altos, quotation from decision of the Supreme Court, April 2000, welcoming the sentence of the CteIDH; Chile, -; Argentina, "Urteaga, Facundo Ral v National Government Joint General Staff of the Armed Forces under Law 16.986." U 14 XXXIII; 15-10-1998. Fallos T. 321 P. 2767; Simn, Julio Hctor et al on the illegal deprivation of liberty, etc. (Poblete) - Case No. 17.768 -. S. 1767. XXXVIII.; 14-062005. Fallos: T. 328 P. 2056; Riveros: if you are referring to the cases where I declare the amnesties unconstitutional, it is this one: CSJN, "Mazzeo, Julio Lilo et al on rec. of cassation and unconstitutionality -Riveros-". M. 2333. XLII; REX; 13-07-2007. Fallos: T. 330 P. 3248; Colombia, Law 975 of 2005, Congress of Colombia, 25 Jul 2005; Constitutional Court of Colombia, Judgment No. C-370/2006, Enforceability of the Justice and Peace Law Kurt v Turkey Akdivar or Aksoy v Turkey (in this case, the violation of the European Convention was the systematic destruction of homes during counter-insurgency operations) Papon v France; Kolk and Kislyiy v Estonia Quotations Quotations
scope of the mechanisms based on the UN Charter (i.e. bodies not formed by conventions but created by the former Human Rights Commission which today exist under the Human Rights Council), the precedents generated by working groups and special rapporteurs date back further and are more fruitful and persistent. For the sake of brevity, I will quote only the reports of special rapporteurs and independent experts on reparations and impunity, Theo Van Boven, Louis Joinet, M. Cherif Bassiouni and Diane Orentlicher.14 The so-called Joinet Principles have been rearmed and recognized in recent times.15 This doctrine on impunity earned the explicit acceptance of the UNs political bodies in the form of the instructions for mediators and the Secretary-General's report on the Rule of Law and Transitional Justice, both mentioned above. It can therefore be stated that certain types of blanket amnesty are considered illegal in international law. These are norms of domestic law whatever their origin or hierarchy in the domestic legal system that a empt to prevent information being provided on the facts and their dissemination to society and to the victims and to prevent those principally responsible from being investigated, tried and punished or any other method of accepting impunity. In the rst place, it should be stressed that these principles apply to crimes which, because they are massive or systematic, constitute genocide, war crimes or crimes against humanity. It follows from this that there are amnesties which do comply with international law, provided they do not extend to acts that can be characterized as CAH or war crimes. Not only are such more limited amnesties not contrary to international law, in the case of peace processes aimed at ending internal conicts they may even be required by international law.16 Obviously, however, these legitimate amnesties
14 L. Joinet. Question of the impunity of perpetrators of human rights violations (civil and political) UN Doc E/CN.4/ Sub.2/1997/20/Rev.1; Theo Van Boven, M. Cherif Bassiouni and D. Orentlicher, Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, UN doc. E/CN.4/2005/102/Add.1; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, annexed to GA res. A/C.3/60/L.24 [Bassiouni Principles] 15 L. Joinet, Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, UN doc. E/CN.4/Sub.2/1997/20/Rev. 1 (1997) [Joinet Principles]; D. Orentlicher, Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, UN doc. E/CN.4/2005/102/Add.1 16 Article 6.5, Additional Protocol II to the Geneva Conventions, 1977 (confirm)
9 10
11 12 13
apply to oences under domestic law relating to rebellion, sedition or treason or other means of criminalizing the act of instigating an armed uprising against the legal order and also to less grave or non-systematic violations commi ed by government agents, as the objective is to facilitate the relinquishment of violence as a method of seeking power and the re-integration of the opposing parties into democratic life. It is likewise obvious that Protocol II amnesties cannot be extended to crimes commi ed in the course of insurgency and counter-insurgency that fall into the category of war crimes which the Geneva Conventions and their Additional Protocols seek to prohibit and criminalize.17 The question of the legality or illegality in international law of amnesties the terms of which could relate to massive or systematic crimes but are conditional, in the sense that they require specic conduct on the part of the beneciary, has not yet been resolved. It is also unclear whether the obligation to punish means a specic amount of punishment in proportion to the gravity of the crimes, or whether clemency is expressly excluded a er the investigation, judgment and punishment of those responsible.18 This is important for refuting the criticisms sometimes leveled at the human rights movement because of its insistence on breaking the cycle of impunity, arguing that this a itude is an obstacle to achieving peace in internal conicts that cause many deaths and suering among innocent victims. III. International law imposes limits on the concessions that can be made to people who are, in practice, using blackmail: unless you grant us impunity, we will continue to violate human rights. But it is wrong to regard justice as a limitation. In a sense, that is what it is, but from a more positive point of view it is an instrument for prevention and also a mechanism for creating conditions of trust which makes peace more likely in the near future as well as bringing
17 Letter from Sylvie Junod, legal adviser to the International Committee of the Red Cross, as quoted in Douglass Cassel, Lessons from the Americas: Guidelines for International Response to Amnesties for Atrocities, in M. Cherif Bassiouni and Madeline Morris, eds., Accountability for International Crimes and Serious Violations of Fundamental Human Rights, Law and Contemporary Problems, Duke U. School of Law, Vol. 59 No. 4, Autumn 1996, pg 218, Fn 128 18 However, in the La Rochela case, the Inter-American Court, in obiter dictum and with regard to the enforcement of the Justice and Peace Law for the demobilization of the paramilitaries in Colombia, appeared to reserve the right to analyse the proportionality of the penalties imposed. Quotation
about a be er-quality peace in which justice has not been sacriced. This is what the Security Council believed on 1 April 2005 when it submi ed the case of Darfur to the International Criminal Court, exercising its authority under Chapter VII of the UN Charter and the 1998 Rome Statute.19 Despite resistance from the regime in Khartoum, the investigations by prosecutor Luis Moreno Ocampo and the arrest warrants against Kushayb and Haroun helped to isolate Sudan's government internationally and therefore make it more likely to negotiate. The request to issue an arrest warrant against President Bashir (pending before a session of the ICC at the time of writing) did not result in the humanitarian and security disaster that the critics were predicting last July. On the contrary, in the days following, having decided to seek support from sections of the international community, the government of Sudan was more cooperative with peace-keeping operations than in all the months previously. It is a mistake, or sometimes a biased interpretation, to blame international justice for the fact that the government of Sudan obstructs and withdraws permission for the international communitys tasks in saving lives in Darfur and trying to reach a peace agreement. But what is clear at all events is that, while justice is essential to prevent genocide or other massive atrocities, it is also insucient. I believe that in every case the international community should act on another three fronts: protecting vulnerable populations, humanitarian aid and the search for peace.20 None of these three objectives is in conict with justice or indeed with each other. On the contrary, each one reinforces and facilitates the success of the others. Humanitarian aid is a form of protection because of the way in which it is dispensed, involving the presence of thousands of international workers among the populations at risk. However, this cannot be accomplished without a minimum of protection to ensure the safety of the beneciaries and the aid organizations and it must therefore be coordinated with the physical protection of the operations aorded by contingents of armed forces
19 Security Council Res 1593, March 31, 2005. From my first visit to Darfur in September 2004 in my capacity as Special Adviser on the Prevention of Genocide, I had added my voice to those who were calling for this action by the Security Council, SAPG, The Situation in Darfur/Sudan, Note to the Secretary-General, Dec. 12, 2004; Juan E Mndez, The Situation in Darfur, opinion article, Financial Times, US edition, March 7, 2005 20 Juan E Mndez, Special Advisor to the Secretary-General on the Prevention of Genocide, Note to the Secretary-General End of Mission Report, April 2007 (on file with author)
neutral to the underlying conict. Protection and humanitarian aid create conditions of safety which facilitate peace talks aimed at reaching a permanent solution to the underlying conict. For its part, breaking the cycle of impunity for violations which have already taken place contributes to the three objectives as it helps to remove from the environment those actors more readily disposed to impede the achievement of the other three objectives. It must be understood, however, that the actions on the four fronts must keep pace with the development of events on the ground in a dynamic way and must also be coordinated with each other so as not to allow those resisting the international communitys action like the government of Sudan in Darfur to make one objective conditional on another through the device of withdrawing its permission for each action or reneging on agreed commitments in order to gain advantages on each of these fronts. IV. The contributions of justice to prevention and possibly peace cannot be empirically tested because the test would be required to show that something that would have happened did not happen due to the action of justice. Furthermore, in internal conicts of this complexity, the factors that contribute to positive results are always many and varied, and it is not possible to a ribute signicant causality to any one of them. The negative test is, in my opinion, more feasible. I am referring to cases where solutions have been proposed without considering justice. In a number of recent cases, it can be established that solutions based on impunity, such as the Lom agreement of 1999, which was signed to put an end to the conict in Sierra Leone, turned out to be ephemeral and even counter-productive. A few months later the opposing parties were ghting again and commi ing new atrocities. Years later, the international community contributed to a peace agreement with justice in Sierra Leone with the establishment of a truth commission and a special mixed tribunal which did result in a lasting peace. On the other hand, there are certainly examples of peace agreements (Angola and Mozambique) with full blanket amnesties which have remained in force. Without wishing to make an unfavourable comparison with these agreements or the international actors who achieved them, it is useful to analyse them from the perspective of justice for the victims and consider whether these agreements are desirable in every case despite their immediate effect on the cessation of violence. Furthermore, the
same applies to them with regard to the multiplicity of factors which we have already highlighted: it is not clear that the main reason for the durability of these agreements was the impunity guaranteed to the actors in the conict. There are cases in which the relationship between justice and prevention is more obvious, although they all require a more in-depth study. In November 2004, the crisis in Cte dIvoire came dangerously close to becoming a violent confrontation between ethnic groups. The government dismissed the head of the ocial radio and television service, and his successor unleashed a torrent of racial hatred over one weekend in a situation where armed militias had been organized to back the government and groups of young patriots took to the streets and began a acking members of communities considered non Ivoirien. Cte dIvoire had accepted the jurisdiction of the International Criminal Court in 2002. In my capacity as Special Adviser on the Prevention of Genocide, I sent a note to the Secretary-General, asking him to send it to the Security Council, and they made it public almost immediately. In this note, I pointed out that the criminal jurisdiction of the ICC could be extended to cover the oences of instigation or incitement to commit the crimes referred to in the Rome Statute.21 There were, of course, other interventions aimed at defusing the explosive situation, but my note had far-reaching repercussions in the local media. Fortunately, the outbursts of racial hatred disappeared from the airwaves a er that weekend. The situation continued to be tense for more than a year but now it seems that progress is being made towards a solution. In Uganda, the arrest warrants issued by the ICC against the ve main leaders of the Lords Resistance Army (LRA) caused this guerrilla band to seek ways of resolving the conict which by that time had lasted 21 years. As a preliminary condition, Joseph Kony demanded the withdrawal of the arrest warrants, and soon voices were raised in protest against the ICC by conict resolution experts and leaders of the Ugandan community, especially the Acholi people, the main victims of the war in Northern Uganda. Rightly, the ICC prosecutor refused to agree to the withdrawal of the arrest warrants and opposed any move to request the Security Council to intervene to suspend the court actions under Article 16 of the Rome Statute. The parties to the conict may have realized that it was up to them
21 Special Advisor on the Prevention of Genocide, The Situation in Cte dIvoire, Note to the Secretary-General, 11 Nov 2004; and Press Statement by the SAPG, Nov. 15, 2004
to demonstrate that the ICC was not yet required. In a preliminary agreement during the Juba process, they agreed to create a judicial mechanism in Ugandas domestic law which could possibly satisfy the complementarity criterion that guided the ICC and persuade the tribunal to withdraw the charges in the interests of justice.22 Since then, Kony has boyco ed the Juba talks and even murdered his closest leaders. The Juba process has stalled, and the LRA is ghting in the Democratic Republic of Congo, recruiting boys and abducting girls by force, and commi ing new atrocities against the civilian population. But the Acholi people and Ugandan civil society have realized that Kony never had any serious intention of achieving peace and, in this context, they have learned valuable lessons about justice as the basis of a lasting peace which may be achieved in Northern Uganda. The demobilization of paramilitary groups in Colombia is not, strictly speaking, a peace agreement, as these forces were acting in concert with the government to combat the insurgents. But it is also a major demobilization of armed actors who in recent years were responsible for most of the more serious crimes against the civilian population. The Uribe government intended to grant them full immunity and allow them to retain a large part of the material and political conquests they had accumulated during the conict. However, during the parliamentary debate on the law known as the Justice and Peace Law, it was clear that impunity for crimes committed since 2002 could bring about the intervention of the International Criminal Court, not only against the paramilitaries but also against those protecting and harbouring them. The nal version of the law was mainly directed at the impunity of the crimes commi ed by the paramilitaries. However, the intervention of Colombias Constitutional Court, at the request of Colombian civil society organizations, dened the boundaries of the law to a signicant extent on the basis as could be seen of the case law of the Inter-American Court but also of the obligations entered into by Colombia when it signed the Rome Statute. The outcome is uncertain because it depends on the eective enforcement of the system established by the law which provides reduced penalties in exchange for declarations (free versions) by the beneciaries, which must be truthful and complete and also be reconciled by prosecutors with the evidence at their disposal and with the involvement of the victims. The process itself has produced ex22 Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lords Resistance Army/Movement, Juba, Sudan, 29 Jun 2007
traordinary revelations and major changes in the politics of the country, although it is still not evident that it will contribute to peace in Colombia. In the meantime, the Colombian Constitutional Court has safeguarded important principles of justice and nonimpunity but without jeopardizing the demobilization. Returning to Darfur, the aim of Khartoums strategy is now to obtain a resolution from the Security Council under Article 16 of the Rome Statute to suspend the execution of this and other court warrants for one year on a renewable basis. Despite the fact that this has not happened to date, in late July the Security Council noted the request to renew the authorization for the peacekeeping force in Darfur, which means that the subject is on the agenda. It would be a serious error for the Security Council to suspend the activities of the ICC a er referring the case to this court, in both cases citing the need to confront a threat to the peace and security of nations. Instead of giving in to Khartoums blackmail, the Security Council should emphasize the need to enforce the ICC's decisions and insist that all countries collaborate with investigations. Giving in on this point would only encourage Bashir to continue manipulating his supposed cooperation with the international community and place new obstacles in the way of the actions needed to protect four million people who are entirely dependent on the international community for their survival. V. The argument for sacricing justice for the sake of prevention or for the sake of peace reminds us Latin Americans of the debates at the start of the most recent wave of democratization when we were told o en with the best of intentions - that the democracy was fragile and that its sustainability depended on not insisting too much on justice for the most serious violations of human rights. In both cases, the error was to regard justice as an instrument for achieving other objectives, important though these objectives are. The ICC, the ad hoc and mixed tribunals and the judicial processes under domestic law are instruments of justice, not peace or democracy. We certainly have sucient reason to hope that the trials of the most abhorrent crimes will strengthen institutions and arm the rule of law. But even if they do not, such proceedings are justied in themselves as vehicles for justice, a value which is inherent in the human condition.
The cases that we have cited as recent normative developments rearm the need for criminal justice, or retributive justice if you will, but they go beyond that. They also rearm the obligation on governments to investigate and reveal the truth about everything that can be established with regard to massive atrocities, especially the fate and whereabouts of disappeared persons, as stated by the InterAmerican Court in the Velsquez case. Furthermore, they refer to another two obligations of the State when confronted with war crimes or crimes against humanity: the obligation to oer reparations to the victims and the obligation to reform the apparatus of the State to ensure that its institutions cannot be instruments of new human rights violations in future. It is this set of obligations which has come to be called transitional justice. As has been demonstrated, this is not a special kind of justice dierent from the justice that should reign in normal times, as the qualication "transitional" merely alludes to the specic diculties that arise at times of transition and to the mechanisms that social practices have tried out to overcome them. It is for this reason that transitional justice must not be confused with terms designed to accept the cycle of impunity and not break it, like the mistaken references to a supposed restorative justice which is presented as an alternative to criminal justice. Criminal justice at least for those chiey responsible for atrocities plays a key, non-negotiable part in our conception of transitional justice. But what is also certain is that criminal justice will never take place in ideal conditions and there will be an immunity gap which will have to be lled with non-judicial mechanisms in addition to the criminal trials and the penalties to be imposed. These additional mechanisms include eorts to investigate the facts to assert the right of victims and society as a whole to the truth. They also include the obligation to oer reparations to the victims and their families on a universal basis and in proportion to the harm suered as well as through procedures which respect their dignity as citizens. The reform of institutions, especially of the security forces, must begin by excluding from their ranks those who have abused their authority, irrespective of whether they could be liable to criminal prosecution or not. In cases in which the atrocities have had an ethnic, racial or religious dimension, justice, truth, reparations and institutional reform will be insucient in themselves to produce a lasting peace. In addition, and without abandoning the four objectives referred to, in places like Darfur it will be necessary to promote certain measures which can be summarized
under the heading of reconciliation. I am referring to the need for inter-community talks between opposing ethnic groups aimed at resolving issues around the return of property, possession of land, rights of passage and grazing rights, use of water and similar subjects which, if not resolved in an equitable manner, make it dicult to imagine a lasting resolution of the conict. Complementing these talks with the punishment of those responsible for the crimes will make it possible in future to distinguish between the criminals and the communities in whose name they commi ed the crimes. This will prevent the sins of today being blamed on future descendants and the repetition of the cycle of vengeance which is the opposite of justice. To ensure that transitional justice is eective, it must be conceived in way that is integrated, balanced and coordinated between all of these measures. This does not mean that they all have to be performed at the same time. In some cases, it is advisable to arrange them in a sequence; this is judicious in times in which the ght against impunity and the peace process are developing. At the same time, the integrity and equilibrium between the different forms of transitional justice guarantee the fullest coverage and the possibility of improved acceptance by the beneciary communities and therefore of greater legitimacy and durability.
99
Seeding the Forest: The Role of Transnational Action in the Develop-
ment of Meaningful International Cooperation and Leadership to Prevent Genocide

H R. T S K
1
I. Introduction As various calls are sounded for increased and more eective action to end the specter of genocide, a common argument that is recurrently emphasized is the need for stronger leadership by states, and especially coordinated international government action. Two current examples include the prompts contained in the reports of the Genocide Prevention Task Force Preventing Genocide: A Blueprint for US Policymakers and of the East West Institute - Proposal for an International Panel on Conict Prevention and Human Security.2 These are but two of the many examples of a chorus that continues to uphold the promise of ocial, high-level governmental action and coordination among the nations of the world towards ending genocide. Admi edly, the push for coordinated intergovernmental policy and leadership is critical. Raising the issue of ending genocide to the highest level and securing formal international cooperation at the
1 Horacio R. Trujillo is a visiting fellow at the Institute for Conflict Analysis and Resolution at George Mason University and assistant professor in the Department of Diplomacy and World Affairs at Occidental College, Currently, Horacio is working on developing new methodologies for the planning, assessment and improvement of strategies for human security-promotion programs, work that he began as the founding director of research at Humanity United and continues as a senior steward with Innovations for Scaling Impact: iScale. Sanjeev Khagram is a professor in international studies and public affairs at the University of Washington, and a senior steward for Innovations for Scaling Impact: iScale. Previously, Sanjeev has been the Director of the Marc Lindenberg Center for Humanitarian Action, International Development, and Global Citizenship at the University of Washington; a Wyss Visiting Scholar at Harvard Business School; acting dean of the Desmond Tutu Peace Centre; and a senior policy advisor with the World Commission on Dams. In 2009, Sanjeev was selected as a Young Global Leader of the World Economic Forum Genocide Prevention Task Force, Preventing Genocide: A Blueprint for U.S. Policymakers, Washington, D.C.: United States Holocaust Memorial Museum, The American Academy of Diplomacy, and the Endowment of the United States Institute of Peace, 2008; and International Task Force on Preventive Diplomacy, New Initiatives on Conflict Prevention and Human Security: Proposals for the Establishment of an International Panel & Parliamentarians Network, Brussels: East West Institute, June 2008
highest levels of national governments and intergovernmental organizations on the issue is necessary if we are ever to see a real end to this crime against humanity. However, when these calls unsurprisingly do not result in the full weight of the worlds governments coming to bear on the issue, some observers contend that this is clear evidence of a lack of meaningful global action to end genocide, and, thus, re-double their eorts to secure this high-level cooperation, which is seen as the key to preventing genocide. While calling out the failure to achieve ocial, high-level international cooperation is part of the solution to end genocide, it is important to ensure that such a focus does not inadvertently overlook the proverbial forest for the trees. What remains missing in these various calls for coordinated intergovernmental leadership is a broader strategic outlook considering the wider set of emergent and interacting mechanisms necessary to reach the goals that are desired robust recovery from, mitigation of, and ultimately prevention of genocide in the world. Indeed a broader strategy is crucial in order to ensure that a focus on promoting ocial, high level international political cooperation does not inadvertently deter a ention and resources from or, even worse, delegitimize other eorts that are necessary to be realized to prevent genocide. Greater clarity and support is essential from all key stakeholders of the broader strategy to end genocide: a strategy which involves a range of transnational problem-solving approaches in the form of transgovernmentalism, transnational advocacy networks, epistemic communities, and global cross-sectoral action networks. These transnational eorts both among non-governmental actors, such as advocates, subject experts, and private sector rms, as well as ocials at lower levels of government engaged in seemingly routine execution of their roles o en catalyze and reinforce more formal high-level intergovernmental policy coordination and action. Moreover, these transnational initiatives also contribute directly to global social change, such as creating a world without genocide, through multiple mechanisms including the
re-framing of issues, agenda-se ing, promoting norms, generating innovations in policy, delivering essential services on the ground, and holding powers accountable. In this paper, we set out to explore the importance of these transnational problem-solving mechanisms in relation to the development of more formal, high-level and ocial international political cooperation and leadership to end genocide. In the rst section of this paper, we will initially review four types of transnational cooperation that have been identied as important to the development of meaningful global governance on a variety of critical issues from climate change to global economic development to universal human rights law: transgovernmental networks, transnational advocacy initiatives, epistemic communities, and global crosssectoral action networks.3 In the second section, we will turn to identifying examples of transnational cooperation of these four types that are catalyzing and supporting deeper, formal, high-level international political cooperation to prevent genocide. II. Transnational Cooperation and the Emergence of International Policy Coordination The goal of high-level international cooperation is clear in various documents laying out strategies for ending genocide and mass atrocities. Recommendation 6-1 in Preventing Genocide: A Blueprint for US Policymakers is for the US Secretary of State to engage in diplomatic eorts to develop a formal network of like-minded governments, international organizations and NGOs dedicated to ending genocide and mass atrocities. The high-level political focus of the Proposal for the Establishment of an International Panel on Conict Prevention and Human Security is even more apparent. Yet, few calls for the prevention of genocide include within them a clear recognition of the importance of transnational advocacy networks, epistemic communities, transgovernmental networks, and global action networks to the emergence of meaningful international policy coordination and leadership. The role of such transnational eorts may be implicit in these calls, but outside of the descriptions of these programs contained in their proposals for support from various entities they are rarely explicitly identied. They are even more rarely recognized as essential building blocks for ending genocide, and not
3 See Sanjeev Khagram, Possible Future Architectures of Global Governance: A Transnational Perspective/Prospective, in Global Governance 12, 2006, pp. 97-117
just utilitarian vehicles to agitate for meaningful international policy coordination and leadership. Transnational Advocacy Networks Perhaps the most easily understandable of these forms of transnational action are transnational advocacy networks (TANs), as formulated by Keck and Sikkink in Activists Beyond Borders and Khagram, Riker and Sikkink in Restructuring World Politics.4 TANs are ensembles of predominantly nongovernmental civil society actors that are tied together across national borders and across multiple levels largely by their shared values, common discourses, and dense exchanges of information and services. TANs can take the form of short-term campaign coalitions, broad grassroots mass-mobilization eorts, or more formalized international civil society organizations. TANs are particularly likely to arise when domestic inuence eorts are less able to be eective on their own and when political entrepreneurs in national se ings or in international civil society organizations recognize the potential benet of engaging in common eort with like-minded activists across multiple locations and levels. These emphases align with the factors that have facilitated TANs greater emergence and eectiveness in contemporary international politics increasingly cost-eective means of international communication, which spurs greater awareness of shared values and principles as well as makes the deepening of these values possible, and the rise of activism in previous decades which generated common understandings of the potential of activism and increasingly dense ties among activists across borders. TANs eectively inuence more powerful national government bodies, international organizations, and private sector corporations through a range of tactics. TANs are particularly adept at strategically managing information and knowledge. TANs inuence, however, is characterized not simply by their members sharing of information with each other and with the targets of their inuence to shape normative frames and understandings of issues, but also by their exploitation of this information to hold targets accountable for commitments to formal agreements and even general principles.
4 Margaret Keck and Kathryn Sinkink, Activists Beyond Borders: Advocacy Networks in International Politics, Ithaca: Cornell University Press, 1998; and Sanjeev Khagram, James V. Riker and Kathryn Sikkink, Restructuring World Politics: Transnational Social Movements, Networks, And Norms, Minneapolis: University of Minnesota, 2002
Additionally, they can be characterized by their exploitation of the reach of their networks relationships to apply leverage on targets. Much of this inuence can be characterized as a form of venue shopping by TAN members in eorts to identify where they can most eectively employ the information contained within the network. In addition to these eorts, TANs can also engage in symbolic politics, although these eorts tend to be employed as complements to the other inuence channels as opposed to a channel unto themselves. Employing these various methods, TANs can promote international policy coordination and leadership by (1) raising an issue for the a ention and inuencing the agenda of international decision makers, (2) inuencing the positions of particular states and other powerful actors, (3) impacting procedures of national and international institutions, (4) inuencing particular policy changes within states, international organizations, or other target actors, and (5) altering the broader behavior of key actors in the international arena. Finally, it is worth highlighting that TANs o en facilitate the negotiation of norms across culturally and politically diverse actors, such that the result of their inuence can be not only a fragile and potentially resisted transmission of Western values to other regions but the emergence of shared norms that are potentially more persistent. TANs have been identied as critical to international normative, policy and practice shi s on a variety of issue areas from human rights, as in the historical example of the abolition of the transatlantic slave trade or more contemporary eorts: to promote womens rights, economic development as in the case of debt relief for Highly Indebted Poor Countries (HIPCs) and large dam projects, to human security, with the banning of land mines, and the activities of multinational corporations as in the case of sweat shops. In terms of eectiveness, it has been suggested that TANs are particularly eective on issues that entail bodily harm and legal equality of opportunity, both of which are directly relevant to the issue of genocide prevention. These issues include not simply the end stage of genocide but also the earlier stages of the genocide process, which entails the marginalization, both social and legal, of specic communities. As will be discussed in the next section, the prevention of genocide as an issue area reects all of these characteristics that suggest the potential for eectiveness of a TAN, and signs of the early development of a TAN can be seen in the
relations among groups of advocacy organizations facilitated by the behind-the-scenes eorts of Crisis Action. Epistemic Communities Epistemic communities became a regular topic of international relations discourse with the publication in 1992 of the special edition of International Organization led by Haas introductory article on epistemic communities and international policy coordination.5 Similar to TANs, epistemic communities are transnational networks of knowledge experts rather than governmental ocials or advocates. Such knowledge experts need not be scientists, per se, but are individuals who share common practices for generating systematic understanding about a common set of problems to which they dedicate their professional a ention and competence. In addition to these common practices applied to a common subject, members of epistemic communities o en also share normative beliefs and, distinguishing them from advocates, causal beliefs and notions of what constitutes valid knowledge. As compared to TANs, epistemic communities engage less in the strategic management of information as much as the generation and diusion of new ideas and knowledge. Through this generation and diusion of new ideas and knowledge, epistemic communities can inuence the policies and practices of states, international organizations, private sectors rms and civil society organizations. More specically, the ideas and knowledge generated by epistemic communities can help states and nonstate actors, like advocates and sub-state governmental actors, articulate cause-and-eect relationships relating to the issues of concern to them, and thus frame the issues and the actors interests in the issues, as well as propose specic policies and activities to be implemented. The potential role of epistemic communities has risen as the complexity of the international political system has increased as has the complexity of issues confronting international decision makers, from climate change to the dynamics of international security. Epistemic communities can thus help to facilitate and inuence international policy coordination by addressing the need of decision makers in decreasing the uncertainty of dynamics or the issues they are confronted by, interpreting and making sense of information about these
5 Peter M. Haas, "Epistemic Communities and International Policy Coordination: Introduction, International Organization, 46:1, 1992, pp. 1-35.
issues, and institutionalizing the understanding of these issues. The inuence of epistemic communities has been examined in the development of international economic arrangements, ozone protection eorts, nuclear arms control agreements, and the evolution of the international food aid regime. Given these characteristics, it can be suggested that a critically important epistemic community that has already emerged and heavily inuenced the eld of genocide prevention is that of transitional justice. While not expressed in these terms, Arthurs conceptual history of transitional justice nicely outlines the inuence of a transnational group of experts whose eorts to engage in an inherently comparative exercise of capturing lessons and generating new ideas and information about transitional justice has inuenced national and international policy to assist societies in recovering from conict and mass atrocities in order to build towards a be er future.6 As will be discussed in the next session, there is new movement in the emergence of a transnational community of knowledge experts focused on aiding states and non-state actors in generating new understanding to identify cause-and-eect relationships, reduce the uncertainty around, and identify policy proposals and specic points for negotiation around military operations to prevent genocide. Transgovernmental Networks Transgovernmentalism, as discussed by Slaughter in A New World Order, is a critical type of transnational action that most overlaps with more commonly understood and accepted international, or intergovernmental, cooperation.7 Transgovernmental networks are the relations among governmental ocials who cooperate with each other on mostly more technical issues outside of the formal channels of international, or intergovernmental, diplomacy. The increasing emergence and use of transgovernmental networks has been prompted jointly by increasingly complex and dynamic transnational challenges, from climate change to terrorism to economic volatility, that require similarly dynamic governance structures, and the emergence of technology to facilitate cooperation across borders. Distinguishing these transgovernmental networks
6 Paige Arthur, How Transitions Reshaped Human Rights: A Conceptual History of Transitional Justice, Human Rights Quarterly 31:2, May 2009, pp.321-367 Anne-Marie Slaughter, A New World Order: Government Networks and the Disaggregated State, Princeton: Princeton University Press, 2004
from intergovernmental networks, Slaughter emphasizes that transgovermental networks, which are largely horizontal and where government ocials from one or more states interact roughly with similarly positioned partners in other states, can be more innovative and dynamic, compared to structures and processes that are more vertical or hierarchical. While transgovernmental networks o en function under the umbrella of broad international agreements, they can also exist outside of formal international cooperation. In either case, they can catalyze and support more comprehensive or higher-level intergovernmental cooperation by establishing pa erns of more routine cooperation and eectiveness among states. The most important of these is through sharing of information, including ideas, experiences, problems and solutions. A second is through allowing for a certain extent of cooperation before or in the absence of complete consensus among governments being established. This cooperation below the level of top-tier international diplomacy can also involve the enforcement of existing laws, including capacity-building for enforcement, or in the harmonization of national policies. Examples of these transgovernmental networks abound, and are apparent especially among legislators, judges and regulators, all with implications for genocide prevention. Transgovernmental networks among legislators, such as the Parliamentarians Network on Conict Prevention and Human Security prompted by the International Task force on Preventive Diplomacy, provide these non-head of state policy makers with a novel means for engaging in foreign policy, whether through formal associations or informal study groups. Among judges, transgovernmental networks can be seen in judges from one country citing the arguments if not the rulings of their counterparts from other countries and engaging with each other through various in-person se ings, such as conferences and trainings. These transgovernmental networks among judges share many characteristics with epistemic communities as discussed below, with the interaction among these actors not taking place through direct cooperation but instead in the form of exchanges of ideas and development of shared senses of causal beliefs and validity contained in judicial rulings and academic writings. In specic relation to the prevention of genocide, an especially salient example of transgovernmetal cooperation among judges has been the
development of international human rights law, the body of which has been framed in international treaties but the application of which has arisen in the rulings of myriad judges in various courts throughout the world. Finally, international regulation is teeming with some of the most prominent transgovernmental networks, such as the various networks of regulators regularly working on the harmonization of trade and nance policies and responding to the need for improved regulation, such as FINCEN, the Financial Crimes Enforcement Network. In some cases, they can be initially primarily motivated by one state or one type of interaction, which can nonetheless spur transgovernmentalism, such as the network of more than 1,000 nancial regulators from more than 100 countries that have participated in the US Securities and Exchange Commissions annual major training programs for foreign securities regulators. As will be discussed in the following section, this type of training in regards to genocide prevention similarly promises to develop a robust and eventually inuential transgovernmental network working to prevent genocide. Global Action Networks Global cross-sectoral eorts and initiatives identied as global governance networks, global policy networks and increasingly global action networks (GANs) are another emergent form of transnational cooperation that can lead to improved international coordination and robust global problem solving more broadly. As Waddell and Khagram note in Multi-stakeholder global networks: emerging systems for the global common good, GANs stand in contrast to transgovernmental networks, TANs and epistemic communities primarily, but not exclusively, in the scope of their membership and the scale of their articulated missions and goals that connect their members.8 Like transgovernmental networks, TANs and epistemic communities, GANs are not dened by a particular organizational structure or proscribed membership. Yet, compared to these three other forms, which center around governmental ocials, advocates or knowledge experts, GANs have an intentional character of bringing together stakeholders from diverse sectors in the issue area in order
8 Steve Waddell and Sanjeev Khagram, Multi-stakeholder global networks: emerging systems for the global common good, in Pieter Glasbergen (ed.), Partnerships, Governance And Sustainable Development Reflections on Theory and Practice, Edward Elgar, 2007
to facilitate intentional learning and strategic action within and among these actors. The diversity of the communities targeted for engagement in a GAN can dier among GANs and can include diversity in terms of geographical home or focus of activities of actors, role of the actors (e.g. advocates, researchers, journalists, funders, policy makers), scale of focus of actors eorts (e.g. national, international, local, regional), and even framing of the common issue (e.g. conict prevention, peacebuilding, genocide prevention). In addition to this essential characteristic of diversity of membership and the correspondent emphasis on strategic action, GANs are characterized by other common traits, including their focus on systemic change at a global level to address a public goods issue (e.g. climate change, international conict, depletion of sh stocks). The focus on systemic change, the most dicult of these characteristics to understand, can be illustrated by the dierentiation of the two levels of goals of GANs. First, a GAN, which is a exible, voluntary network of component organizations and individuals, is held together by its members sharing of a common systemorganizing goal, which articulates the high-level change in the global social and physical dynamics that they hold in common. Second, each member holds organization-specic goals that contribute to this larger system-organizing goal. While members do not need to agree to each others organization-specic goals, GANs hinge on agreement of its members to a system-organizing goal, which can emerge from and become rened by interactions of these members rather than be proscribed by a central organizing entity and thus encompasses the organization-specic goals of the members. While these elements of intentionality characterize GANs, they are also characterized importantly by their emergent quality, with the system-organizing goal of a GAN and the membership of GAN having a uid even if resilient consistency. GANs can inuence international policy and governance in a number of ways stemming from the dynamic dialogue and learning among their members. In particular, GANs can serve as forums for negotiating, coordinating, implementing and innovating particular policies that can then be taken up by governments or be assumed by the GAN members themselves or others. Examples of the inuence of GANs range from the reporting practices pioneered by the Global Reporting Initiative, the refocusing of development eorts of national governments and international organizations
facilitated by the World Commission on Dams, and the raising of the prole of and spurring of corruption prevention activities by a range of actors through the Extractive Industries Transparency Initiative. As has been mentioned in the introduction of this article, the value of a GAN in preventing genocide has been identied specically in Preventing Genocide, the volume produced by the American Academy of Diplomacy, the US Holocaust Memorial Museum, and the US Institute for Peace. This specic call, however, focused on the establishment of formal network to be motivated by US Government leaders. While this call for US leadership and a formally ensconced structure should be welcome acknowledgement of the potential contribution of such a network, perhaps the mission and goal of such a forum could be supported by an unocial and informal GAN that can motivate participation and engagement from a broader spectrum of stakeholders that might not be able to be engaged in a formal process. In the next section, we review the early and promising eorts by a cohort of organizations to jumpstart such an eort. III. Promising Examples of Transnational Action for the Prevention of Genocide So, while calls for high-level state action and intergovernmental cooperation are necessary to address global social problems such as genocide, the lack of their immediate appearance should not deter us from recognizing, supporting, harnessing and even redoubling our eorts to spur and support emergent transnational eorts that are critical development of state action and inter-state cooperation and that represent factors that are necessary to shi ing norms, rules and behaviors to prevent genocide. In this section, we briey review examples of emergent transnational eorts that hold the potential, if successful, to pushing us meaningfully forward in our eorts to end genocide. Development of transnational advocacy networks for the prevention of violent conict and mass atrocities. Among the most promising transnational activities that could further more formal international policy coordination and leadership on genocide prevention is the development of transnational advocacy networks by actors such as Crisis Action. These eorts by Crisis Action and others bring together various advocacy organizations in informally organized coalitions focused on dierent crisis situations, from Iraq to Sudan to Burma, to engage
in exactly the type of strategic information-sharing and leverage and accountability politics to inuence governments and international organizations that have been identied as characteristic of TANs. Additionally, these networks also promote coordinated symbolic activism among their members to complement and reinforce their other strategic activities. While these TANs organized around the prevention of genocide and mass atrocities have as objectives to inuence the immediate policies of governments and international organizations regarding specic crises, when looked at in the larger context of systemic changes to the global system to prevent or stop such crises these TANs should not be judged exclusively or primarily on their ability to aect current crises. Instead, a signicant, if not the greatest, value in the operations of these TANs may be their promotion of sustainable, systemic international policy coordination and leadership by those channels previously identied. These include: (1) raising the issue of genocide and mass atrocities on the agenda of international decision makers, (2) inuencing the positions of particular states in the discourse of international security, (3) inuencing procedures of national and international institutions around the prevention of genocide and mass atrocities, (4) inuencing particular policy changes regarding genocide and mass atrocities within states, international organizations, or other target actors, and (5) inuencing the broader behavior of states regarding genocide in the international arena. Spurred by the innovative model of the MARO Project of Harvard Universitys Carr Center for Human Rights and the U.S. Army Peacekeeping and Stability Operations Institute (PKSOI), a community of international actors, coalescing as an informal network under the moniker of Course of Action International is working to motivate governments and global and regional multilateral institutions throughout the world to recognize serious operational planning as an essential driver for meaningful preventive action against and more importantly deterrence of genocide. The COA International movement is not focusing exclusively or even primarily on advocating in front of government and military entities to inuence them. Rather, it is working to engender this understanding of not only the importance of military planning but also the methodology and capabilities of military planning among academics, advocates, multilateral and nongovernmental humanitarian relief and
development organizations, and other civil society organizations to seed this thinking more broadly and generate a paradigm shi in our thinking on genocide prevention by popularizing the science of this phenomenon much like happened in the realm of climate change. While the Course of Action International movement is an example of an emerging epistemic community that has the potential to both spur on its own meaningful global action to prevent genocide and lay the groundwork for more ocial inter-governmental cooperation, this potential inuence itself benets from, both indirectly and directly, the inuence of a predecessor epistemic community institutionalized in the International Association of Genocide Scholars. It has arguably been the work of the myriad members of the International Association of Genocide Scholars, the formalized institutionalization of the community of researchers of the costs and causes of genocide, that has provided policymakers, advocates and the public alike with an articulated understanding of genocide. This information allows policymakers to meaningfully consider component eorts, such as planning for eective military action, for genocide prevention. Similarly, if we look closely enough we can see the seeds of an emergent transnational governance network of senior civil service ocers in the Engaging Governments in Genocide Prevention Program initiated by the Columbia University Center on International Conict Resolution and now housed at the George Mason University Institute for Conict Analysis and Resolution. These civil service ofcers, like those Slaughter identies, shape many other specialized knowledge ma ers, can someday be working outside of the spotlight to identify, correct, and prevent policies that make genocide possible, whether through commission or omission. We need to recall that while genocides strike us as crises situations that demand high-level and immediate action, if we are reacting to genocides when they are visible crises it is too late. We have missed the myriad small policies and political decisions that over time have laid the groundwork for and made possible the active genocide. Even in their crises stages, if we are to look to histories of genocides, such as the handling of the Rwandan genocide, it has been career national security and foreign service ocers outside the spotlight who were critically inuential in shaping the responses of states. Similarly, these ocers were in the best positions to identify early signs of the potential for genocide and raise the warning for preventive ac-
tion. The importance of recognizing the emergent nature of these eorts is made clear by the example of the EGGP. If one were to look only at the immediate outcomes of the EGGP, one might draw a hasty and unfortunately erroneous conclusion that it was simply about training these individual ocials and that such training is limited in its inuence. In fact, the power of the EGGP is in its methodical development of a transnational governance network, the inuence of which will grow exponentially over time (as networks do with the addition of nodes) and that the considerable value of this project will ultimately be in the number of crises that we never recognize have been averted by the incremental decisions made by and lessons shared among the myriad members of the network. Finally, we turn our a ention to the early eorts of a small cohort of organizations and their leaders to foster a GAN to address violent conict and mass atrocities. This cohort, which includes representatives from organizations as diverse as Crisis Action, the Desmond Tutu Peace Centre, and the International Association of Genocide Scholars, has initiated an eort to systematically develop a GAN, with the rst steps in the process being the development of a social network map of the organizations working in the eld of genocide prevention. The process also entails gathering together a broader group of organizations from other segments of the eld to join them in strategizing about the GANdevelopment process. The social network mapping process is a particularly notable component of this process, as this eort, which has been informed by a survey of more than 300 organizations around the globe, is producing a database that will allow for stakeholders to understand the broad contours of the structure of the eld in terms of dierent types of organizations relations with each other (e.g. humanitarian relief agencies ties to peacekeeping/security organizations to advocates and so on). The network believes that deepening and broadening these relationships might help strengthen the overall eld, and analyzes what roles are under-integrated in the eld (e.g. advocates of communities aected by violence, media providers, faith-based advocates, and business actors). This undertaking to develop a GAN to prevent genocide is still in its infancy, and as such many of the characteristics of GANs still have to be realized, such as the boundaries of the GAN and identication of a system-organizing goal. This is a notably challenging step as many of the actors identied in the mapping of the eld do not strongly
associate with the mission of the prevention of genocide or related formulations related to atrocity crimes. Instead, many of the organizations identify their goals in broader or more constructive terms, such as conict prevention and transformation, peacebuilding, and international justice. This diversity of organizational missions is not an insurmountable obstacle, as all GANs are comprised of organizations with their specic goals, but it does suggest that the development of a GAN to prevent genocide and mass atrocities might actually be realized as a GAN to promote sustainable peace and security or the like. However these eorts to develop a GAN might ultimately be framed, this experience can inform eorts to develop a more formal network of governments, international organizations, and civil society such as that proposed in Preventing Genocide, as well as establish the groundwork for such a network. And, even aside from these calls for the development of formal network, the development of a more loosely organized GAN holds considerable promise to facilitate improved international policy coordination through its oering of a forum. Such a forum would oer participating organizations the chance to negotiate, coordinate, implement and innovate policies that can then be taken up by governments or be assumed by the GAN members themselves individually or collectively. IV. Conclusion In this article we have suggested that the near exclusive focus on high-level international action can inadvertently detract a ention from lower prole but nonetheless critical emergent eorts to build the comprehensive global architecture necessary to prevent genocide. To illustrate this, we have focused on four forms of transnational action that both support the development of high-level international cooperation but are themselves also critical forms of global policy development and governance. And, in spite of the focus of much of the eld on high-level international policy cooperation, we have also identied emergent examples of each of these four transnational forms of global cooperation and governance to end genocide. These transnational problem solving eorts, if successful, will not only increase the likelihood of realizing the desired high-level international policy coordination to end genocide, but also make genocide prevention even more likely by inuencing global norms, rules, laws and behaviors of states and peoples. Yet, the success of these emergent eorts
cannot be taken for granted, and adequate a ention, resources, and support needs to be given to fostering these forms of transnational cooperation individually as well as to weaving them together and integrating them with higher-level eorts. Though the specter of genocide is painfully real and calls for international action by national governments are warranted and necessary, policymakers, advocates, and funders need to also give adequate a ention to these multiple interacting eorts and mechanisms that together hold the promise for ending genocide once and for all.
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Religion and the Prevention of Genocide and Mass Atrocity*
In reviewing the instances of genocide and mass atrocity that plagued the twentieth century, the role of religion stands out. Unfortunately, religions role is notable not for preventing the outbreak or spread of mass violence, but rather for legitimating and propelling it. There are sadly too many instances of state governments that employed religion in an instrumentalist way to legitimize political polices, and actors who manipulated religioethical narratives as they made the argument for the eradication of a race or religion that they deemed inferior. The Balkans comes to mind here, as does Nazi Germany. Turning from Europe, one confronts the churches in Rwanda, located throughout the countryside in rural areas, which were generally well aware of emerging social and political dynamics but failed to issue warnings up their institutional command structure, to actively challenge the ideology of ethnic superiority, or to mobilize a meaningful civil rebellion against the emerging threat. Instead, some Rwandan priests and nuns joined the massacre. And like the Buddhist monasteries that were taken over by the Khmer Rouge in Cambodia, Rwandan churches those central community gathering places people ock to in times of crises and displacement - were sometimes used as execution centers. The manipulation of religion by political leaders to legitimate genocidal pogroms and the use of religions institutional capacity to carry them out is not the only story of the relationship of religion to genocide. In a dierent manner, the treatment of
* These remarks are drawn in part from insights provided at a Religion and the Prevention of Genocide and Mass Atrocity roundtable discussion held April 2008 at the U.S. Institute of Peace. Bryan Hehir, Andrea Bartoli, David Little, Qamar-ul Huda, Claude dEstree, and Joseph Montville presented at this event. The material in this article will be published in a USIP Special Report in 2010. Susan Hayward is a Senior Program Ocer in the Religion and Peacemaking program the U.S. Institute of Peace where she supports eld projects in Sri Lanka, Iraq, and Colombia. Hayward also works with USIP to synthesize theory and practices that best leverage religious resources and promote pluralism in the pursuit of peace and justice in conict zones. She is a graduate of the Fletcher School at Tu s University and Harvard Divinity School.
religion in Cambodia by the Pol Pot regime is notable. The Khmer Rouge a empted to control and then to obliterate the religious sphere, excommunicating or killing nearly all of Cambodias monks. The state was motivated by a communist ideological aversion to religion. But perhaps there was something else at play - a recognition by political leaders that the sangha (Buddhist monastic community), with its vast numbers, reach, and authority, stood as a threat to the state.2 And indeed, in some historical instances the religious sector has served this purpose well - mobilizing opposition and ideological challenge to genocide and mass atrocity. Certainly if we want to know how to prevent genocide, we need to understand what makes it transpire. Religion is one dynamic that seems to have fostered the outbreak of mass violence in the ancient and recent past by creating zero-sum identity boundaries, legitimizing genocidal political policies, and lending its institutional capacity to organize and carry-out genocide. But we should not conclude that the means to prevent genocide lies in the suppression of the religious realm. Why have some politicians worked so hard to cloak their genocidal political policies in religious piety, primordial mission, and legitimacy? Why do some state institutions bent on authoritarianism strive to suppress, manipulate, or control religious authority and institutional power? Perhaps the answer lies in the fact that as much as religion can propel
2 The sangha as a threat to state authoritarianism was on display in Burma/Myanmar in 2007, when monks across the country mobilized in demonstrations against the ruling junta. It is worth noting that the sangha has particular power to resist in Burma/Myanmar due not only to its sheer numbers and reach, but also to its social position and influence. There are several reasons for this: individual soldiers and the state are less willing to respond brutally to monk protestors; monks immediately had the sympathy of many Burmese; and they are able to conjure moral imagination and argument, as demonstrated by their effect in eliciting sympathy not only within Burma/Myanmar, but around the world. Recall as well the degree to which the junta has tried to cloak itself in Buddhist piety, a project the monks dismantled with their protests. This was a good example of religious ideas (and rituals), institutions, and leaders power to organize/ mobilize, draw global attention to, and nonviolently resist structural violence.
and legitimize political pogroms, so too can it disrupt and prevent them. So I come to think of the faith-based information gathering and lobbying that has fueled the campaign to save Darfur, putting moral and political pressure on governments and international institutions to respond. I think of religious institutions and clergy that are embedded throughout rural areas in countries and are a uned to emerging political and social dynamics and are therefore well positioned to recognize and respond to warning signs, especially if properly trained. I think of religious clergy and lay people in historical moments who have issued pro-social religious articulations as a challenge to exclusive and violent religious ideology and so disrupted political authoritys a empt to cloak itself in moral legitimacy, or who have used religious institutions as authentic refuges of protection and centers for resistance organization. It seems that states bent on genocidal destruction have learned something that peacemakers are only recently rediscovering: the religious realm is powerful. Any organization intent on preventing genocide and mass atrocity who ignores this fact is not only forgoing a powerful ally, but also risks handing over the power of the religious realm into the hands of those with more nefarious agendas. The task of this presentation is to review religions role in commissioning genocide and mass atrocity as a means to discern how to disrupt it through programs in which governments, international organizations, and other interested activists (both religious and secular) might engage. But I also seek to understand what resources exist within religion that can be mobilized in the prevention of genocide and mass atrocity: institutional capacity that can be marshaled as early warning systems; theological language and moral imperatives that can shape cultural and political norms within and between communities and states; or inter-religious initiatives that can create strong social connections between various communal groups that may prevent easy manipulation of communal dierence to propel mass violence in the future. In short, how can religious leaders, scholars, communities, idea, and institutions be included in the work to prevent genocide and mass atrocity? Let us begin by reviewing several historic examples to understand be er how religion has propelled genocide. The Holocaust, of course, is a prime example of religious identity marking a communal divide and serving as a trigger for genocide. In Nazi Germany, many of the German Luthe-
ran churches provided theological support to the persecution of Jews. Prominent theologians promoted an inherently anti-Semitic Aryan Christianity that sought a redemptive cleansing of Jewish-inuence from Christian practice and theology, and portrayed Jesus as an Aryan seeking the destruction of Judaism.3 Some Christian leaders used the Jews as scapegoats holding them responsible for killing Jesus, arguing that the contemporary Jewish community was a threat to Christianity. Evidence of the centrality of this theological project in German Christian life was witnessed in the establishment of the Institute for the Study and Eradication of Jewish Inuence on German Christian Life in 1939. At this dubious research center, theologians, many of them prominent and inuential, actively sought to marry Christianity with National Socialism, or religious ideology and ethic with nationalist political ideology and ethic. Of course, not all German Christian theologians and clergy were guilty of providing the ideological, mythic, and ethical fodder to Nazi Socialism, as we will discuss below. However, a great number of churches in Europe were either sympathetic to the Nazis, or were silenced by fear or apathy, and so complacent. Religion can play a role in galvanizing non-religious identity divides as well. In Rwanda, some within the Catholic Church can be held responsible not just for contributing to the evolution of a divisive ethnic politic, but, more ominously, for actively participating in carrying-out the genocide. As argued by Timothy Longman in his work, Belgian and French Christian missionaries perpetuated the colonial project to starkly dene and divide the local population into Tutsi and Hutu.4 By shi ing allegiance between the two groups in response to changing balances of power between them, the Church helped to reify ethical divides, politics, and mutual antagonism. In the days of the genocide itself, some churches, as centrally-located community gathering places to which many Tutsi ran for refuge, became slaughter houses, sometimes with the support of parish
Susannah Heschel, When Jesus was an Aryan. In Gods Name: Genocide and Religion in the Twentieth Century (eds Omer Bartov and Phyllis Mack. New York: Berghahn Books, 2001) 79-80 See Timothy Longman. Church Politics and the Genocide in Rwanda. (Journal of Religion in Africa. 31(2). May 2001) 163-186
priests and nuns who now stand accused of aleting itias to the presence of Tutsis within.5 Finally, in Bosnia, scholar Michael Sells has argued that the Serbian state drew on religio-mythic rhetoric, imagery, and ritual, re-enacting in contemporary times a Serbian myth of the nations defeat by the O oman Empire six centuries earlier.6 Some Serbian bishops enthusiastically encouraged Milosevics nationalist program, and military planning was sometimes conducted, and massacres ritualistically celebrated, in the churches. In the nationalist mythic narrative, the Serbs dened themselves as historic victims and drew heavily on martyr worship to propel their program of just retaliation for historic grievance. In so collapsing history into the present time, a powerful and violent intertwining of religion and nationalism, a confusion of history with myth, faith with vengeance, and a collective national memory densely populated with images of martyrdom and sacrice, war and massacre created a soil that produced the death of thousands of non-Serbs.7 Several lessons can be taken from these examples. First, and most basic, religion was a fuel to create and galvanize communal identity divides that became enemy demarcation lines. Second, religion in the German and Serbian examples provided mythological-historic narratives that propelled exclusivity, an identity of victimhood (o en reaching far back into history to clutch at stories of past abuse wrought upon the community by the target community), and a sense of threat from other communities that rationalized collective aggression against them. Religion rationalized aggression by framing reality in a good vs. evil apocalyptic paradigm that justied violence for the sake of a messianic end. Institutional resources churches and theological research centers were utilized to intertwine religious and political ideology into one potent cocktail. Sadly, in places where the state was increasingly becoming authoritarian and violent, the religious sphere, rather
5 Several nuns and priests have been tried and some indicted by the ICTR. The majority were Catholic priests and nuns, but others, including an Anglican bishop and a Seventh Day Adventist Church pastor also have stood accused. In many instances, these clergy are accused of directing militia to Tutsis taking refuge in their church buildings or of refusing to protect Tutsis, instead purging them from their hospitals. See Michael Sells. The Bridge Betrayed: Religion and Genocide in Bosnia. (Berkeley: University of California Press, 1996) Omer Bartov and Phyllis Mack. Introduction, In Gods Name, 7
than serving as a check to increasing state power, o en provided warrant and its own incitement to violence.8 Undoubtedly for myriad reasons, including those political, economic, and religious, as well as a fear for personal security, high-ranking clergy partnered with high-level political elites granting religious legitimacy to political power and programs and helping to ensure complacency or support from their followers. All of this helped create the soil in which genocide found root. In fact, religions marriage to ethno-nationalism in these examples, as has been argued by David Li le, made resolution of the conict and any eorts towards the prevention of its outbreak into mass violence all the more challenging. Stakes were raised, passions inamed, commitments to a cause emboldened, and ultimate justication for violence rendered.9 The last thing I want to do is fall victim to the temptation to observe only religions negative role in reinforcing violence. The reality is that in conict environments, there are always competing religious narratives. There are those actors who employ religion to strengthen (either directly or indirectly) the hand of those wielding the machete, and those who employ religion to motivate nonviolent resistance. As important as it is to grapple with the
8 This point and others beg a question: does the religious sphere have a legal responsibility to marshal its resources to prevent mass violence or to serve as a check to increasing state power? And can religious leaders be held legally accountable for promoting theologies used by others to incite hatred and violence? Ultimately in the international order, responsibility to protect citizens lies with the state, and it is the state or those organizations that actively organized and carried out the genocide (including religious actors who were actively involved in genocide) that are held legally accountable. Whether religious ideology that in some way motivates or justifies genocide can be legally accounted for remains a gray area (the line demarcating the limits of the human right of freedom of religious belief are not easily defined). Certainly a lack of religious mobilization to protect citizens or refute destructive ideologies cannot be legally prosecuted. One participant at the USIP Religion and Genocide Prevention symposium believed this high standard of legal responsibility to protect and prevent should be set for religious actors and institutions. Others felt this was setting the bar too high. Nevertheless, other forms of accountability can be leveraged, including moral and theological imperative to propel religious communities to speak and act out when the state is ignoring or complicit in the emergence of mass violence. This cannot be forced upon religious communities, but might be organically nurtured as a normative imperative through engagement with religious leaders and communities in genocide education and concepts of prevention. Nurturing this responsibility to protect concept within religious traditions will also need to address the safety of those religious actors who speak out in condemnation of government and other religious leaders. Remarks at the Religion and the Prevention of Genocide and Mass Atrocity symposium. U.S. Institute of Peace. April 2008
negative impact of religion, particularly to understand how it is employed to incite violence, it is equally important to see the constructive power of religion in historical examples, and to nd example of how religions power might be strengthened in a empts to protect citizens against mass violence. In Germany, Serbia, and Rwanda, clergy and religious worship centers served as authentic places of refuge where inclusive and humanitarian theologies were articulated. In Germany, some clergy actively resisted the state from within, including Dietrich Boenhoeer and others in the Confessing Church. The pastor Andre Trocme in France led the village Le Chambon-sur-Lignon to resist the Nazis and Vichy government and protect some 5,000 Jews. These resistance pastors drew on religious principles to convince their followers, to strengthen their resolve, to address their fears, and to dene their movement as morally superior and necessary. In Rwanda, Muslim preachers urged their followers to protect Tutsis, and mosques opened their doors to those eeing violence.10 A threat to the state program, these voices of religious resistance were ignored or condemned by nationalist political and religious leaders, and were not supported suciently by the international community. Nonetheless, their eect in saving thousands and providing moral challenge to destructive genocidal narratives cannot be dismissed. Indeed, I would argue that they should be pointed to as sources for what could have been eective resistance. These faith-based initiatives had the potential to dismantle the ideological foundation on which the architects of genocide built their projects and to reclaim moral legitimacy for nonviolence. Moreover, by leading their congregations and using their institutional resources in acts of collective resistance, the clergy like those mentioned
10 At the USIP Religion and the Prevention of Genocide and Mass Atrocity symposium, Dr. Qamar-ul Huda remarked on how Rwandan imams drew on historical memory and Islamic principle to urge followers to provide refuge to those fleeing violence. In some cases the mosque was used, in other places Muslims made underground basements to protect themselves, Tutsis, and Hutus. Sermons reminded the congregation that Muhammad was a refugee and an orphan, and, though he was severely persecuted by various forces, he did not compromise his ethical principles and religious duties. Rwandan imams also reminded Muslims of their own recent history of displacement as religious minorities, when in the mid 1960s many were exiled and/or lost property and jobs. In this way, imams connected their contemporary experiences with the sacred memories. The imams, in other words, used their institution the mosque - and their authority as religious leaders to generate a response to the mass atrocity: their sermons recalled the past to make a constructive difference in the present.
above ensured greater impact of their actions and, arguably, a greater degree of protection than they could have acting alone. Despite these positive examples, our walk through history shows clearly that religion adds fuel to violent political programs. The conclusion for those seeking to prevent genocide and mass violence, then, is that when exclusivist religious narrative and incitement to violence is proliferating, these narratives must be challenged and engaged immediately in early response, pre-crisis engagement, and preventive diplomacy. Secular forms of peacemaking can make a dierence here. But where religion is being used to propel and justify violence, the most poignant challenge must come from alternative religious narrative that condemns that violence and promotes reconciliation. Secular counter-argument alone may be impotent in the face of religious rhetoric. That is to say, where religion is creating strong moral and faith-driven compulsions towards exclusion and violence, a direct challenge would need to be articulated in this same language,11 drawing from religious principles and seeking to elicit an equally strong moral and faithdriven compulsion toward peace and resistance. There are myriad religious resources that can create the fodder for this sort of engagement. These include faith-based organizations working on the front-lines of emerging conict, theologies and ethical frameworks that denounce inter-communal violence, and international religious bodies that have reach to local religious leadership and potential to pressure national governments. All of these are vital to a robust genocide prevention policy. To begin this process, regular engagement with religious leadership must become standard diplomatic practice. Foreign embassies and mission oces should be encouraged to build relationships with a representative group of multi-religious leaders in conict zones. This will allow for monitoring of destructive religious ideology, and through multi-religious engagement, diplomats can encourage and strengthen pluralism and inter-religious relationships and nd clergy partners for conict prevention. This should be supplemented
11 As Marc Gopin has said, you need to speak to people where they are at, with the language that holds meaning to them in their efforts to interpret their reality and formulate their response to it. For many, this is religion, rather than international law. Between Eden and Armageddon: The Future of World Religions, Violence, and Peacemaking (New York: Oxford University Press, 2000) 13-15
with Track II engagement with religious leadership, schools, and faith-based organizations to proactively promote religious tolerance, peace, and the study of historical instances of mass atrocity as a means to prevent future religiously-motivated conict. As religious communities become willing and able to account and take responsibility for how their community has legitimated and propelled historic instances of mass violence, they may serve as a prophetic model in pushing for the same sort of action from secular institutions.12 As I alluded earlier, religious diplomatic engagement can be helpful in a logistical sense for early warning and response. The institutional capacity and reach to implement early warning systems that can monitor into the far rural corners of the globe does not yet exist. However, there are pre-existent infrastructure and network systems that might be marshaled to ll this gap, including religious leadership and institutional capacity. Religious leaders are present throughout a country, and local leadership is o en very cognizant of political, economic, and social conditions in their local communities. They can relay information about local conditions through their institution to central authorities, who can in turn raise alert to international political institutions when conditions conducive to mass atrocity are arising. So, for example, a team of clergy in a rural se ing in a country, recognizing the warning signs of an alarming deteriorating situation, can send messages to their national leadership. These leaders might in turn convey that information to national political leaders or international diplomats with whom they have a preestablished relationship. What is needed to make this already existent early warning system eective is training for local clergy in monitoring and recognizing the warning signs of alarming political and social instability, trust-building with religious leadership who may be wary of manipulation by political actors, and partnership with religious institutions and organizations to create a program for relaying information about local conditions in a manner that can ensure swi and proper response.
12 The U.S. National Council of Churches and Genocide Watch instituted a model of this in November 2007 with a conference entitled Reflection and Responsibility: Seeking Christian Responses to Genocide. Participants discussed the complicity of Christian churches in numerous genocides, including in Rwanda, Germany, and in the ethnic cleansing of the native population of the United States. A model of self-examination, confession, and repentance led to a collective call to action to create a faith-based Alliance to Abolish Genocide. The intent of the group is to invite other religious traditions to participate.
A framework of religious ideas, institutions, and communities is useful to frame general principles and conclusions about the ways in which religious resources can be partners in genocide prevention. Religious ideas: religious language, ethics, and theology can serve as an ideological challenge to destructive political and religious ideology and nationalism. Theological synergy with international law, such as existent religious ethic that supports ideas of self-governance, responsibility to protect, and human rights, can nurture the creation of political and social norms that promote nonviolence and good governance, and heartfelt dedication to those norms. Drawing on historic religious values and teachings of nonviolence, compassion, just leadership, economic justice, and peace (ancient precedents to modern international law) may resonate more deeply and broaden support for these principles in deeply religious societies. Through programs that promote inter-religious reconciliation, religious narrative can surface that brings healing and provides constructive address to historical memory and grievance, stymieing mutual antagonisms. By strengthening religious articulations and ideologies that support nonviolence and high-order tolerance as a conict prevention technique, exclusive and violent theologies will nd less room to grow and dominate. Religious institutions: religion can provide an alternative existing structure through which to engage and respond to emerging crises, particularly when states are failing, are unwilling to respond to, or are themselves complicit in, emerging violence. Centers of worship and religious leaders are o en diusely located throughout countries, including in hard-to-reach rural areas, and might be engaged in information-gathering, monitoring, and early response. Religious networks can provide eective pre-existent infrastructure for distributing information, holding meetings, organizing mobilizations, etc.13 Transnational religious institutions can themselves serve as systems of monitoring, engagement, and lobbying, pu ing pressure not only on governments and international bodies to respond, but also their own local religious leadership to ensure they do not incite or actively propel violence.
13 Churches in the United States played this role during the Civil Rights movement, ensuring a broad national organization to the movement by providing administrative and human resources, ethical frameworks, communication links, and coordination. Churches served a similar role in South African apartheid resistance, as well as in the coordination of the Truth and Reconciliation process, in partnership with the political realm.
Religious communities and leaders: religious actors clearly have signicant inuence in many parts of the world to impact social and political actors, grassroots communities, institutions, and policies. Religious leaders can be powerful partners in conict prevention, monitoring, and responding to political and social dynamics leading to an outbreak of violence they have access to, the trust of, and inuence with a large swath of grassroots communities, and can mobilize these communities to put pressure on political structures from below. Religious elites may have access to political elites as well, and so can potentially be partners in (or avenues to) pu ing pressure on the political realm to abide by international law. Many around the world interpret and respond to political dynamics on religious terms. Understanding the interests and dynamics of religious communities through respectful engagement with them will allow interested organizations a channel by which to understand and inuence local dynamics to prevent the outbreak of mass atrocity. It is worth noting that religion is not a necessary ingredient for genocide or mass atrocity to take place. Mass atrocity has been waged under the banner of secular ideologies. Nor do I want to overstate the role of religion in either creating conict or peace. A conuence of economic, political, and social factors make genocide possible. Religion has, however, played a crucial role in many instances. In looking across the expanse of the globe today, it is clear that religion continues to play a salient role in ongoing or simmering conicts that have the potential to devolve into mass atrocity. To resolve or prevent these violent conicts and to prevent genocide requires a multi-lateral approach that engages many relevant social, political, and economic realms, of which the religious realm is only one important piece. Recommendations to International Governments and Organizations: 1. Given that religious dynamics have, in some cases of past genocide, been both symptoms of and contributors to the emerging outbreak of mass violence, it is important that governments and international bodies monitor dynamics within the religious sector as part of its eorts to prevent genocide and mass atrocity. Early warning systems should include monitoring of religious narrative in insecure environments and take note of when religious narrative is arising and proliferating that reects high-levels of existential
insecurity, justies and incites violence, and/or promotes exclusive ideologies of victim-hood that can rationalize collective aggressive action against another group. This could include a monitoring of religious preaching, religious education, religious media, and so forth. 2. Local religious leadership is o en cognizant of local social, political, and economic dynamics and is located in, or has access to, rural areas that diplomatic missions cannot easily access or monitor. Given this, explore means by which to engage religious leaders and institutions in eorts towards early warning. Support Track II eorts in partnership with NGOs and a representative multi-religious array of faith-based groups that oer training programs for clergy to strengthen their capacity to recognize and convey warnings of conditions conducive to the outbreak of mass violence. Invite the consultation of these actors through an appointed religious a ach in diplomatic missions. Build o successful current initiatives to engage religious leadership in development and democracy-building projects. 3. Include religion experts and liaisons to local religious leadership as part of any mission sent to investigate emerging mass atrocity, as part of diplomatic engagement, and as part of any humanitarian military intervention or peacekeeping mission. 4. Similarly, in order to ensure on-the-ground immediate response to the eruption of violence, support Track II initiatives to train local clergy in conict resolution and management so that they might help contain violence. 5. Experts in religious education should be tasked with promoting genocide study programs in religious universities, thereby equipping future religious leaders with the knowledge and capacity to understand how genocide manifests, the role of religion historically in this, and how they can assist with genocide prevention in their work. 6. Nurture pluralism through promoting active engagement between religions as a means to ensure religious identity does not become a source of division justifying communal violence. Promote education on world religions and their ethical frameworks that nurture non-violence, peace, and coexistence. Encourage interfaith people-topeople and clergy-to-clergy contact as a central component of diplomatic eorts at home and
abroad, targeting in particular (but not exclusively) those inuential religious leaders who help shape public opinion. Support eorts to promote healing and reconciliation between and among religious communities, particularly as a means to address historical acts of inter-communal violence. 7. As central gathering places, many eeing violence turn to churches, mosques, temples, and other religious sites seeking protection. Places of religious worship are protected under humanitarian law during warfare (Articles 9 and 16 of the additional protocol II of the Geneva Conventions relating to the protection of victims of noninternational armed conicts). Eorts should be strengthened to ensure that religious places of worship oer legitimate refuge for those eeing violence, and are not co-opted by armed actors. 8. Consolidate and strengthen ongoing inter-religious programs through the United Nations and other international organizations, including the Tripartite Forum on Interfaith Cooperation for Peace, as a means to help strengthen international norms of religious pluralism and high-order religious tolerance. Commission an international expert commi ee to develop a policy framework to strengthen pre-existent international norms and bodies related to multi-religious tolerance, freedom, and active engagement.
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The Systematic Violations of Human Rights in Latin America:
The need to consider the concepts of genocide and crimes against humanity from the Latin American margin
D F
1
The dual concepts of crimes against humanity and genocide emerged a er World War II in international law in response to public indignation sparked by the magnitude of the crimes commi ed by the Nazis. Such crimes were not looked upon with the same indignation when they had been commi ed throughout the centuries against colonized populations, nor during this century when commi ed against groups on the margins of Europe, such as the Armenians or the Greeks. Beyond the discussions revolving around their modes of classication and the peculiarities of the times in history when they emerged, these concepts became established as a solid ethical decision according to which the perpetrators of such extreme crimes would be pursued wherever they had taken refuge and would be convicted whenever they could be judged. Indeed, the gravity of the acts commi ed overrode the application of safeguards such as the principles of territoriality or statutes of limitations, which had been developed as a way of protecting citizens against state penal power and not as an excuse for the paroxysmal and devastating exercise of such state power. The development of these concepts was not, however, straightforward or linear. In addition to the dierentiated classication of the oences (which excluded political groups from the category of genocide), there was a resulting diculty in categorising the dierent cases of mass extermination perpetrated by states as genocide (given that they all essentially always include strong political components). This made it impossible for international regulations to impose specic sanctions anywhere on the planet until the end of the 20th century, with
the exception of the pursuit and punishment of some Nazi war criminals. The addition of various pressures such as the return of mass extermination of people in Europe with the dismemberment of Yugoslavia, the magnitude of the killings in Rwanda and massive media coverage they received and, even the ieth anniversary of the adoption of the Genocide Convention forced the member states to debate the ma er again. The 50th anniversary was marked by an emblematic media portrayal of its lack of eectiveness, but the result of the discussions was the creation of the International Criminal Court and consequentially the possibility that the concepts of genocide and crimes against humanity might exist not simply as abstract legal standards but also as provisions carrying the specic possibility of conviction. If, however, we analyze the ways in which these categories began to be used in the 21st century, the issues become cloaked in prejudice. Over the past sixty years, the sectors responsible for the perpetration of these crimes have not only generally remained unpunished despite the repeated commission of these acts, but have also systematically become capable of exploiting the legal denitions of international criminal law in order to punish entirely dierent practices: oences commi ed by non-state forces of a rebellious nature. Even the most interesting legal denition the concept of genocide never seems to apply to any situation (Rwanda has been the only exception in more than half a century as far as genocide is concerned). The result is that all oences fall under the concept of crimes against humanity. This legal denition is becoming increasingly broad, and has come to include an alarming array of practices. It has merged with the new legal denition of terrorism to form a category of atrocity crimes, an even more ambiguous and open concept than those dened previously. A continuation of this tendency would not only mean that the mass exterminations of
Daniel Feierstein holds a PhD in Social Sciences from the University of Buenos Aires. He is a researcher at CONICET (National Scientific and Technical Research Council) and a Professor at the University of Buenos Aires and the National University of Tres de Febrero, where he directs the Centre of Genocide Studies. He is Second Vice-President of the International Association of Genocide Scholars and was a United Nations independent expert for the drafting of the National Plan of Human Rights and the National Plan against Discrimination.
populations commi ed by modern states would continue to go unpunished, but that criminal safeguards of non-state actors would have been eliminated. These safeguards, legal denitions of international law, are also occasionally violated for state perpetrators (who have only very rarely been punished) but now rebellious civilian populations can be persecuted by their governments and lose the safeguards that historically protected them against unjust or illegal action. Latin America has had two emblematic and distinctive experiences with regard to the processes of the systematic extermination of populations. On the one hand, we need to take into consideration that the states of Latin America, as well as the majority of states worldwide, have followed a model of forging an identity based on exclusion. This exclusion is derived from the rejection of those groups that did not participate in the agreements that led to the emergence of the state. This is how numerous populations generally native communities, but also, in some cases, other sectors such as the Afro-descendants or the regional leaderships led by a caudillo that were excluded from the state agreement were systematically persecuted and exterminated during the second half of the 19th century. Although the dierent cases had their peculiarities, the system for constituting a state was similar, based on the criteria of suppression of these groups and their exclusion from the criteria for the conguration of the identity of these new states. On the other hand, what became known as the Doctrine of National Security swept across the continent, giving rise to a second period of collective terror during which three distinct, albeit interrelated, types of terror were distinguished: civil war, state terrorism and genocide. The object of this paper is to outline these events briey, to analyse their consequences and the outstanding debts of the states and international law in order to explore the possibility of identifying the legal, political and traumatic consequences of these processes. It will also analyse the risks of embracing an ethnocentric and broad view of the concepts of international criminal law. Constituent genocide In other works, I have called the types of extermination of populations with the aim of creating a new territorial unit constituent genocide.2 Far
2 Daniel Feierstein; Genocidio como prctica social, FCE, Buenos Aires, 2007.
from being an exceptional phenomenon, constituent genocide has been the paradigmatic mode used to build modern states, based on the rejection, harassment, isolation and extermination of those population or identity groups that were not considered to be a legitimate part of the emerging state. Numerous groups have fallen victim to this form of exclusion of their identity or extermination of their members, but the way in which various native communities suered the plundering of their land, the denial of their world views and various persecution and extermination campaigns stands out in Latin America. Although these campaigns occurred predominantly during the 19th century, they still continued to have minor ramications during the 20th century, particularly in the more isolated regions, such as the densely wooded or forested areas of the Chaco and the Amazon. These crimes have remained unpunished, and with few exceptions, the perpetrators are no longer alive, but there is still a present need to nd a way to identify the political responsibilities and to provide indemnication so as to come to terms with this traumatising experience of destruction. In this regard, it is striking that, in contrast to what occurred in other geographic contexts such as the Balkan States, Spain or the Pacic Islands, the descendants of the oppressed people have generally not demanded their own territory. Indeed, this would generate untenable and extremely dangerous situations due to the instability that any a empt to redene the regions territorial limits would generate. However, there is still no resolution with regard to the character of our states, or of the need to recognise the multicultural reality within their constitutional systems as well as in everyday life. There is no recognition of the obligation to provide a satisfactory solution to the economic needs of the native communities with the guarantee and/or restoration of ownership of their ancestral land, at least in terms of their areas of production and sacred places, and in particular to the conviction by the state of those responsible for the campaigns of oppression and extermination, who are still revered as national heroes in some states. This perpetuates the suering of the victims and their descendants and prevents them from coming to terms with the collective trauma caused by extermination, expropriation and destruction.
The models of social reorganisation In the middle of the 20th century, a second type of violence evolved in all the states of the region. Following the reformulation of the notions of security derived from the Cold War as well as the French teachings on counterinsurgency in relation to the ways of managing social conict, a wave of terror swept through Latin America, which was, in this case, directed by its own armed forces, security forces and related sectors against the population as a whole. This new eruption of violence, based on what became known as the Doctrine of National Security, took the form of three distinct yet o en intersecting and overlapping modes: civil war, state terrorism and genocide. Civil wars broke out with particular intensity in El Salvador, Nicaragua, Peru and Colombia, along with certain other incidents that are more difcult to classify as war, as in the case of Guatemala. However, in the context of some of these conicts, a form of systematic extermination of populations, which can also be characterised as genocide, was developed at the same time by the state apparatus. This practice was particularly violent in the cases of systematic destruction by the Patriotic Union in Colombia, of the assassination of citizens in El Salvador during the 1980s or of the systematic assassination of citizens and indigenous communities in Guatemala. State terrorism swept through all of the states in the region, establishing a systematic structure of repression based on clandestine abduction of persons and their subjection to dierent types of torture. Security forces and armed forces establishments were converted into concentration camps, and non-military establishments such as schools, hospitals, football stadiums and private buildings were o en equipped for similar purposes. This was the prototypical model implemented in countries including Uruguay, Paraguay, Ecuador, Panama, Brazil and the Dominican Republic. In some of the states of the region, however, the implementation of repressive terror by the state also involved the systematic extermination of civilian populations, which is most clearly seen in the cases of Guatemala, Argentina, Chile and Haiti. In Bolivia, the experience is dicult to classify as any one of the phenomenons several dimensions (whether the states systematic approach was based on kidnapping and torture or if it also included the extermination of the population).
In the implementation of genocidal social practices in some of these states, there was no restraint in resorting to virtually any of the forms of violence and destruction employed in previous historical contexts, including a wide range of types of torture, the razing of entire villages (in the case of Guatemala), the disappearance of dead bodies, the kidnapping and appropriation of the victims children (an especially cruel practice in Argentina) and the destruction of the social fabric. In contrast to the experience of constituent genocide, in the case of state terror or its reorganised form of genocide, the criminals responsible are still alive but for the most part have escaped prosecution, other than in a few cases. It is worth highlighting the Argentine experience as an example of those who faced accountability. The transition from military government to civilian government (even though acts of terror o en also occurred under civilian governments, as in Honduras) generally included a certain level of impunity from prosecution for these types of violation of human rights. This was based on the logic of what became known as the possibilities of transitional justice. Transitional justice sought to reconcile the moral obligations (the need to judge and secure convictions for every crime commi ed) and the pragmatic situations, since those responsible for said violations still held sucient power to jeopardise the new regimes. Of the transitional experiences, it is worth mentioning the Argentine experience under the Alfonsin government, which was initially based on determining levels of responsibility and deciding whether to prosecute on that basis, as well as the initial diversion of such cases into the military justice system. However, the various experiences have demonstrated some general shortcomings in the transitional justice model. In particular, the guarantee of immunity from prosecution however limited it may be for the criminals responsible for these crimes renders dicult the handling of the other levels of political and moral responsibility by society. It also damages the entire social fabric by undermining the legitimacy of the punishment of minor oences since the perpetration of far more grievous crimes remains publicly unpunished. The trauma produced by the terror in a society may be worked through in part by dealing with the responsibilities that are not necessarily subject to litigation. The traumatic consequences are many: the judges who failed to carry out their
duty as guarantors of the lives of the people, the academic sta who failed to maintain their duty as educators to identify and denounce the gravity of the moment, as well as the citizens who failed to intervene when they witnessed a kidnapping. Unless there is an opportunity to come to terms with the consequences of these passive acts of terror, it becomes dicult to imagine rebuilding a proper society. At the same time, however, the dierent strata of society are pardoned on the basis of the argument that the criminals responsible for the actions those who commi ed torture, murder, rape, abduction and appropriation of minors have yet to be brought to justice for their crimes. With regard to Nazism, Karl Jaspers considered that a society could not overcome the consequences of terror until criminal responsibilities had been se led through punishment, political responsibilities through exclusion and moral obligations through repentance. It is a challenge to Latin American societies to tackle these three levels of responsibility. The state is obliged to address the rst two levels the punishment of the responsible criminals and the exclusion of the responsible politicians from the public apparatus leaving the community to deal with moral obligations. International law and its challenges The best approach to recovery for a society would be for the society itself to begin to se le and work through the consequences of the atrocities. International law should nonetheless be recognised as having taken steps to cooperate in this eort. It is worth noting some problematic characteristics of the current legal constructs, in particular when they are examined from what Ral Zaaroni has come to call the Latin American margin. The legal denition of genocide has its origins in international law in the Genocide Convention, which was approved in 1948. A er more than two years of debate, legislators reached consensus on a legal denition. They succeeded in persuading some reluctant states to approve the legal denition initially proposed, which reconciled the crime of genocide (as the denial of the right of existence of entire human groups) with the legal denition of homicide (as the denial of the right to live of individual human beings.)3
It is worth pausing and considering some of the similarities and dierences between the concepts of genocide and crimes against humanity that were conceived at that time by international law and then included in the Statute of the International Criminal Court. Both concepts lead to the same results from the point of view of their legal consequences, in that they have the legal capacity to overcome the safeguards of statutes of limitations, territoriality and defences of obedience, and in the sense that they are violations of human existence itself. They do not lose their eect over time, cannot be le in the hands of the national courts and cannot be excused on the basis that the perpetrators were following orders or complying with the law that was applicable at that time. In analysing the dierences between the two concepts, however, we notice that the concept of crimes against humanity refers to a series of oences commi ed against the members of civilian society. The explanatory causal logic of this legal denition postulates that the perpetrator made use of assassination, torture, rape and other crimes commi ed against individuals as an instrument for a distinct purpose (such as winning a military conict or seizing state power). The perpetrator commi ed these crimes against individuals, who, as they belong to the civilian population, were not necessarily involved in the conict. Neither were these civilians them an objective of the conict. This is why the legal denition of crimes against humanity does not require the intent of destruction of a group, as long as the violations commi ed are commi ed indiscriminately. It is evident that every act of genocide also implies the commission of crimes against humanity, but the converse is not the case. Indeed, genocide implies another mode of causal interpretation by which the objective of the act is not an indiscriminate a ack on the civilian population but precisely a discriminate a ack against certain groups within the population with the aim of achieving the total destruction of these groups and/or the partial destruction (transformation, reorganisation) of this group, in order to eliminate part of the group. The consequences as regards the possibilities of interpretation and analysis of the eects of genocide are, in this respect, qualitatively dierent from what the consequences of the interpretation of the crimes against humanity may be. The paradigmatic case of a process of genocide, namely the genocide that occurred under the Nazi regime, is an excellent example for analysing the modes in which the process can be
In this respect, cf. all the preparatory documents of the Convention, in particular Resolution 96 (I)
appropriated by or distanced by the very group that is experiencing it. For example, if extermination is only considered on the basis of total destruction of, in this case, the Jewish or Roma communities living on German, Polish or Lithuanian territory, the phenomenon would appear to have had no eect on Germans, Poles or Lithuanians, beyond their greater or lesser solidarity with the victims, as they would not understand that the whole German, Polish or Lithuanian group could have been victimized losing an important part of their own. It is only in alienating the German, Polish or Lithuanian condition from the Jews and the Roma that it is possible to consider them as they were considered by the perpetrators, namely, as human beings distanced from the national identity group, as completely dierent entities. If, on the other hand, we also regard the Nazi genocide as the partial destruction of the national German, Polish or Lithuanian identity group, we re-a ribute to the victims their true characteristics and confront the Nazi aims that postulated the need for a Reich judenrein, which means, an empire free of Jews. The aim of Nazism was not simply to exterminate certain groups (ethnic, national and political groups, among others). This extermination was also intended to transform society itself as a result of the eects of the elimination of these groups on those who remained a erwards. The disappearance of internationalism and cosmopolitism as a constituent part of German identity was one of the most lasting aspects of the Nazi genocide, and the extermination of the Jews and Gypsies along with other politically selected groups and not based on ethnic selectivity played a central role in this disappearance. In brief, the crucial dierence in the way that the two concepts of crimes against humanity or genocide are used lies in the fact that the former only renders visible and comprehensible the precise crimes commi ed by the perpetrator (assassination, torture, rape, etc.) while the concept of genocide re-establishes the aim of the action as whole or partial destruction of a population. As it was directed at the population as a whole, this allows society as a whole to question itself about the eects that the extermination produced on societys own practices. This eliminates a distancing from what initially appeared to be the suering of the others (those who were assassinated, who disappeared, who survived, or friends and relatives).
The concept of genocide also re-establishes the signicance of the victims, by removing them from the role of abstract innocence into which the concept of crimes against humanity appears to cast them (as a civilian population not discriminated against) and by understanding them as a group discriminated against by the perpetrators, chosen not at random but deliberately so that their disappearance would produce a series of changes in the national group, including the partial destruction of the group discriminated against and the imposition of the identity of the oppressor, as understood by Lemkin. Finally, the understanding of extermination as genocide, the planning of the partial destruction of a national group, also allows a broadening of the scope of involvement in the planning and execution of the process. Indeed, it compels us to pose the question about who were the ultimate beneciaries, not only of the disappearance of certain groups, but fundamentally of the change generated in the national group by the processes of extermination. Classication of genocide observed from the Latin American margin For the Latin American region, however, this restrictive way of dening the concept of genocide which applies only to some groups and leaves other groups outside of the realm of protection has generated two interrelated problems: a) On the one hand, it damages the mode of classication of crimes under national law (of Latin origin) which by overly respecting the principle of equality before the law tends to qualify the crimes as practices, without ever dening them on the basis of the identity of the victim or the perpetrators of the crimes. The elements of identity are included only as aggravating and extenuating circumstances, and always in such a way to not base these characteristics of identity in elements that are not reversible (age) or that are directly related to the situation (kinship). b) On the other hand, the events experienced under the Doctrine of National Security have had, in all cases, a clear political motivation (which could truly also be demonstrated, in all modern genocides, from Nazism to the current events in Sudan). According to the interpretation of some international jurists, this would exclude them from being subsumed under the legal denition of genocide. The International Criminal Court The International Criminal Court (ICC) was
established at the start of the 21st century with the adoption of the Rome Statute. Its fundamental objective was to create an institution that could undertake the prosecution of crimes under international criminal law. However, the Courts performance since its establishment including its basic method of intervention creates more concern than reassurance as regards its function as a safeguard against state violation of human rights. This is particularly true when considering the Court from the more remote regions of the world. It is no coincidence that these are precisely the areas under its jurisdiction that have been chosen by the Court for the exercise of a harshness, which is inconsistent with its actions in the northern hemisphere. On the one hand, the ICC can only operate in cases in which the perpetrators and/or the territory involved belong to states that have recognised its jurisdiction. Both the United States and China, are powerful states that have been accused of commi ing international crimes against humanity but which have not yet recognised the ICCs jurisdiction. On the other hand, its mode of intervention until now has been based on the examination of cases referred to the Court by states that recognise it or, in one case, initiated by the United Nations Security Council. The autonomy of the Court to deal with the violations commi ed by the states themselves consequently lacks the formal basis that existed under the agreements that applied before the Court came into existence. This has specically resulted in the fact that all the ICCs proceedings so far have concentrated on oences commi ed on African territory and, in three of the four countries where it has acted, the cases have been brought against members of non-state organisations accused by the state itself: in the Democratic Republic of Congo, Uganda and the Central African Republic. What is surprising about these proceedings beyond the gravity of the crimes reported, which is not relevant to the need for international criminal law is that while they involve factions that are being a acked and denounced by their own states, it is not clear in what way an ICC intervention could be a contribution. Furthermore, ICC intervention breaches the principle that international law is used against states that commit crimes, rather than
non-state groups that could be prosecuted under national law.4 These ICC interventions contrast with its lack of intervention in those cases of state violation of human rights that have been reported, including the cases of Colombia, Israel or China, to name a few, as well as the case of the invasion forces from the United States and the United Kingdom in Iraq. In some cases, the ICCs argument for its lack of intervention lies in the fact that those accused (the United States, Israel or China) or the countries where the violations occur (Israel, China, Iraq, Afghanistan) are not yet ICC member states. In the case of Colombia, the legal situation is even more serious, since the argument is based on the fact that said state is making sucient efforts to confront these violations, without explaining how it is possible that, despite these eorts, the prosecution of those responsible for systematic extermination of the population in Colombia has not even been initiated and massacres of leaders of the opposition and indigenous groups are still occurring to this day.5 Finally, the only case in which the ICC has decided to confront a state government also relates to the African continent in Sudan, due to the events that occurred in the Darfur region. This is the only state that all the members of the United Nations Security Council have decided to confront. This raises the question beyond the importance of the case in terms of the number of victims involved and the gravity of the processes of displacement of populations, burning of villages and extermination of ethnic and political groups of what the ICCs contribution would be in a case in which, at any rate, there appears to be a certain agreement among the dominating powers to denounce and, perhaps, a ack. On the other hand, the warrant of arrest issued by the ICC for the president of Sudan, Omar al-Bashir, does not appear to have made any
4 With regards to the state character of the perpetrators of genocide and crimes against humanity, Cf. in particular the work by Horacio Ravenna, Curso virtual de Antropologa Sociocultural Latinoamericana, mdulo n 5 Derechos Humanos, Clase 1, Fundacin Unida For current work on the situation in Colombia, Cf. Andrei Gmez, Bloques perpetradores y mentalidades genocidas: el caso de la destruccin de la Unin Patritica en Colombia, in the Revista de Estudios sobre Genocidio, Volume 2, CEG-EDUNTREF, Buenos Aires, 2008, p. 42-55 or Marcelo Ferreira, Genocidio reorganizador en Colombia. A propsito de una sentencia del Tribunal Permanente de los Pueblos, in Daniel Feierstein (ed.); Terrorismo de Estado y Genocidio en Amrica Latina, Prometeo, Buenos Aires, 2009
positive contribution to the eorts to prevent bloodshed in Sudan. It has instead been used as a pretext by the Sudanese government for expelling from the country the international observers and organisations providing aid to victims, but has produced no legal results whatsoever so far, and has caused deterioration in the humanitarian situation. This again raises the question of who this method of ICC intervention is supposed to benet or how it helps in moving toward the possibility of imposing sanctions on the perpetrators of the violations of human rights. The peculiarity of these perpetrators, since the aforementioned concepts emerged, lies in the control of the state forces they possess. The anti-terrorism laws At the same time that these issues were being raised, the 21st century also witnessed and at an accelerating pace since the a acks suered by the United States on 11 September 2001 an a empt to equate the oences of crimes against humanity and genocide (commi ed by the state) with the oence of terrorism (generally commi ed by private individuals). This oensive quickly achieved its eects with the adoption in 2002 of the Inter-American Convention against Terrorism and the subsequent approval in various countries of anti-terrorism laws. The speed with which these laws have been incorporated in criminal codes contrasts markedly with the slow and delayed incorporation of the offence of genocide. Although these laws have not yet succeeded in toppling the criminal safeguards statutes of limitation, territoriality, and defences of obedience they have encouraged open classications that have led to numerous instances of simple anti-establishment behaviour being categorised as oences. Indeed, the classication of terrorism is not limited to the commission of acts that are intended to harm civilian victims, but also includes, for example, forcing a government or an international organisation to take or refrain from taking action. By including the propagation of political hatred as a criminal oence, in contrast to the classication of the oence of genocide, it is le to the judge to hold an innite number of acts that are simply critical of the government or anti-establishment as falling under this open classication of the legal denition of terrorism. Criminal law in the 21th century: towards the possibility of resistance Those who are seeking to reclaim the innovative and critical character of the legal instruments
created as a result of Nazism in order to guarantee the judgement of those responsible for the systematic violations of human rights struggle with not wanting to relinquish the citizens legal safeguards, regardless of the oences they may have commi ed. This situation appears even more disturbing when it is observed from the margins of the planet where genocide never qualies for prosecution, but, at the same time another growing series of criminal actions which do not involve genocide and, in many cases, do not involve crimes that threaten humanity either are being prosecuted using the new criminal instruments of international law. In this respect, support for two principles that have emerged from international law itself may imply a mode of resistance to these increasingly hegemonic tendencies, as well as a contribution from the Latin American margin. The former involves the support for the obligatory nature of the state character of every oence understood as a violation of human rights. The motive for accepting the removal of criminal safeguards such as statutes of limitations, territoriality and defences of obedience was based historically on the state character of the perpetrator. The main legal function of every state and the motive that justies subordination to its sovereignty is to ensure the protection and safeguard of the life and integrity of all its citizens. When the state apparatus carries out actions that aect the life and integrity of the people it is supposed to protect, its victims are completely defenceless. Indeed, they cannot appeal to any institution to guarantee their protection and it is precisely the guarantor who is violating the rights. The gravity of this situation is what justies the removal of the perpetrators criminal safeguards. Any other perpetrator however serious the crime can be pursued in due time and form by the criminal apparatus of any state. There is no reason, in any of these cases, why an international tribunal should intervene nor why the criminal safeguards of the accused should be removed. It is becoming absolutely necessary to defend this principle because the support for the concept of human rights, in a broad sense, is increasingly being used to justify the violation of any territorial sovereignty or the loss of the rights of the numerous sectors of the population, especially in peripheral countries. In the second place, the legal denition of genocide contains within its denition a fundamental restrictive element that is linked to the intent of the destruction of a group, in the context of the commission of acts of mass extermination of
populations. Beyond the objectionable exclusion of the political groups from the denition and the need, as far as possible, to ght for the modication of this criminal oence the understanding of all group extermination as the partial destruction of a national group provides a technical solution to the issue through a category of oence that exists in the Genocide Convention and in the Rome Statute, thus preserving a narrowly constructed oence that is less liable to manipulation. In contrast, the fact that the concept of crimes against humanity is permanently open to an interpretation, covering non-state actions and its increasing use in relation to terrorist phenomena, broadens this legal denition at the risk of transforming it into an open oence, which could include civil non-state and anti-establishment actions. The risk is even greater when an a empt is made to replace crimes against humanity with an even broader legal denition such as atrocity crimes, which could include any oence capable of aecting the sensitivity of the creators of the new legal description. According to the models that are beginning to circulate within academic and international policy spheres, a new description may lead to the total abrogation of the criminal safeguards. Based on this second consideration, it is therefore essential that the characteristic nature of the category of genocide as deliberate mass extermination of a population group should apply. Any a empt to create new legal denitions in international criminal law must be resisted, as its expansion only contributes to the comparison of the qualitatively distinct (state as opposed to non-state) nature and the violation of the criminal safeguards that were put in place over the course of centuries to protect individuals from the arbitrariness of state persecution. The hegemonic tendencies of international law in the cases of genocide can be seen in judgements relating to ex-Yugoslavia, Cambodia or Argentina avoiding characterising oences as genocide by characterising all cases as crimes against humanity - a way to place mass extermination by a state in the same category as acts of insurgent movements in Congo, Uganda or Colombia. It is our responsibility to ght for the opposite tendency; we must ensure that the authorities classify genocides as genocides and distinguish them from the actions of non-state and non-mass movements. Precisely because they are neither state nor mass movements these need to be considered according to the preexisting criminal codes, giving due respect to the
criminal safeguards of those responsible (as miserable as the perpetrators and the oences commi ed may be, this has never been a reason to change the rights of the defendants). The risk of not considering these problems will not only aect judges and a orneys, but could ultimately contribute to the destruction of the penal system as we knew it in the 20th century, and to the re-establishment of discretion and arbitrariness in the practice of power. And this would be done in the name of prevention of violations of human rights and used for allegedly defending the right to prevent such violations. This insight is a fundamental contribution that must and can be made from the Latin American margin, where the peculiarity of the phenomena of the mass state violence suered by the victims can illuminate the debate with thought-provoking and encouraging clarity.
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Genocide Prevention and Cambodian Civil Society
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Over 30 years ago, the Khmer Rouge government fell a er an invasion from Vietnamese troops from the east. The Khmer Rouge retreated to the jungles leaving behind a sha ered country and a sha ered people. Under the Khmer Rouge regime, 1.7 million Cambodians died2 of execution, starvation and disease. Educated Cambodians, members of the ancient regime, ethnic minorities, monks, and artists were especially targeted.3 With the industry, infrastructure and economy destroyed, Cambodia had li le to build itself on. Cambodian survivors walked from labor camps to their home villages eking out an existence on the land. As violent clashes between the Vietnamese army and remnants of the Khmer Rouge ensued, hundreds of thousands of Cambodians ed to the refugee camps in Thailand looking for shelter, food, medicine, safety and a chance at a new start. Within months of entering the camps, Cambodian survivors were asked to tell their stories. Journalists, researchers and mental health practitioners for the rst time in four years were able to obtain rsthand accounts of what ensued under the government which called itself Democratic Kampuchea.4 Cambodia had been economically and diplomatically isolated from 1975 to 1979, eectively a hermit country. Rumors of genocide or mass
1 Socheata Poeuv, CEO of Khmer Legacies, was selected as a 2007 Echoing Green fellow and is a Visiting Fellow at the Yale University Genocide Studies Program. Socheata Poeuv made her filmmaking debut with the award-winning film, New Year Baby, which was broadcasted nationally on Independent Lens in 2008. She co-founded Broken English Productions in New York City and has been on staff at NBC News Dateline, ABC News World News Tonight and NBC News TODAY. Ben Kiernan, Bringing the Khmer Rouge to Justice, Human Rights Review 1, 3, April-June 2000, p.92-108 Damien de Walque, Selective Mortality During the Khmer Rouge Period in Cambodia, Population and Development Review, 31.2(2005): 359, Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge (New Haven: Yale University Press, 1996): 456-457 Linda Mason and Roger Brown, Rice, Rivalry and Politics (Notre Dame: University of Notre Dame Press, 1983): 60, Elizabeth Becker, When the War was Over: Cambodia and the Khmer Rouge Revolution (New York: Public Affairs, 1998): 375-377
killings circulated, but until this point no one could conrm them.5 Cambodian survivors were pressed to tell their story over and over again.6 Following this initial push to arm their stories, there has been no large scale eort to ask Cambodians to understand and reexamine their survival experience until today. Over the past few years, new eorts have been initiated, in part with energy from the next generation of Cambodians, and in part due to the Extraordinary Chambers of the Courts of Cambodia (ECCC), a UN supported tribunal to prosecute senior members of the Khmer Rouge. These opportunities give Cambodians some collective outlet to remember, heal, and to share their experience with the outside world. These eorts at transitional justice are crucial for the progress of the government and society in Cambodia. Additionally, we cannot underestimate the role that Cambodians and Cambodian civil society can play in preventing genocide. Now that Cambodians seem ready to examine their past again, not only are there eorts to be taken to prevent genocide from recurring in Cambodia, but also contributions to be made to efforts to prevent genocide all around the world. A number of genocides have occurred since the creation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, a fact that reveals the impotence of this law to impact history. Governments and the international community need to enforce domestic and international laws
5 William Adams, Reporting on Cambodia, Journal of Communication 36.1(2006): 189, William C. Adams and Michael Joblove, The Unnewsworthy Holocaust: TV News and Terror in Cambodia, Television Coverage of International Affairs, Norwood, New Jersey, 1982, Brent Baker, Flashback: The Unnewsworthy Holocaust: TV News and Terror in Cambodia, NewsBusters, Aug. 23 2007, Jan. 12 2010 http://newsbusters.org/blogs/brent-baker/2007/08/23/flashback-unnewsworthy-holocaust-tv-news-terror-cambodia Segment 3: Cambodia: A Ghastly Stillness,,Vanderbilt Television News Archive, NBC, Evening News, Friday Jun 02, 1978, Television http://tvnews.vanderbilt.edu/program. pl?ID=499362 Conversation with Mary Scully R.N. on 12/06/09. She was a nurse in the Thai border camps in the early 1980s. Scully now works with Cambodian refugees in CT at Khmer Health Advocates
2 3
previously established to prevent genocide. By relying on legal parameters to trigger action on the part of the international community, we can avoid the ckleness of political will and expediency. This, of course, was the unfullled intention of the 1948 Convention. Although nothing can replace international sanctions designed to prevent genocide, civil society has a role to play in precluding such mass atrocities through a commitment to education and memorialization of genocide. The goal of these eorts is to shape a society conscious of the human cost of genocide, which will also be prepared to withdraw support from a government that enacts pre-genocidal measures. The most necessary ingredient to create such a society is entirely emotional. Feelings of empathy, compassion and sadness7 are the ultimate trigger to action in individuals and eective extensions of aid. These feelings are most potently communicated through educational tools, art and culture, as opposed to academic articles and history books. They also depend upon the voices of Cambodian survivors for the benet of Cambodia and the world. To date, Cambodians have had li le opportunity to remember their genocide. The silence which surrounds this part of history, and which has resulted in a younger generation being mostly ignorant about the events of the Cambodian genocide, does have cultural and religious roots.8 Obviously humans have a natural resistance to reliving traumatic events, yet there is also a political reason to not remember. Conversations with many Cambodians both in America and Cambodia convey a fear of speaking out even about their own personal history thirty years a er the fall of the Khmer Rouge. The government in Cambodia continues to have former Khmer Rouge members within their ranks and anxiety of political reprisals continues. In this paper, I would like to make recommendations to the Cambodian civil society about genocide prevention measures which can be undertaken. Many promising eorts have already been made
7 Coke, J. S., Batson, C. D., & McDavis, K. (1978). Empathic mediation of helping: A two-stage model. Journal of Personality and Social Psychology, 36, 752-766, Eisenberg, N., & Miller, P. (1987), Empathy and prosocial behavior, Psychological Bulletin, 101, 91-119 Seth Mydans, Pain of Khmer Rouge Era Lost on Cambodian Youth, New York Times, April 7 2009 (Trapaeng Sva, Cambodia), Jan. 13 2009 http://www.nytimes.com/2009/04/08/ world/asia/08cambo.html
by over 2000 NGOs operating in Cambodia today.9 What is missing is a commitment on the part of the Cambodian government to seriously implement genocide prevention measures in order to ensure that genocide does not occur in Cambodia again, and to make a Cambodian contribution to global anti-genocide eorts. HISTORICAL BACKGROUND OF THE KHMER ROUGE GENOCIDE During the Vietnam War, the U.S. government began a secret bombing campaign to stop Vietnamese Communists from smuggling weapons through Cambodia. Between 1969 and 1973, U.S. aircra dropped as many bombs, measured by tonnage, on Cambodia as has ever been dropped on a country, including the nuclear bombs dropped on Japan during WWII.10 With hundreds of thousands of Cambodians dead or wounded from the bombing, the infrastructure destabilized, and the ousting of a beloved monarch by an unpopular government, a Communist group called the Khmer Rouge began to gain power. In 1975, led by Pol Pot, the Khmer Rouge overthrew the Cambodian government. In order to achieve their dream of an agrarian utopia, the Khmer Rouge leaders immediately evacuated all cities and relocated everyone to the countryside. From 1975-1979, approximately 1.7 million people, one quarter of the population, died from execution, starvation and disease. In an eort to create a classless society, the intelligentsia and bourgeois class of Cambodia were decimated. It is reported that only nine doctors and ve lawyers were le in the country a er the Khmer Rouge.11 Governance Situation in Cambodia Today The current government, though nominally a democracy, is ruled by Prime Minister Hun Sen, the Strongman of Cambodia.12 He is known for squashing any political opposition, suppressing free speech and controlling the judiciary. Hun Sen
Craig Guthrie, The End of an NGO Era in Cambodia, Asia Times, Nov. 14 2008 (Phnom Penh), Jan. 18 2010 http://www. atimes.com/atimes/Southeast_Asia/JK14Ae02.html 10 Taylor Owen and Ben Kiernan. Bombs Over Cambodia. The Walrus Oct. 2006: 62-69 11 Theresa Klosterman, The Feasibility and Propriety of a Truth Commission in Cambodia: Too Little-Too Late, Arizona Journal of International and Comparative Law 15 (1998): 862 12 Harish C. Mehta and Julie B. Mehta, HUN SEN: Strongman of Cambodia (Singapore: Graham Brash, 1999)
came to power in 1993,13 in an election following a period in which the UN wrested power from the occupying Vietnamese forces. He has held power since then, and even staged a coup in 1997 to reclaim power when the 1993 election results forced him to share power with Norodom Ranariddh, the leader of the opposition party, FUNCINPEC.14 In the latest Freedom House survey rating, Cambodia ranked 6 for political rights and 5 for civil liberties (1 being most free and 7 being the least free).15 In the Transparency Internationals 2006 Corruption Perceptions Index, Cambodia was ranked 151 out of 163 countries.16 Many members of Hun Sens government are former Khmer Rouge ocials, including Heng Samrin, the current President of the National Assembly of Cambodia, and Chea Sim, the President of the Cambodian Senate.17 Hun Sen himself is a former Khmer Rouge commander who defected to the Vietnamese side in 1977 when, for fear of further and more devastating purges, he withdrew his forces and took ve of his ocers into Vietnam.18 In 1996, Hun Sen pardoned Ieng Sary, former Deputy Prime Minister and Foreign Minister of the Democratic Kampuchea government, saying it was time to dig a hole and bury the past.19 Although the Cambodian government engaged in negotiations with the UN to create a tribunal as early as
13 Julio A. Jeldres, Cambodias Fading Hopes, Journal of Democracy 7.1 (1996): 148-157 14 Sorpong Peou, Hun Sens Pre-emptive Coup: Causes and Consequences, Southeast Asian Affairs (1998): 86-103 15 Country Report: Cambodia (2008), Freedom House, 12 Jan. 2010 http://www.freedomhouse.org/template.cfm?page=22 &year=2008&country=7365 16 Corruption Percentage Index 2006, Transparency International, 12 Jan. 2010 http://www.transparency.org/policy_research/surveys_indices/cpi/2006 17 Organization: National Assembly, Royal Government of Cambodia, 12 Jan. 2010 http://www.cambodia.gov.kh/unisql1/egov/english/organ.assembly.html, Stephen Kurczy. Cambodia, Vietnam Reaffirm their Vows, Asia Times, Apr. 23, 2009 (Phnom Penh), 12 Jan. 2010 http://www.atimes.com/ atimes/Southeast_Asia/KD23Ae01.html 18 Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge (New Haven: Yale University Press, 1996): 370-1 19 Ieng Sarys Brief Biography, Khmer Rouge Trial Web Portal, Dec. 07, 2005, 12 Jan. 2010 http://www.krtrial.info/showarticle.php?language=english&action=showarticle&art_ id=7&needback=1, Top Khmer Rouge Diplomat in Court, BBC News, Jun. 30, 2008 (UK), 12 Jan. 2010 http://news.bbc. co.uk/2/hi/asia-pacific/7480629.stm, Seth Mydans, Cambodian Leader Resists Punishing Top Khmer Rouge, The New York Times, Dec. 29, 1998 (Ta Khmao, Cambodia), Jan. 12 2010 http://www.nytimes.com/1998/12/29/world/cambodian-leader-resists-punishing-top-khmer-rouge.html
1997, in 1998 former Khmer Rouge leaders, Khieu Samphan and Nuon Chea, defected to Cambodian authorities and into Hun Sens arms. The public perception at the time was that Hun Sen was granting some kind of amnesty to them, a claim that he would later deny.20 A Genocide Happened Here It was in fact the Vietnamese who, upon invading Cambodia and nding evidence of mass killing, including the S-21 Tuol Sleng prison center, rst drew parallels between the Khmer Rouge and the Nazi atrocities. Undeniably using S-21 as a propaganda tool, they were the rst to make Tuol Sleng a holocaust museum.21 However, their eorts received li le recognition from the international community, which was largely united against the Vietnamese occupation of Cambodia. The U.S., in particular, continued to nancially support the Khmer Rouge.22 Democratic Kampuchea retained a seat at the United Nations until 1992.23 The Vietnamese eort to collect evidence of the crimes against humanity commi ed by the Khmer Rouge was construed, accurately, as an eort to justify their occupation of Cambodia. The Vietnamese also made a empts to prosecute lower level Khmer Rouge leaders by sending them to re-education camps in the early 1980s. Highranking ocials were able to escape to their jungle retreats in the northwestern district of Anlong Veng and evade persecution.24
20 David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in Cherif Bassiouni, ed., INTERNATIONAL CRIMINAL LAW, Vol. III, 3rd edition (Martinus Nijhoff Publishers, 2008), pp. 219-255) 21 Philip Short, Pol Pot Anatomy of a Nightmare. (New York: Henry Holt and Company, 2004): 364 22 Walter Goodman, Review/Television: Jennings Says U.S. Helps Khmer Rouge, The New York Times, April 26 1990, Jan. 12 2010 http://www.nytimes.com/1990/04/26/arts/review-television-jennings-says-us-helps-khmer-rouge.html, John Pilger, How Thatcher Gave Pol Pot a Hand, New Statesman (London, England: 1996) 129 21-2 (Apr. 17 2000), Ben Kiernan, Coming to Terms with the Past: Cambodia, History Today 54.9 (2004) 23 Ben Kiernan, Cambodias Twisted Path to Justice, The History Place, 1999, Jan 12 2010 http://www.historyplace.com/ pointsofview/kiernan.htm 24 Ben Kiernan, Preface to the Second Edition, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge (New Haven: Yale University Press, 1996): xxvi, Colin Long and Keir Reeves, Dig a Hold and Bury the Past in It: Reconciliation and the Heritage of Genocide in Cambodia, Places of Pain and Shame: Dealing with Difficult Heritages, Ed. William Logan and Keir Reeves (New York: Routeledge, 2009): 69-70
A empts to Document and Memorialize In 1994, Ben Kiernan, professor of history at Yale University, started the Cambodian Genocide Project (CGP) with funding from the State Department, the Australian and Netherlands governments and the Henry Luce Foundation. The work of the CGP was the rst major eort to document and preserve Khmer Rouge era documents. A eld oce in Phnom Penh, Cambodia was subsequently established to further the work of systematically researching Khmer Rouge activities.25 That eld oce would later become the Documentation Center of Cambodia. The organization at the forefront of documentation and memorialization has become DC-CAM. Their dual mission is to record and preserve the history of the Khmer Rouge regime and also to compile evidence in legal accounting for the crimes of the Khmer Rouge.26 For several decades, the UN has been pushing for some kind of tribunal to prosecute the Khmer Rouge. The creation of the ECCC took longer than any other international criminal tribunal in the post-Cold War era. Negotiations between the UN and the Cambodian government lasted many years and included a low point in which it seemed that such a legal compromise would not be possible. The general point of contention was the issue of control of the tribunal itself. What emerged is a pioneering hybrid system in which the ECCC is housed within the Cambodian judicial system, but includes both international and Cambodian judges.27 The tribunal has its detractors, including Amnesty International and Human Rights Watch. These groups doubt the impartiality of the trial given the corrupt nature of the Cambodian judicial system. The qualications of the Cambodian judges have been called into question, as well as the wisdom of trying just a handful of pre-selected former DK o-
cials.28 Amidst allegations of kickbacks and because of budget shortfalls, the U.S. government has been tepid in their support of the trial. Only recently has the U.S. government donated 1.8 million dollars to assist the court.29 Despite these controversies, many surveys have demonstrated wide support for some kind of tribunal process to prosecute the Khmer Rouge.30 The trial of Kaing Guek Eav (alias Duch) has only recently concluded, and at the time of writing this article, we await the judges decision on his fate. New charges against senior leaders Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith were announced in December 2009. Included in these charges of war crimes and crimes against humanity are charges of genocide against Vietnamese and Cham, or Muslim, minority groups. As legal experts and scholars debate about the validity of these genocide charges, average Cambodians are not particularly engaged in the nuance of this legal debate. In fact, a 2008 study by Berkeley Human Rights Center found that nearly half of those surveyed (46%) had limited knowledge about the ECCC.31 Though this number must have decreased due to increasing coverage of the trial in the past two years, the percentage of Cambodians who have been engaging in outreach and education eorts around the trial are very low.
25 Introduction. Cambodian Genocide Program. 2009. Yale, Web. 18 Jan 2010. http://www.yale.edu/cgp/cgpintro.html 26 History and Description of DC-CAM. DCCAM, Web. 18 Jan 2010. http://www.dccam.org/Abouts/History/Histories. htm 27 David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in Cherif Bassiouni, ed., INTERNATIONAL CRIMINAL LAW, Vol. III, 3rd edition (Martinus Nijhoff Publishers, 2008), pp. 219-255)
28 Khmer Rouge Survivors Feel Justice Denied, BBC News, Dec. 11 2009, Jan. 18 2010 http://news.bbc.co.uk/2/ hi/8406427.stm, Sara Colm, Killing Field Trials, Human Rights Watch, March 2 2008, Jan. 18 2010 http://www.hrw. org/en/news/2008/03/02/killing-field-trials, Seth Mydans, Efforts to Limit Khmer Rouge Trials Decried, The New York Times, Jan. 31 2009 (Phnom Penh), Jan. 18 2010 http:// www.nytimes.com/2009/02/01/world/asia/01cambodia. html?scp=15&sq=&st=nyt 29 Stephen Kaufman, Strong U.S. Support for Trial of Former Khmer Rouge Official, America.gov, 18 Feb 2009, 12 Jan 2010 http://www.america.gov/st/hr-english/2009/February/ 20090218151653esnamfuak0.1981928.html 30 Phuong Pham, et al., So We Will Never Forget: A population-based survey on attitudes about social reconstruction and the extraordinary chambers in the courts of Cambodia, Human Rights Center, University of California Berkeley, Jan. 2009, Jan. 18 2010 http://hrc.berkeley.edu/pdfs/So-We-WillNever-Forget.pdf, Khmer Rouge Tribunal Project, The Khmer Institute of Democracy, Big Pond, 18 Jan. 2010 http:// www.bigpond.com.kh/users/kid/program_7.htm 31 Phuong Pham, et al., So We Will Never Forget: A populationbased survey on attitudes about social reconstruction and the extraordinary chambers in the courts of Cambodia, Human Rights Center, University of California Berkeley, Jan. 2009, Jan. 18 2010 http://hrc.berkeley.edu/pdfs/So-We-Will-Never-Forget. pdf
If the trial is intended to provide transitional justice to Cambodian victims, these outreach eorts could be supported in a much larger way. Memorial Sites Eorts thus far to memorialize the events of the Cambodian genocide can only be characterized as inadequate. The largest symbol of the Cambodian genocide is the Tuol Sleng Genocide Museum in Phnom Penh. Originally a high school, the Khmer Rouge turned this campus into a prison camp where up to 17,000 prisoners were processed and imprisoned, later to be executed. Although perceived as a place for tourists by many Cambodians, interest on the part of Cambodians has been increasing since the start of the ECCC.32 School groups regularly le through the museum along with foreign tourists. The second most visited genocide site in Cambodia is the Choeung Ek Memorial. The most famous of approximately 500 killing sites across Cambodia, Choeung Ek is 15 km (10 mi) from Phnom Penh. The site includes mass graves, remains of the dead, as well as placards and postings which date from the 1980s.33 Choeung Ek was visited by over 22,000 people in 2008, mainly international tourists.34 Choeung Ek serves as less of an educational resource than Tuol Sleng. A report by Louis Bickford of the International Center for Transitional Justice suggested the need to update the anachronistic explanations which reect the propagandistic intentions of the Vietnamese-backed government during the Peoples Republic of Kampuchea.35 It appears that even fewer Cambodians visit this site as compared to Tuol Sleng. However, some NGOs, such as DC-CAM and the Center for Social Development, do occasionally organize memorial trips for Cambodians. It should be noted that in 2005, a Japanese company called JC Royal, Co acquired the rights to develop
32 Thy Ratanak, Khmer Rouge Trial Spurs S-21 Visitors Increasing, Rasmei Kampuchea, Khmer Rouge Trial Portal, Aug. 8 2009 (Phnom Penh), Jan. 18 2010 http://www.krtrial. info/showarticle.php?language=english&action=showarticl e&art_id=4024&needback=1 33 http://www.cekillingfield.com/ 34 Statistics: Visitor Arrivals on January 2008, CEKillingField.com, 2008, Choeung Ek Genocidal Center, 18 Jan. 2010 http://www.cekillingfield.com/statistics_jan08.htm 35 Louis Bickford, Transforming a Legacy of Genocide: Pedagogy and Tourism at the Killing Fields of Choeung Ek, ICTJ. org (February 2009), International Center for Transitional Justice http://www.ictj.org/static/Asia/Cambodia/ICTJBickford_KHM_ChoeungEK_pa2009.pdf
Choeung Ek.36 Their eorts have been to beautify, preserve, and restore the site. They have also been making commercial changes such as increasing the ticket price in an eort to increase revenue. However, it is unclear what kind of commitment the management company will make, if any, to increase the educational potential of the site. History Textbook for Cambodia In 2008, the Cambodian government approved a textbook about the history of the Cambodian genocide for use at the high school level,37 something DC-CAM has advocated for years. The history textbook was held up in controversy with the Cambodian government for many years. In 1993, the government ended eorts at genocide education for the sake of peace and stability. In 2002, the government removed a section on modern history from history books.38 However, despite the fact that the textbook has been published, it is doubtful that it will be in high rate of usage. The Cambodian education is not centrally-controlled and wholly under-funded by the federal government.39 Funding instead has come from foreign governments, such as France, and from international non-governmental organizations. Teachers are o en unqualied and have not received training or instruction on how to teach this sensitive subject. The publishing of the textbook called, A History of Democratic Kampuchea, is an important sign of the governments thawing around the issue of genocide education and the Khmer Rouge genocide in general. Genocide Prevention Eorts by Cambodian NGOs The well-developed NGO community in Cambodia has been lling the role of providing educational and outreach opportunities for the population. Its contributions to transitional justice thus far have been very important. The next section highlights major NGOs active in Cambodia.
36 Kevin Doyle, The Revenue Fields, Time, Apr. 11 2009 (Phnom Penh), 13 Jan. 2010 http://www.time.com/time/magazine/article/0,9171,1047552,00.html 37 Genocide Education 2004-Present, DC-CAM, 13 Jan. 2010 http://www.dccam.org/Projects/Genocide/Genocide_Education.htm 38 Ibid 39 Stephen J. Duggan, The Role of International Organizations in the Financing of Higher Education in Cambodia, Higher Education 34.1 (Jul. 1997) http://www.jstor.org/stable/3448165
DC-Cam : (www.dc-cam.org) In addition to ongoing genocide prevention eort, such as observing and publicizing the events of the ECCC and engaging the public in victim participation eorts, DC-CAM is planning some very important activities, which will make major contributions to genocide prevention. Thus far they have bused in 10,000 people to observe the ECCC proceedings. DC-Cam is in the midst of building a permanent genocide research center in Phnom Penh called the Sleuk Rith Institute. The new institute will allow DC-CAM to expand their research capacity and genocide prevention eorts. Meanwhile, they are training Cambodian genocide experts and educators in a core curriculum centered on the recently published history book, A History of Democratic Kampuchea. They have already distributed 300,000 of these history books. DC-Cam is also planning to publish a comprehensive book listing the names of all Khmer Rouge era victims. In an eort to make their archival material available, they are also looking to digitize and publish online 900 reels of microlmed documents from the DK government. DCCam, with permission of the state government, also plans a forum to commemorate key human rights legal passages, such as the 1948 Genocide Convention, which Cambodia signed in 1950. Center for Social Development (CSD) : (www.csdcambodia.org) CSD has been conducting public forums throughout the country for the past several years to engage the country in the ongoing events as they unfold as part of the ECCC. They have been organizing busloads of victims to visit the site of the ECCC and to observe the trial proceedings. They have been organizing lings as civil parties on behalf of orphans, widows, and prisoners. ADHOC : (www.adhoc-chra.org) ADHOC has been engaging in outreach activities revolving around the tribunal. They are supporting individuals while they le applications as civil parties. They have organized a workshop, discussing ideas for reparations. They will be sending such recommendations to the tribunal itself, including suggestions to create hospitals, museums, libraries, and memorials. They continue to monitor the ECCC and publicize news through media, such as radios. KID Khmer Institute for Democracy : (www.online.com.kh) KID executed a very comprehensive outreach campaign through the countryside, informing citizens
about the ECCC, and conducting discussions of issues such as reparations and victim participation. Over 100,000 people have been reached through their Khmer Rouge Tribunal outreach program. They have also conducted police training for victim and witness protection. They make ongoing recommendations and submissions to the ECCC itself. KID even created a documentary lm called We Want (U) To Know targeted specically to the younger generation. This participatory lm project empowered local villagers to make a documentary lm with reenactments of their own Khmer Rouge experiences. The lm process also included interviews between Cambodian youth and elders. The Victims Association of Democratic Kampuchea A Cambodian victims group called the Victims Association of Democratic Kampuchea has recently been founded by one of the handful of survivors of S-21. The group has not been able to conduct activities because of lack of funds but is currently appealing to international donors. They report that 1,000 people have applied for membership and donate $0.50 to $1 months for dues. Groups such as these could play a key role in genocide prevention strategies in the future.40 Media Some impressive media initiatives have been able to connect the public with the actions of the ECCC. Newspaper coverage has been extensive throughout Cambodia.along with radio coverage, including an ongoing radio program called Voices of the Victims, produced by ADHOC. One eective tool has been the weekly half hour show called Duch on Trial. The show has a racted 2 million viewers a week and continues to inform the public about the most recent developments.41 Contributions from the Cambodian American Community Because I am most familiar with activities among the Cambodians in America, I will highlight some of the contributions of this diaspora group. There have been a number of books, plays and lms
40 Khmer Rouge Victims Group Founded but Lacks Funds, Taiwan News, Jan. 12 2010, Jan. 18 2010 http://www.etaiwannews.com/etn/news_content.php?id=1153667&lang=eng_ news 41 Brendan Brady, Lights, Camera, Genocide! GlobalPost, Nov. 20 2009 (Phnom Penh), Jan. 18 2010 http://www.globalpost.com/dispatch/asia/091116/cambodia-genocide-tribunal-television
produced in the past thirty years which further education and awareness about the Khmer Rouge history. Films such as The Killing Fields are the main method by which Americans became familiar with this part of history. The documentary lms New Year Baby, the Flute Player, and others have gained wide distribution on television. The books of Luong Ung, First They Killed my Father and Lucky Child, are widely read in high schools and university classrooms which examine genocide. The rst Cambodian American museum about the Khmer Rouge genocide has been established in Chicago, IL, called the Cambodian American Heritage Museum and Killing Fields Memorial. A group founded by sociologist Leakhena Nou at California State University, Long Beach called ASRIC has traveled throughout the U.S. collecting victim testimonies to le these individuals as civil parties for the ECCC. And my work at Khmer Legacies a empts to capture testimonies of Cambodian American survivors. It is important to acknowledge the work of the Cambodian American community in order to further education and raise awareness about the Cambodian genocide. Lack of Genocide Narratives With the exception of the books, lms, and plays aforementioned, there has been a severe lack of genocide narratives about the Khmer Rouge genocide. Thus far there has not been a movement within the survivor community to tell these stories. This is certainly true in comparison to the euence of Holocaust narratives that exist. In fact, about three hundred books on the Holocaust are published in English alone each year;42 the sheer volume of this statistic is telling of the number of books that must exist on the Holocaust, which includes new books published in other languages yearly, in addition to 60 years of previous Holocaust research and literature. Nearly all of the Khmer Rouge genocide narratives are created by Cambodians from the Diaspora whose families were refugees later rese led in a third country. One reason for the lack of narratives may just be a ma er of timing. Holocaust narratives really did not emerge until nearly 35 years a er the end of WWII with the publication of Children of the Holocaust: Conversations with Sons and Daughters of Survivors by Helen Epstein in 1979. It is o en the energy
and interest of the second generation which creates an audience for these genocide narratives. Another reason for the lack of narratives has been the relative poverty of Cambodians in Cambodia and even within the immigrant communities in Western countries. Cambodia ranks 137 out of 182 countries in UNDPs latest Human Development Report, a report that accounts for a countrys GDP per capita, education level, health indicators and other metrics. In America, the poverty rate for Cambodian Americans in 2005 was 21.2%.43 Very few have been able to sustain a livelihood through telling these stories. Amid the pressures of rebuilding their lives and adjusting to a new country, recording genocide narratives have not yet emerged as a priority. The intelligentsia of the country also either, escaped Cambodia in 1975 before the Khmer Rouge came to power or were systematically killed during this period. The survivors who endured the genocide mostly come from impoverished rice farming communities. They do not have the skills, education level or managerial talent necessary to undertake documentation of genocide narratives. The Khmer Rouge also inculcated in the society a fear around speaking. This sentiment is expressed through dictums such as Stick to the four precepts: do not know, do not hear, do not see, do not speak.44 There are anecdotes of those who cut out their tongue or pretended to be mute in order to survive. That fear of speaking continues to this day, coupled with a general distrust of how their stories may be used against them by the current government. Consistent with this lack of genocide narratives is an absence of leaders and voices that have inuence in the public discourse around genocide prevention policy. It is very well known that Elie Weisel was able to inuence President Bill Clinton to commit NATO troops to intervene in the genocide in Bosnia.45 The closest approximation to an Elie Weisel gure in the Cambodian community was the late Dith Pran, whose life was depicted in the lm
43 Cambodian Profile 2005, U.S. Census Bureau, Hmongstudies.org http://hmongstudies.org/CambodianProfile2005ACS.pdf 44 Henri Locard, Pol Pots Little Red Book: The Sayings of Angkar (Chiang Mai, Thailand: Silkworm Books, 2004). 45 Mark Chmiel, Elie Wiesel and the Politics of Moral Leadership (Philadelphia: Temple University Press, 2001): 145.
42 Gregory Weeks, Understanding the Holocaust: The Past and Future of Holocaust Studies, Contemporary European History 15.1 (2006): 117-118
The Killing Fields. Unfortunately, this voice for Cambodians died in 2008 from cancer.46 As a result Cambodians themselves have not added their voices to the discourse around genocide prevention thus far. With no audience, they have no political capital to assert their voice. Groups active on behalf of stopping the genocide in Darfur are mainly sourced from Jewish groups and college students. Cambodians have not joined this coalition of genocide activists. Prevention Strategies When we turn to prevention strategies, Cambodian civil society can rst focus on preventing a recurrence of genocide in Cambodia itself. Post-conict experts have discussed the cyclical nature of conict wherein each post-conict environment contains the potential seeds of the next round of destruction.47 If Cambodian civil society can focus its efforts on preventing a recurrence of genocide, it can make a tremendous contribution to the peace and stability of the region and the world. Those who were born a er 1979 make up 70% of the population in Cambodia.48 Due to a lack of education about the genocide and the fact that the history is not shared within families, many Cambodian youth deny that the genocide happened at all. The Open Society Institute funded a documentary in 2006 called Wanting to See the Truth about a group of young Cambodians who were ignorant about their countrys past. The lm crew took them to the genocide memorial sites in order to show evidence that the genocide happened. Eorts such as these will help to eradicate the phenomenon of denial among Cambodian youth. Eorts at genocide education need to grow within Cambodia. But without a centrally-controlled edu46 Douglas Martin, Dith Pran, Photojournalist and Survivor of the Killing Fields, Dies at 65, The New York Times, March 31 2008, Jan. 18 2010 http://www.nytimes.com/2008/03/31/ nyregion/31dith.html 47 Gareth Evans, Conflict and Poverty, keynote address, 10 March 2009, Plenary Session Tackling Conflict, Fragility and Insecurity: Creating the Conditions for Effective Poverty Reduction, DFID Conference on Future of International Development, London, Jan. 18 2010 http://www.dfid.gov.uk/Documents/publications/dfid-conf-gareth-evans.pdf 48 Christopher Shay, The Khmer Rouge Tribunal: Cambodias Healing Process, Time, Nov. 30 2009 (Hong Kong), Jan. 13 2010 http://www.time.com/time/world/article/0,8599,1943373,00. html, Khmer Rouge Trial to Test Cambodian Justice, VOA News, Feb. 16 2009 (Bangkok), Jan. 13 2010 http://www1. voanews.com/english/news/a-13-2009-02-16-voa12-68674217. html
cation system where curriculum and standards are set forth by the federal government, this kind of education may be impossible without a full reform of the education system itself. Private universities and the countrys one public university, the Royal University in Phnom Penh, could insist upon mandatory genocide education as part of the general requirement for all students. By focusing on university students, at the very least, the most educated in the next generation will benet from the knowledge of their countrys modern history. Teaching genocide in Cambodia presents a distinct context from genocide education in other countries. Cambodians generally perceive the genocide as the result of Cambodians killing Cambodians. There is shame inherent in discussions about what Khmers refer to as the Pol Pot time. In order to avoid this emotional resistance to learning and talk about this disgraceful history, educators could focus on the heroic acts of individuals who saved others during the genocide. Presenting the stories of rescuers or resisters, as they have been referred to in the cases of the Holocaust and other genocides, can help to bring down the resistance Cambodian audiences may have when being presented with evidence of their own cultural deciencies.49 In order to communicate the scale of death that ensued during the Khmer Rouge genocide, images are more powerful than numbers. Representing each victim through an object, such as names, photographs or paper clips, also seems to provide a powerful aid for people to appreciate the numbers.50 Furthermore, I think all genocide education should focus less on the staggering statistics of those victims and more on in-depth stories of individuals. Research on psychophysical numbing has shown that the level of empathy and therefore aid diminishes with each additional charity case presented.51 By focusing on well-told narratives of individuals we can avoid the compassion and fatigue that characterizes so much well-meaning work around genocide education. Cambodian religious leaders can take a lead in providing the space for healing opportunities. Despite
49 Conversation with Prof. Ben Kiernan Oct. 07, 2009 50 Paul Slovic, If I look at the mass I will never act: Psychic numbing and genocide, Judgment and Decision Making, vol. 2, no. 2, April 2007, pp. 79-95. (http://journal.sjdm.org/7303a/ jdm7303a.htm) 51 Ibid
many monks being killed or defrocked during the Khmer Rouge regime and their temples being destroyed or re-purposed, many Cambodian religious leaders have been hesitant to speak directly about the crimes against humanity inicted upon their congregations. One notable exception was the late Maha Ghosananda, one of only a few thousand Cambodian Buddhist monks to have survived the Khmer Rouge reign. He was known as the Gandhi of Cambodia, and as a leading gure he helped to restore Cambodian Buddhism. Ghosananda organized a 16-day 125 mi. peace march through Khmer Rouge held territory in 1992, for which he was nominated for a Nobel Peace Prize.52 Many Cambodians, monks included, perceive any commemoration of the Khmer Rouge genocide as too political and divisive of an issue in which to involve themselves. For instance, I have been trying to garner supporters for a national mahaparitha, a Buddhist liturgical event which includes an extended chanting session. Some community members were very excited about the possibility, until they heard that I specically wanted the event to take place on April 17, the anniversary of the Khmer Rouge coming to power. Some supported the event but suggested that I exclude the fact that it was a community healing event to commemorate the losses from the genocide. One promising eort has been forged by the Cambodian NGO Youth for Peace (YFP), which provided training to monks on how to engage in the reconciliation process. These monks then organized their own events, encouraging the young and old to talk about the Khmer Rouge period.53 Cambodian religious leaders could take a lead in this role by creating religious events that specically address the survivor communitys need to tackle the trauma and pain through religious upli . These kinds of events can help to arm and acknowledge the loss of Cambodian survivors, not only easing
52 Dennis Hevesi, Maha Ghosanada, Called Cambodias Ghandi, Dies, New York Times, March 15 2007, Jan. 13 2010 http:// www.nytimes.com/2007/03/15/world/asia/15ghosananda. html?_r=1, Obituary: Maha Ghosanada, Monk Who Helped Bring Buddhism Back to Cambodia, Dies, New York Times, March 14 2007, Jan. 13 2010 http://www.nytimes. com/2007/03/14/world/asia/14iht-obits.4904497.html 53 Michael Marien, Peace Monks, The DED in Cambodia, 2009, Jan. 28 2010 http://cambodia.ded.de/cipp/ded/custom/pub/ content,lang,2/oid,13705/ticket,g_u_e_s_t/~/Peace_monks. html
their individual pain and restoring spiritual balance, but also giving them permission to speak about their own loss. Civil society can also focus on the ethnic and class tensions which the Khmer Rouge exploited in order to commit their crimes. Under the Khmer Rouge ethnic Cham or Muslim, Vietnamese and Chinese minorities were targeted.54 NGO and educational systems could create programs, educational tools, and outreach campaigns to ease ethnic tension between and among these groups today. Societal problems are still blamed on the Vietnamese to this day, a long-standing rival of Cambodians. In polite society, Cambodians regularly refer to Vietnamese using an ethnic slur, youn.55 Politicians use the land encroachment issue by the Vietnamese to rally popular anger and support for their candidacy.56 Ethnic Cham communities live in social isolation from mainstream society and are typically regarded as pariahs. An increasing number of Chinese nationals are moving to Cambodia looking for economic opportunity, adding an ethnic dimension to economic disparities. Civil society could play a role deeming ethnic stereotyping and prejudice unacceptable, since these societal divisions are part of the groundwork necessary to perpetrate genocide. They can achieve this through television, radio, and educational programs, along with other outreach activities. Civil society can promote civic engagement in general. The Khmer Rouge tore apart the social fabric of society by destroying institutions such as religion, education and the family structure. The genocide is perceived as Cambodians killing Cambodians. Mistrust in society and authority is rampant. Historically, Cambodia is based on a client-patron system. Peasants in the rice eld fulll their dharma by working the land and living a simple life with few privileges. Conversely, patrons or land owners fulll their dharma by living lives of material wealth while supporting the poor.57 Increasingly, foreign-funded NGOs have lled the role of patrons while most
54 Ben Kiernan, Introduction: Conflict in Cambodia, 19452002, Critical Asian Studies 34.4 (2002): 486 55 Frank Smith, Interpretive Accounts of the Khmer Rouge Years: Personal Experience in Cambodian Peasant World View (Wisconsin: Center for Southeast Asian Studies, 1989) 31 56 Stronger and Stronger, The Economist 386 (2003) 40 57 Serge Thion, The Cambodian Idea of Revolution, Revolution and its Aftermath in Kampuchea: Eight Essays, ed. David P. Chandler and Ben Kiernan (New Haven: Yale University Southeast Asia Studies, 1983): 11
Cambodians see themselves exclusively as recipients of charity. NGOs could advance ethics of community engagement, leadership, volunteerism, and civic virtue. They could promote ideas of investing in ones own society. In todays Cambodia, the brightest hope, a young Cambodian, might have to participate in a paper marriage with a foreigner in order to move to a Western country, receive a green card and work in indentured servitude for several years in order to re-pay the terms of that arrangement. NGOs could advance the notions of integrity and public service.58 Developing pro-social values in the next generation of Cambodian leaders is elemental to preventing a recurrence of genocide in the country and advancing society in general. Cambodian civil society could also make an eort to tie further awareness and education about other genocides as well. DC-CAM has translated The Diary of Ann Frank into Cambodian.59 Showing lms and translating books about other genocides will help to ease the shame Cambodians feel about having been a part of this history. NGOs can also take a larger role in the global anti-genocide movement. Some NGOs have been doing this already. For instance, when Mia Farrow came to Cambodia as part of a worldwide tour to bring awareness to genocide as part of the Dream for Darfur organization, the Center for Social Development and others marched along with her.60 The government would eventually block her from lighting a ame at the Tuol Sleng Genocide Museum, but CSD and others deserve credit for adding the voices of Cambodians to this global movement. To combat denial in the younger generation, we could harness the internet to connect younger Cambodians in the country and abroad. The youth of Cambodia is very eager to connect with the outside world through social networking sites. This could be a portal for younger Cambodians to learn about the events of the Khmer Rouge genocide unltered
58 First Women Wins Youth Leadership Challenge, Usaid.gov, 07 May 2008, USAID,18 Dec. 2009 http://www.usaid.gov/kh/ documents/USAID_More_Headlines_YLC_May_07_08.pdf 59 Gerard J.H.C. Kramer, The Diary of a Young Girl Anne Frank, Dccam.org Dec. 2002, Documentation Center of Cambodia, 18 Dec. 2009 http://www.dccam.org/Publication%20an d%20research/anne_frank_diary.htm 60 DPA, Cambodia Accuses Actress Mia Farrow of Hijacking its Tragic Past, Earthtimes.org. 16 Jan. 2008, Earth Times, 18 Dec. 2009 http://www.earthtimes.org/articles/show/ 174214,cambodia-accuses-actress-mia-farrow-of-hijackingits-tragic-past.html
through the government or through educational institutions. Of course these kinds of genocide prevention eorts may come up against the indierence of the local population. Given the basic needs of the Cambodian citizenry, it is easy to imagine why genocide prevention is not a priority. The anecdote of one NGO worker perfectly illustrates this tension. A donor agency had provided funding for her NGO to build a series of genocide memorials throughout the villages in various provinces. Upon consultation with village leaders, these individuals instead suggested the funding be used to build lavatory facilities or to x the roof on the community center. The genocide memorial project could not move forward as designed.61 This is just one example of how donor organizations and NGOs must balance the competing needs of Cambodian society. Reconciliation and healing projects must be born out of existing cultural and religious contexts. Prevention of Genocide around the World Cambodians also have a role to play in preventing genocide around the world. Outspoken Cambodian survivors could join a coalition of genocide survivors from the Holocaust, Rwanda, Bosnia and Darfur. Such a group could speak with one voice and with a level of moral authority to policymakers which could not be ignored. Furthermore, we can help support Cambodian survivors who emerge as spokespersons for the Khmer Rouge genocide. Authors like Luong Ung have unfortunately been the target of rancor from some Cambodian Americans who claim that her memoirs are inaccurate and biased.62 Our community should instead be empowering spokespersons such as Ung. Meanwhile we should be supporting eorts to record testimonies and stories of a large number of survivors, such as the work of my organization, Khmer Legacies.63 These stories should be encouraged to reverberate within and outside of the Cambodian community. This is how we can add Cambodian voices to the permanent constituency of citizens which apply political pressure to their elected ocials to sup61 Hun Taing, Conversation, Jan. 16 2010 62 Soneath Hor, Sody Lay, and Grantham Quinn, First They Killed Her Sister: A Definitive Analysis published on http:// www.khmerinstitute.org/articles/art04.html, Sody Lay, Remembering the Cambodian Tragedy, Khmer Buddhist Relief, Jan. 18 2010 http://www.khmerbuddhistrelief.org/sodyarticle. html KI Position, Khmer Institute, 2000, Jan. 18 2010 http:// www.khmerinstitute.org/homealt.html 63 www.khmerlegacies.org
port genocide preventative measures. Cambodians should also continue to examine the factors that led to the rise of the Khmer Rouge. Examining such factors will help to provide diagnostic tools to understand potential genocides. In the past, the Cambodian government has been resistant in tying China to the support of the Khmer Rouge. Instead they focus on the destabilization of Cambodia through the secret American bombing.64 All contributing factors to the genocide need to be examined. Cambodian civil society should also be collecting and making readily available to the public, photos and lm footage of this period. At the moment a journalist or producer looking for archival material of this period must deal with a host of individuals who claim ownership to this material and license it for their own personal gain. We should follow the example of antinuclear activist Tsutomu Iwakura, who purchased archival footage of the atomic bombings over Japan which was being censored by the U.S. military.65 This material should be acquired by a public agency and be made available to the public free of charge. Showing such materials helps to afrm the experience of survivors as well as increasing the dissemination of information and education about this history to the rest of the world. Conclusion Cambodian civil society has a powerful role to play in the area of genocide prevention within Cambodia and around the world. There are many factors that hinder such an eort, including the relative poverty and lack of education within Cambodian society and the lack of support on the part of the government. However, as the next generation advances, I maintain hope that their energy and curiosity will be poured into this eort. Understandably, some survivors are fatigued by this unceasing emphasis on the Khmer Rouge past. They argue that Cambodia should be known for more than genocide. As much as I sympathize with these sentiments, I recognize that the tide is turning in a dierent direction. As the generation of survivors ages and dies, a new generation of leaders emerge with li le context of their own countrys
64 Marwaan Macan-Markar, Cambodia: Khmer Rouge Trials may Expose US, China, Inter Press Service New Agency (Phnom Penh) 30 Mar. 2009, 18 Dec. 2009 http://ipsnews.net/ news.asp?idnews=46317 George McLeod, Tribunal Ignoring US Role, Says Chomsky, Phnom Penh Post, March 27 2009, 18 Dec. 2009 http://www.phnompenhpost.com/index.php/National-news/ Tribunal-ignoring-US-role-says-Chomsky.html 65 Original Records of A-Bombing Return to Japan, Nhk.or.jp, NHK Peace Archives, 18 Dec. 2009 http://www.nhk.or.jp/ peace/english/chrono/history/his_p12.html
past. It is crucial, especially for the educated class of future generations, to have this knowledge in order to rebuild society. This knowledge is also crucial for the future of the globe as a whole. The voices of Cambodians can also act as a beacon, a voice of urgency as the world balances its security priorities.
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Advancing Genocide Prevention Through a High-Level Task Force
A Reection from the United States:
I. Introduction Its the biggest regret of my administration.2 That is how former president Bill Clinton described his failure to prevent or halt the 1994 genocide in Rwanda. His successor, George W. Bushthough not one to articulate regretsis reported by insiders to have found the crisis in Darfur perhaps the most vexing of his two terms. On leaving ofce, Bush voiced frustration about the diculty in making progress toward resolving the crisismore than four years a er declaring that it amounted to genocide.3 These reactions by the last two American presidents are, in a certain way, quite surprising. Debates about American responses to genocide and mass atrocities tend to occur on the margins of the public and policy discourse. Indeed, few Americans could place Rwanda or Darfur on a map, much less articulate what the United States should do to help eradicate genocide from the globe. On the other hand, Presidents Clinton and Bushs expressions reect the distinctive avor of the discourse on the prevention of genocide in the United States. Optimists by nature, Americans tend to believe that a world without genocide is within reach, and that the United States, as the world's sole superpower, should lead the ght against this scourge. Indeed, a strong majority of Americans polled say the United States should play a leading role in developing more eective ways to prevent
1 Lawrence Woocher is a senior program officer at the United States Institute of Peace*, an independent, nonpartisan, national institution established and funded by the U.S. Congress. He was a member of the executive committee and lead expert on early warning for the Genocide Prevention Task Force, co-chaired by former Secretary of State Madeleine Albright and former Secretary of Defense William Cohen. He is also a lecturer at the Elliott School of International Affairs at George Washington University. *The views expressed here are the authors own and do not necessarily reflect the views of the United States Institute of Peace, which does not advocate specific policy positions Transcript from Campus Progress National Student Conference, Swarthmore College, July 13, 2005. Available online at: http://www.campusprogress.org/common/388 See for example: http://www.cbc.ca/canada/story/2009/05/29/ clinton-bush-conversation-toronto.html
mass atrocities.4 Presidents Clinton and Bush were, thus, partly reecting the regret and frustration the American people feel when their government fails to realize its aspirations. Acknowledgments of regret, expressions of frustration, and repeated rhetorical commitments to "never again" are of li le value, however, unless they are channeled into action. If one accepts that the United States can be a positive force for the prevention of genocide, we must ask how the current president and his successors can avoid looking back on their own terms and sharing similar regrets with past presidents. What are the practical steps that would be er equip the U.S. government to leverage its inuence around the world to reduce the chances of another genocide? This is the challenge that spawned the Genocide Prevention Task Force (GPTF), the focus of this article. First, I will describe the goals, structure, and working methods of the GPTF. Second, I will outline three major themes that emerged from the task force's work. Third, I will discuss the task force's ndings and recommendations in each of the six main chapters, highlighting points with the greatest relevance for the global discourse on genocide prevention. Fourth, I will review the response to the GPTF report and its recommendations by the U.S. government and the broader community of interested parties. Fi h and nally, I will comment on how the GPTFs work can advance global eorts to prevent genocide.
The Harris Poll #2, Large Majority of Public Rejects Old Ideas of Sovereignty and Favors International Intervention in Countries that Kill and Abuse Their Own People (January 8, 2007). Sixty-two percent of Americans polled in December 2006 agreed with the statement, The United States should play a leading role in developing new and better ways to prevent and react to international problems like Bosnia, Kosovo, Rwanda, and Darfur, versus 27 percent who disagreed. In 1999, 70 percent agreed versus 25 percent disagreed with the same statement. Available online at: https://www.harrisinteractive.com/harris_poll/index. asp?PID=718
II. The Genocide Prevention Task Force: Goals, structure, and working methods The task force, commission, or study group model is common in Washington and beyond. Sometimes these groups are commissioned by Congress or a presidential administration to study a particularly perplexing policy problemor a problem whose solution would require unpalatable political choicesand make proposals for U.S. government action. Policy experts and policy entrepreneurs outside of government seeking a vehicle for their ideas have also found the high-level task force a useful approach. The logic is that current policymakers and politicians are far more likely to listen to their friends and former peers than a wonk in a think tank, even if the proposals are identical. As a rule, policy task forces are composed of former senior ocials and other highly-respected persons representing a range of views and political perspectives. In Washington vernacular, the work of these groups tends to become synonymous with the bipartisan co-chairs chosen to lead the process. Recent examples in the United States include the Commission on the Strategic Posture of the United States (led by William Perry and James Schlesinger) and the Iraq Study Group (led by James Baker and Lee Hamilton), and at the global level, the International Commission on Nuclear Nonproliferation and Disarmament (led by Gareth Evans and Yoriko Kawaguchi) and the High-level Panel on UN System-wide Coherence (led by Shaukat Aziz, Luisa Dias Diogo, and Jens Stoltenberg). The GPTF was formed at the initiative of three U.S. NGOs working in collaboration: the U.S. Holocaust Memorial Museum (USHMM), the American Academy of Diplomacy (AAD), and the U.S. Institute of Peace (USIP, my home institution). A living memorial to the Holocaust, USHMM was created to inspire leaders and citizens to confront hatred, prevent genocide, promote human dignity and strengthen democracy. The Museum's work on contemporary genocide issues, including its involvement in the GPTF, is led by its Commi ee on Conscience. AAD is dedicated to strengthening the resources and tools America brings to managing its diplomatic challenges, and accomplishes this through outreach programs, lectures, awards, and writing competitions. The Academy includes some 200 retired senior U.S. diplomats as members, including all living former secretaries of state. USIP is an independent, nonpartisan, national institution established and funded by Congress. Its goals are to help prevent and resolve violent conicts, promote post-conict stability and development, and increase peacebuilding capacity, tools, and intellectual capital
worldwide. Over its 25 year history, the Institute has been deeply engaged in eorts to understand and prevent mass violence and to help societies recover from its horrors. USIP has also facilitated and supported multiple high-level study groups over the last several years. Goals of the task force From early discussions, the convening organizations se led on twin goals for the GPTF: (1) Spotlight genocide prevention as a national priority and help move debate about this issue from the margins toward the mainstream of foreign policy discourse; (2) Develop practical recommendations to enhance the ability of the U.S. government to respond to emerging threats of genocide and mass atrocities. The rst goal emanated from the belief that preventing genocide is too o en lost in the debate about U.S. foreign policy priorities and that a signicant impediment to eective preventive action is simply the lack of a ention to the issue in the policy community. The second goal consumed most of the work of the task force. In our estimation, extant analysis and writing on the subject of genocide prevention did not include sucient specic guidance for how the U.S. government could improve its record at preventing genocide. There was a large scholarly literature on specic historical cases of genocide, including some that delved into the actions (and inactions) of the U.S. government, a growing literature on comparative genocide studies and prevention, and there was a great deal of advocacy-oriented calls for greater U.S. action in specic casesmost notably, Sudan. But analyses and specic proposals for how to make the U.S. governments policy system work be er for this goal were quite scant. Structure and working methods The GPTF was composed of three interrelated parts: The principals: Formally, the task force refers to the 13 individual members including two co-chairs. The principals met in plenary three timesin December 2007, May 2008, and September 2008. Individual members contributed ideas and guidance to the supporting experts and sta in various other ways throughout the project. While the co-chairs played a strong leadership role throughout the project and their names will always be most closely associated with the task forces work, the nal report reected consensus among all thirteen principals. The co-chairs were both former cabinet secretaries under President Bill Clinton. Madeleine Albright was the Secretary of State from 1997-2001, a er
having been U.S. Permanent Representative to the United Nations from 1993-1997. William Cohen was Secretary of Defense from 1997-2001, joining the Clinton administration from the U.S. Senate, where he served for three terms as a Republican from Maine. The eleven other task force members included ve former members of Congress (John Danforth, Tom Daschle, Dan Glickman, the late Jack Kemp, and Vin Weber), two former White House advisors (Stuart Eizenstat and Michael Gerson), a retired general ocer (Anthony Zinni), a retired career diplomat and ambassador (Thomas Pickering), a former senior leader in humanitarian and development assistance (the late Julia Ta ), and a retired judge (Gabrielle Kirk McDonald).5 This mix of backgrounds and expertise was deliberate and an important characteristic of the task force. In addition, and no less important, the members spanned the U.S. political spectrum, with individual members having served as leaders of both major parties in Congress and appointees of multiple Democratic and Republican presidents. The Expert Groups: The main way the task force drew on expertise from the community of policy practitioners and scholars was via ve expert groups, each with about ten members. Each group had a lead member who was responsible for organizing meetings, coordinating with other expert groups, and presenting ndings to the task force. Expert groups met monthly during the main substantive phase of the project. In addition to these meetings, the ve expert group leads conducted the lions share of more than 200 consultations with current and former U.S. government ocials, ocials from other governments and intergovernmental organizations, and independent experts.6 While most consultations took place in Washington, expert group leads traveled to New York, London, Brussels, Addis Ababa, Abuja, Bujumbura, and Nairobi. The decision about how to organize the expert groups was a very important one at an early stage of the project. Not only did the organization of the groups provide the conceptual framework for the inquiry, but it foreshadowed the organization of the nal report. We considered two basic approaches: one framed around dierent tools of genocide prevention (e.g., diplomacy, economics, legal measures, military action) and another framed
5 See http://www.usip.org/genocide-prevention-task-force/ members for biographical information on each task force member Each of these consultations is listed in Appendix D of Preventing Genocide.
around phases of genocide prevention (i.e., precrisis, emerging crisis, ongoing mass violence). We chose the phased approach, with a few notable exceptions. The advantage of the phased approach, in our view, was that it would reduce the likelihood of replicating in our deliberations the silos found in government bureaucracies, where dierent agencies or departments do not plan or implement their strategies in coherent and complementary ways. Our approach, in contrast, sought to discuss the challenges and develop recommendations for comprehensive U.S. government approaches to dierent kind of situationse.g., a fragile country with a history of mass violence and discrimination, a conict situation that is beginning to include targeted a acks on civilians, an ongoing slow-burn mass atrocities situation. The ve expert groups were: (1) early warning; (2) early prevention/pre-crisis engagement; (3) preventive diplomacy/crisis management; (4) military options; and (5) international action. We began with early warning since this is a task that, by and large, precedes targeting of preventive strategies.The fourth group had originally been conceived to focus on strategies to halt ongoing atrocities, but it became clear that the vastness of the Defense Department merited a group to investigate the full range of ways in which military assets could be used for strategies to prevent or halt genocide. The h group was always conceived as being crosscu ing, drawing together the elements of the other groups that related to international cooperation as well as discussing how the United States could promote global norms and institutions that would reduce the incidence of mass atrocities and genocide. Undoubtedly, any organizational scheme like this has merits and drawbacks. The key to minimizing the potential problems of spli ing the work across ve separate groups was close and regular coordination among the groups. The Executive Commi ee: Day-to-day management and decision making about the project was made by a commi ee of representatives of each of the convening organizations plus a project manager. The ExCom met weekly to discuss both substantive and administrative ma ers, ensure the project remained on track and on time, and bring any concerns of the convening institutions to the table. The ExCom acted by consensus from the start, which was an important precedent for managing inevitable points of disagreement through the course of the project.
The scope Another important decision made at an early stage was to focus on the prevention of genocide and mass atrocitiesa dierent set of phenomena than is captured by the legal denition of genocide per se. Dening the scope this way had two major advantages, in our view. First, the legal denition of genocide does not include certain kinds of mass violence (e.g., where political groups are targeted, where there is insucient evidence of perpetrators specic intent to destroy a targeted group) that are nevertheless of the type that the task force was concerned with preventing. Second, we judged a slightly broader and less legally dened scope could help avoid legalistic arguments about precisely how to label heinous crimes, which have impeded timely and eective action. Moreover, the central objective of the task force was to develop recommendations for the prevention of genocidal violence, which necessarily implies acting before acts of mass violence have been commi ed. Dening the scope in this way tracks with the application of the responsibility to protect to genocide, crimes against humanity, war crimes, and ethnic cleansing, and follows recent scholarship that seeks to understand genocide on a spectrum of political violence, less as a discrete category.7 Why then retain "genocide" alone in the title of the task force and its report, a choice which has been criticized as "a form of deception"?8 Our reasoning was based on an understanding of "genocide" as a political as well as a legal concept. The task force judged that, for better or worse, using the term genocide improved the chances of mobilizing political support for its recommendations. The nal report The task force released its nal reportPreventing Genocide: A Blueprint for U.S. Policymakerson December 8, 2008, the eve of the 60th anniversary of the UN General Assemblys adoption of the Convention on the Prevention and Punishment of the Crime of Genocide.9 This date also fell in the period of transition between the outgoing President George W. Bush and incoming President Barack
7 8 9 Scott Straus (2007) Second-Generation Comparative Research on Genocide. World Politics 59(3): 476-501 William A. Schabas (2009) Definitional traps and misleading titles. Genocide Studies and Prevention 4(2): 179 Madeleine K. Albright & William S. Cohen, Preventing Genocide: A Blueprint for U.S. Policymakers (Washington, DC: United States Institute of Peace Press, 2008). Available online at: http://www.usip.org/programs/initiatives/genocide-prevention-task-force
Obama. U.S. presidential transitions last longer and lead to greater changes in sta and structures than in most established democracies, so this was a period when the Obama team was furiously reviewing all executive departments, considering appointments for key posts, and deliberating about dozens of choices regarding organizational structures. In theory, at least, the time was ripe to oer new ideas about how to tackle a challenge that the incoming president had spoken fervently about. III. Core themes of Preventing Genocide Given the extensive amount of detail in the 100-plus page report, it was important to distill a few relatively simple themes that captured the essence of the task forces ndings and recommendations. Three major themes from the task forces work became frequent talking points for briengs with journalists, U.S. ocials, NGOs, and others. First, the task force found that genocide and mass atrocities threaten core U.S. national interests, as well as American values, and therefore preventing genocide must be made a national priority. Mass violence against civilians has too o en been judged simply a humanitarian issue or one of a long list of human rights concerns. In fact, in the task forces view, mass atrocities negatively aect tangible U.S. national interests in multiple ways: by spawning instability that o en coincides with or fosters more direct threats to U.S. security such as narcotics trade, illicit tracking, and terrorism; by creating massive humanitarian crises that inevitably carry large costs in responding to basic human needs; and by having long-lasting and disruptive political impacts on the regions where they occur. The task force judged it was important to make a persuasive case that genocide represents a threat to U.S. national interests, not just our moral compass, to help raise the priority of genocide prevention in the policy community. While the moral imperative to try to prevent mass atrocities might be stronger on its own terms than the case about national security interest, the strongest case for high-level a ention to preventing genocide would come through a combination of moral and hard-headed arguments. Second, the task force concluded that genocide can be prevented. This seemingly simple point was, in essense, an argument against two commonly held views that signicantly inhibit preventive eorts. Many seem to believe that genocide and mass atrocities are inevitablewhether the result of ancient hatreds between ethnic groups or irrational and megalomaniacal leaders. These views are
perhaps understandable given the shocking nature of genocidal violence. But the hard reality is that genocides are not spontaneous spasms of violence among entire communities; they are systematic campaigns of violence engineered by relatively small groups of individuals. Moreover, evidence from historical cases indicates that genocidal leaders' decisions can be explained in signicant part by viewing their decision making through a lens of strategic logic.10 Even so, some contend, genocide cannot be predicted or halted in its incipient stages, and therefore the best we can do is be prepared to intervene to stop ongoing genocides in as timely a way as possible. In short, the argument goes, the choice that faces the United States is whether we are prepared to send in the Marines; if not, there is li le we can do to tackle the problem of genocide. The task force found this quite widespread view was not only inaccurate, but also debilitating to a full and eective policy debate. Even if genocide cannot be perfectly predicted, we can discern risks. Even if we cannot nd a single measure that will inoculate societies against mass atrocities, we can identify numerous potentially useful policy measures to reduce the chance that underlying vulnerabilities will grow into full edged genocidal crises. And even when a crisis has erupted and signs of planning for genocidal violence become apparent, there are steps the United States and international partners can take that might alter the decisions of potential perpetrators. The choice is not between inaction and large-scale military intervention. The third core theme of the task force report related to the gap between the way the U.S. government has tended to respond to emerging threats of genocide and the way that it should in order to be more eective. Consultations with current and former ocials indicated that U.S. government responses in the past have been overwhelmingly ad hoc, lacking the basic elements of an eective policy infrastructure for an important national objective. There has been no clear statement of U.S. policy on genocide prevention, no framework for guiding strategy in specic cases, no signicant institutional capacity dedicated to design and implement genocide prevention eorts. The task force, therefore, called on the new president to develop and implement a government-wide policy to prevent genocide, including the creation of specic and dedicated institutional mechanisms to ensure timely and eective action. In our view, a new policy must be
10 Benjamin Valentino, Final Solutions: Mass Killing and Genocide in the 20th Century (Ithaca, NY: Cornell University Press, 2004)
government-wide because responsibilities may span individual executive agencies and because a White House-directed policy has the best chance of overcoming inertia and caution, shi ing inevitable intra-bureaucratic debates in favor of more robust preventive action. These three themes formed the heart of the task forces argument: genocide and mass atrocities threaten U.S. national interests as well as our values, these episodes of systematic violence can be prevented, and to do so will require clear policy and a more systematic process for cra ing U.S. government action. The task force proposed "a combination of creating systems to institutionalize eective early responses at the working level and demonstrating presidential priority to facilitate high-level a ention when necessary (p. 3). The bulk of the task forces report delved into detail in the domains of each expert group, assessing the core objectives, major challenges, readiness to meet the challenges, and concluding with specic recommendations. Before turning to the chapters corresponding to the ve expert groups, however, the report dedicates a chapter to leadership, which it calls the indispensable ingredient. IV. Discussion of ndings and recommendations across the major domains Leadership Nothing is more central to preventing genocide than leadership, according to the task force. Perhaps this is unsurprising coming, as it did, from a group of individuals who previously held senior positions in the U.S. government. Yet, the importance of leadership was a recurrent theme in our consultations with current and former ocials, from the working level to the most senior. The crux of the argument about leadership from the top is that demonstrable presidential commitment to an issue like preventing genocide sends a signal throughout the U.S. government bureaucracy and to the international community. Clear presidential priority, though not a panacea, tends to tilt internal and external debates in favor of more robust action. Since this is a general rule of American politics, however, calls for greater presidential priority to a host of issues are virtually omnipresentall the more so in the period surrounding a presidential transition. Leadership does not end with the White House. Members of Congress and its commi ees have the ability to play a major role in an issue such as genocide prevention, through both their formal powers and their less formal political inuence. The
task force appealed to Congress to call a ention to situations at risk of genocide and exercise its oversight responsibilities with the administration. In addition, the report called on Congress to appropriate additional funds for programs to reduce risks of mass atrocities, including exible funds for urgent use to halt escalating genocidal crises. The American people at large set the political context in which Congressional and executive leaders make decisions, thereby exerting their own leadership role. The relationship may not always be direct, but government leaders generally a end more to issues where the people have made their voice heard. Mass popular political mobilization is by no means the only way to get an issue on the foreign policy agenda, but it is one potential pathwayand one that has been largely lacking in the past, as Samantha Power persuasively documented in A Problem from Hell.11 Therefore, the task force urged the American people to build a permanent constituency for the prevention of mass atrocities and genocide. The centrality of leadership to preventing genocide is surely not an exclusively American phenomenon. Regardless of the institutional structure of any government, elected ocials and senior executives set priorities in ways that aect the likelihood of vigorous action to prevent genocide. As important as norms, structures, and policies are, genocides are ultimately prevented by the actions of individuals. Thus, leadership is a universal requirement to advance global eorts to prevent genocide. Early warning: assessing risks and triggering action Too frequently the challenge of early warning is summarily dismissed by observing that there are always warning signs that could have been acted on before a genocide. But the ability to nd warning signs in retrospect does not mean that an eective system was in place to generate timely and accurate warnings and prompt action in response to them. The task forces early warning expert group focused on recommendations designed mainly for two ends: to improve the accuracy of early warning analysis and to strengthen the linkage between analysis and action. If implemented, the recommendations would also bring greater a ention to the risks of mass atrocities in the U.S. policy community, which would in turn help promote more preventive action.
In my view, the recommendation related to early warning that would have the greatest impact is the call for the national security advisor to make warning of genocide or mass atrocities an automatic trigger of policy review. This proposal is designed to counteract one of the most serious problems we found: beyond the initiative of individual ocials, there exists no regular impetus for policy discussions in response to warnings issued by the intelligence community or coming from diplomats at post. The lack of a robust warning-response mechanism appears to be a signicant problem in other governments and international organizations as well, so this recommendation for the United States should be adaptable to other se ings. Since one is hard pressed to articulate policy actions that would make a positive dierence in all cases of potential genocide, the task force proposed requiring a review of U.S. policy related to the country or situation in question by senior ocials in an interagency meeting. By forcing senior policymakers to face the rising threat and take a decision about further U.S. actionor recommend actions to their superiorsan automatic policy review would ensure that warnings are always responded to, even if just by deciding that current U.S. actions are adequate. The decisionforcing mechanism in itself should increase the likelihood that policymakers would take additional preventive steps since they will not be allowed to turn away from the dangers of inaction.12 Early prevention: engaging before the crisis To be fully eective, a prevention regime cannot rely completely on mounting timely responses to crises. Upstream strategiesto reduce risks of mass atrocities in places where underlying vulnerabilities or risks can be discerned but mass violence is not imminentare equally important. Successful early prevention promises to prevent crises in the rst place, before they threaten to escalate toward mass violence, and it should ease the crisis response job by reducing the number of crises that need to be managed simultaneously. Among the challenges to early prevention strategies, two stand out. First, it is impossible at a pre-crisis
12 The premise here is partly politicalthat a decision-forcing mechanism promotes political accountability for senior officials decisionsand partly based on findings from behavioral economics, which has demonstrated the potentially powerful effects of choice architecture. See, for example, Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New York: Penguin Books, 2009).
11 Samantha Power, A Problem From Hell: America and the Age of Genocide (New York: Basic Books, 2002).
stageat least with current ability to assess relative risksto distinguish just a few states that are much more likely than others to experience genocide or mass atrocities. As the task force wrote, "Watch lists of countries 'at risk' can be long, due to the diculty of anticipating specic crises in a world generally plagued by instability" (p. 38). Policymakers are extremely unlikely to devote serious a ention to a dozen or more semi-stable states to reduce the possibility of mass atrocities down the line. The second and related challenge is that every at-risk situation is unique and therefore demands a strategy that is tailored to the specic dynamics of that context. The task force described three broad areas of focus for pre-crisis prevention strategies: leadership, institutions, and civil society. In each, the report details specic activities that the U.S. government can conduct or support to reduce risks of genocidal violence. This description of the broad array of potentially useful early prevention activities underscores the task force's theme about the false framing of the basic policy choice as being between inaction and military intervention. It has been suggested, however, that this broad set of policy tools amounts to nothing more than a wish list of current foreign-policy nostrums.13 Admi edly, there are few if any truly new policy tools oered. The argument is primarily that upstream prevention can be signicantly more eective by using these existing tools more strategically and in greater amounts. The chapter, therefore, outlines a vision of how to enhance early a ention on reducing genocidal risks within the U.S. government. The rst element is expanded funding by the U.S. Congress for targeted genocide prevention projects. New monies should be packaged into a genocide prevention initiative to "ensure appropriate visibility, cohesion, and priority for crucial pre-crisis genocide prevention eorts" (p. 51). Just as important is a way to deploy new funds strategically, linking them with risk assessments, crisis prevention plans, and coordinating them through an interagency process. Furthermore, new funds would empower a new interagency commi ee, providing a tangible incentive for all relevant executive agencies to participate. The chapter on early prevention ends with a recognition that the recommended reforms might not fully resolve the problem of having too many highrisk places to engage in serious preventive eorts in
13 Scott Straus (2009) A Step Forward. Genocide Studies and Prevention 4(2): 188
all of them. Where selectivity based on factors beyond estimation of risk per se is unavoidable, the report suggests considering where the U.S. government has the greatest inuence and where the costs of failure would be greatest. This highlights the potential benets of negotiating a kind of informal global division of labor based on the particular interests and capabilities of various international actors. Preventive diplomacy: Halting and reversing escalation The chapter on preventive diplomacy focused on how the U.S. government could more eectively respond to signs that underlying risks of genocide have begun to move from latent vulnerability to near term possibility. This entailed both organizational process issues related to crisis management as well as guidance on the shape of preventive strategies that are more likely to succeed. As noted above, the diversity of potentially genocidal crises and the need for a carefully tailored strategy makes it dicult to prescribe specic diplomatic strategies. Thus, the focus of this chapter tilted somewhat towards recommendations to make the internal operation of the U.S. government work be er. The task force found that the U.S. government has a wide range of tools potentially at its disposal to deescalate a crisis, but lacks eective decision making and contingency planning mechanisms dedicated to prevent mass atrocities. The core recommendation to respond to this problem was to create a standing Atrocities Prevention Commi ee (APC) at the National Security Council. The APC would serve as a critical mechanism for linking warnings and responses, coordinating policy across the U.S. government, engaging in planning to enhance preparation for potential future contingencies, and gleaning lessons from past experience. The APC would oversee regular preparation of genocide prevention and response plans for high-risk countries, thereby reversing the prevailing tendency for ad hoc responses only a er crises have emerged. This proposal was modeled on the Atrocities Prevention Interagency Working Group (APIWG) that existed at the end of the Clinton administration with two signicant renements.14 First, unlike the APIWG, the APC would be co-led by a senior NSC ocial, creating a direct line to the White House. Second, sta support for the APC would come from a proposed new NSC directorate on crisis prevention
14 David J. Scheffer, Speech at the Conference on Atrocities Prevention and Response at the United States Holocaust Memorial Museum (October 29, 1999)
and response, thereby connecting atrocities prevention to a broader and more mainstream national security domain. The basic idea behind the specic proposal to create an APChaving a standing policy commi ee dedicated to atrocities prevention couched within the central national security decision making structure should apply equally to other governments and international organizations. Having APC-like structures in multiple governments should not only improve decision making within these governments, but also enhance opportunities for intergovernmental cooperation. Employing military options Military action is probably the most commonly invoked response to the recurring problem of genocide, at least in the U.S. public and policy debate. As discussed earlier, however, the task force sought to highlight the range of non-military measures that could contribute to an eective genocide prevention strategy. While recognizing "there is no military 'solution' to genocide," the task force devoted one of its expert groups to consider how military assets can be used to contribute to comprehensive prevention strategies. The central analytic nding regarding military options was, "The United States does not face an all-ornothing choice between taking no military action and launching a major intervention" (p. 73). Yet, preventing or responding to genocide and mass atrocities does represent a distinct set of challenges to military action. The report described "graduated military options for genocide prevention and response," ranging from non-coercive measures such as enhancing capacity of legitimate local security forces to coercive measures like disrupting supply lines and enforcing no-y zones. Owing to the unique challenges of military strategies to prevent or respond to genocide, the task force urged the Defense Department and military leaders to develop military guidance for missions with these objectives. This should include generating high-level doctrine, plans, and training modules. The task force also recommended that the U.S. work to enhance the capacity of organizations that o en serve as rstline defense against genocide through peacekeeping operationsi.e., the United Nations and regional organizations such as the African Unionas well as help increase the preparedness of highly capable actors like NATO to provide timely backup if security collapses precipitously.
The chapter on military optionsor any other in the reportdoes not address the question of when the U.S. should deploy its military assets to prevent or halt genocide, either alone or as part of a UN Security Council sanctioned multilateral mission. These decisions are described as "weighty" (p. 75) and as resting "rmly with U.S. political leaders, who must carefully consider the appropriate response in each case" (p. 75). The report hints further that the United States should be willing to consider coercive action outside of situations sanctioned by the UN Security Council: "In the end, however, even if all institutions and organizations prove unable to take eective action, the United States should still be prepared to take steps to prevent or halt genocide...While the United States may face criticism for taking strong action in these cases, we must never rule out doing what is necessary to stop genocide or mass atrocities" (p. 97). These statements along with a lack of clear guidelines about the circumstances that would justify (or even demand) a forceful response by the United States have understandably sparked some concerns, especially with international audiences. The essence of the task forces work on military options, however, is far from the enthusiastic endorsement of U.S. military intervention that some have interpreted. The United States should act to enhance others capabilities so that there are fewer instances when the United States faces the question of taking military action itselfor as Vice President Joe Biden put it at the Munich Security Conference in early 2009, to avoid having to make a last-resort choice between war and the dangers of inaction.15 But since capacity building is a long-term and uncertain endeavor, the United States should simultaneously develop the strategic military thinking and planning to ensure that civilian leaders are given the best military advice and the U.S. military is ready to pursue these missions if called upon. International action While the task force focused squarely on how the U.S. government could improve its capacity to prevent genocide, it never questioned the importance of international cooperation. "Partnerships with a range of international actors are not just desirable," the task force wrote, "they are a necessary
15 Vice President Joe Biden, Remarks at the 45th Munich Conference on Security Policy (February 7, 2009). Available online at: http://www.whitehouse.gov/the_press_office/RemarksbyVicePresidentBidenat45thMunichConferenceonSecurityPolicy/
requirement for successful eorts to counter genocide and mass atrocities in the future" (p. 94). The task force chose not to make recommendations to actors beyond the U.S. government, but to urge actions by the U.S. government in its relations with other governments, intergovernmental organizations, and non-governmental actors. This chapter also addressed issues related to international norms and institutions, such as the "responsibility to protect" and the International Criminal Court. For many across the globe, the principal answer to the question of international cooperation is the United Nations system. The UN was, of course, created in the a ermath of the Holocaust, the UN Charter gives the Security Council "primary responsibility for the maintenance of international peace and security," and the Genocide Convention was adopted by the UN General Assembly in just its third session. More recently, in 2004 the Secretary-General appointed a Special Adviser on the Prevention of Genocide, and in 2005 the world summit on the occasion of the 60th session of the General Assembly endorsed the "responsibility to protect" populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. The task force report acknowledged the importance of the UN system and made recommendations to strengthen its eectiveness. Specically, they called for the U.S. government to support eorts to elevate the priority of genocide prevention across the UN system and to negotiate an informal agreement among the permanent members of the Security Council to refrain from threatening or using the veto in cases of imminent genocide or mass atrocities. The former recommendation included detail related to the Secretary-General's oce, the human rights system, and UN peacekeeping. Yet, the task force concluded that eorts at the UN would be insucient to the need for enhanced international cooperation. This judgment reected a view that international cooperation needs to extend to all actors with signicant inuence on situations at risk of mass atrocitiesincluding NGOs and the private sector, which are dicult to engage through a system of and for governments. It also reected a diversity of views on the overall eectiveness of the UN system in tackling genocidal crises and the limits on potential progress at the UN. Thus, the task force concluded, "Despite a range of potential partners, there currently exists no coherent framework for U.S. government engagement
with other governments, international and regional organizations, and NGOs to facilitate eective and early action to prevent genocide and mass atrocities" (p. 104). They recommended "a major diplomatic initiative to create among like-minded governments, international organizations and NGOs a formal network dedicated to the prevention of genocide and mass atrocities" (p. 104). The vision was that such a network would establish shared principles and facilitate rapid and eective cooperation on specic cases of concern. The last issue taken up in the chapter on international action is the International Criminal Court. To the disappointment of manyperhaps especially Europeansthe task force did not recommend that the United States take immediate steps to join the court. Rather, it urged continued cooperation on a case-by-case basis, which had become the de facto stance of the Bush administration by 2008. However puzzling or frustrating this compromise proposal might be to advocates and critics of the court alike, it reects some strongly divergent views across the U.S. political spectrum. This political reality has since been reected in the broadly similar recommendations of a separate task force convened by the American Society of International Law focused entirely on U.S. policy toward the ICC.16 V. Report release, reaction, and response To assess the impact of the Genocide Prevention Task Force, one should start by using the task forces own goals. This means answering three questions: To what extent has the task force report helped stimulate debate about preventing genocide and its place among U.S. national priorities? To what extent would the reports recommendations improve the U.S. governments performance in preventing genocide, while also being realistic and feasible? To what extent have the reports recommendations been implemented? At the time of writingjust more than a year on from the public release of the task force reportwe can identify some tangible actions in response to the reports recommendations, but also a number of central GPTF recommendations yet to be acted on. It is equally important to note that the situation is still evolvingthe task force recommendations appear to retain some currency in Washington policy
16 U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement. Report of an Independent Task Force convened by the American Society of International Law. William H. Taft IV and Patricia M. Wald, co-chairs. Available online at: http://www.asil.org/files/ASIL-08-DiscPaper2.pdf
debatesand not all information about government actions is available. Therefore, it would be unwise to a empt to construct a detailed report card, but one can make some observations about the reaction and response of key audiences. The Obama administration The task force asked the incoming president to demonstrate that preventing genocide is a national priority. Whether President Obama has done this is ultimately a judgment call. But one can observe that he has not taken most of the tangible steps that the task force recommended as ways of demonstrating commitment. These include an early executive order; focus on genocide prevention in the inaugural, State of the Union, or UN General Assembly addresses; and a presidential directive on genocide prevention. In my view, each of these specic recommendations remains relevant and constructive. Despite the lack of denitive presidential action proposed by the GPTF, there are several signs of progress by the administration: Personnel appointments: President Obama has selected a number of individuals associated with personal dedication to genocide prevention to senior positions: most notably including Susan Rice as Permanent Representative to the UN and Samantha Power as Senior Director for Human Rights and Multilateral Aairs at the National Security Council. Other key subcabinet posts have been lled more recently: Assistant Secretary of State for Democracy, Human Rights, and Labor Mike Posner was conrmed in late September 2009; the Ambassador-at-Large for War Crimes Issues Stephen Rapp was conrmed in August 2009; and the State Departments Legal Advisor Harold Koh (member of a GPTF expert group) was conrmed in late June 2009. All three are potentially important for promoting the genocide prevention agenda, but it largely remains to be seen how these ocials will translate their work before joining the Obama administration into their new roles. Rhetoric: President Obama has not been silent on the subject of genocide and mass atrocities. In commemoration of the Holocaust Days of Remembrance last April, President Obama spoke of his commitment as President to [do] everything we can to prevent and end atrocities like those that took place in Rwanda, those taking place in Darfur.17 In his Nobel re17 President Barack Obama, Remarks at the Holocaust Days of Remembrance Ceremony (April 23, 2009). Available online at: http://www.whitehouse.gov/the_press_office/Remarks-bythe-President-at-the-Holocaust-Days-of-Remembrance-Ceremony/
marks, the president stated, More and more, we all confront dicult questions about how to prevent the slaughter of civilians by their own government, and declared, We must develop alternatives to violence that are tough enough to change behavior for those who violate international law by brutalizing their own people. When there is genocide in Darfur; systematic rape in Congo; or repression in Burma there must be consequences.18 Other senior administration ocials have spoken about the importance of preventing genocide and lauded the task force report. Vice President Biden gave a speech at an event hosted by USHMM last April echoing key themes of the task force report, including asserting that preventing genocide is a high national security priority for the United States.19 U.S. Ambassador to the UN Susan E. Rice commended the authors and sponsors of the task force at a December 2009 event at USHMM, calling the report a powerful and thoughtful and comprehensive treatment of a very important issue, whichI certainly nd valuable as a policymaker.20 In December 2009, in a speech about democracy and human rights, Secretary of State Clinton said, "We will work to identify ways that we and our partners can enhance human security, while at the same time focusing greater a ention on eorts to prevent genocide elsewhere [i.e., beyond Sudan]."21 The same week, Assistant Secretary of State for Democracy, Human Rights, and Labor Mike Posner wrote in a public online discussion, "Last Friday I met with 30 experts on this issue at the Holocaust Museum. The museum was one of the sponsors of the Genocide Prevention Task Force. I received a number of very good recommendations from this group on how to implement the recommendations in the report.
18 President Barack Obama, Remarks at the Acceptance of the Nobel Peace Prize (December 10, 2009). Available online at: http://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-prize 19 JTA, Biden: Preventing genocide a security priority (April 23, 2009). Available online at: http://jta.org/news/article/2009/04/23/1004589/biden-preventing-genocide-shouldbe-national-security-priority 20 Susan Rice, Remarks at U.S. Holocaust Memorial Museum (December 10, 2009). Available online at: http://www.ushmm. org/genocide/analysis/details.php?content=2009-12-10 21 Hillary Rodham Clinton, Remarks on the Human Rights Agenda for the 21st Century (December 14, 2009). Available online at: http://www.state.gov/secretary/rm/2009a/12/133544. htm
We are now working with the National Security Council on next steps; this is a high priority."22 Policy action: To have signicant impact, this kind of political rhetoric must be matched with specic actions to improve the structure and process of U.S. government. Unsurprisingly, these kinds of actions have tended to be slower coming; in fact, the GPTFs central structural proposalto create a standing interagency Atrocities Prevention Commi eeseems to be currently under consideration by the Obama administration, as Assistant Secretary Posner hinted. The most denitive response by a senior administration ocial to the GPTF recommendations has come from Director of National Intelligence Dennis Blair. In response to a le er from Sen. Dianne Feinstein, chair of the Senate Select Commi ee on Intelligence, Director Blair commi ed to act on most of the task forces recommendations on early warning, including preparing a coordinated national intelligence product addressing countries at risk of genocide in the next three-to-ve years, developing genocide-related training modules for analysts, and agreeing to highlight countries at risk of genocide in his annual threat assessment testimony to Congress. It does not appear that any of these commitments has come to fruition fully as of the time of writing. But they represent remarkable resonance with the task force recommendations from a key senior ocial. Congress As Sen. Feinsteins le er to Director Blair demonstrates, members of Congress can exert signicant inuence via the oversight role they play on the executive branch. There are at least two other examples of this kind of Congressional inuence, though neither has yet reached conclusion. Last spring Rep. Howard Berman, the chair of the House Foreign Aairs Commi ee, inserted a section into the Foreign Relations Authorization Act that nds the task force report oers a valuable blueprint for strengthening United States capacities to help prevent genocide and mass atrocities and requires the Secretary of State to submit a report outlining specic plans for the development of a government-wide strategy
22 Mike Posner, Online Chat: Human Rights Agenda for the 21st Century, U.S. Department of State. Available online at: http:// www.facebook.com/topic.php?uid=15877306073&topic=1208 3#topic_top
and the strengthening of United States civilian capacities for preventing genocide and mass atrocities against civilians.23 The bill passed the House in June, but still awaits action by the Senate, which is reportedly exploring options for including language on genocide prevention as well. Sen. Russ Feingold and Sen. Feinstein wrote a le er to National Security Advisor James L. Jones to inquire what steps [he] and the Obama administration are taking with respect to preventing mass atrocities. The Senators specically inquired whether Gen. Jones planned to create an Atrocities Prevention Commi ee or similar working group in the National Security Council. As of the time of writing, Sens. Feingold and Feinstein had not received a formal reply from the administration. In addition to their oversight responsibilities, Congress has the exclusive power to appropriate monies to the executive branch. The consolidated appropriations bill passed in December 2009 included provisions that responded to some of the GPTFs recommendations. Specically, the bill provided $50 million in a new Complex Crises Fund, which is consistent with (if for somewhat broader purposes than) the task forces recommendation for a fund of the same size for urgent o-cycle projects. The same bill appropriated additional funds aimed at enhancing diplomatic capacity and readiness money for 745 new positions at State and 300 at USAID, plus $150 million for the Civilian Response Corpsin line with the task forces recommendation to enhance capacity to engage in urgent preventive diplomatic action.24 The non-governmental sector Given the diversity of individuals and groups that comprise what could broadly be called the nongovernmental sector, it comes as no surprise that some of the most enthusiastic praise and some of the harshest criticism can be found here. The community of NGOs and activists advocating around conict prevention, civilian protection, and resolution of the crisis in Darfur have wholeheartedly embraced the GPTF recommendations. More than 10,000 individuals have signed an electronic le er sponsored by the Save Darfur Coalition urging President Obama to implement the task forces
23 Sec. 1002, Report on United States Capacities to Prevent Genocide and Mass Atrocities, in H.R. 2410, Foreign Relations Authorization Act, Fiscal Years 2010 and 2011 24 Division F State, Foreign Operations, & Related Programs in the FY2010 Consolidated Appropriations Act
recommendations. An NGO coalition spearheaded by the Friends Commi ee on National Legislation, Oxfam America, the Genocide Intervention Network, Human Rights First, and others has adopted a common advocacy strategy for 2010 with the task forces proposals forming the heart of its agenda. The American Bar Associations House of Delegates formally endorsed the Task Force report at its annual meeting in August 2009. The ABA Center for Human Rights is now developing ideas for how the ABA can promote the task forces recommendations. The Montreal Institute for Genocide and Human Rights Studies released a report in the fall of 2009, Mobilizing the Will to Intervene: Leadership and Action to Prevent Mass Atrocities, which made recommendations to the Canadian and American governments, drawing heavily from the Albright-Cohen report.25 Beyond the community of activists, several former ocials and other highly distinguished people have praised the report, including former President Bill Clinton, former U.S. secretaries of state James A. Baker III and Warren Christopher, UN SecretaryGeneral Ban Ki-Moon, and international jurist Richard Goldstone. In addition, the task force report was discussed in positive terms in The Economist26 and on the New York Times editorial page.27 The one notable exception to the nearly unanimous praise for the task forces work has been among genocide scholars. At least as measured by the scholars who published commentaries in Genocide Studies and Prevention, scholarly opinion about the report is decidedly mixed, including some strident critics. It is not altogether surprising that several scholars found grounds to criticize the task force report. Scholars are trained to critique concepts, scrutinize historical claims, highlight inconsistencies, and generally poke holes in arguments. What may be more surprising is the extreme lack of consensus among scholars about the Albright-Cohen report: summary judgments ranged from a decisive step forward in the debate (Straus),28 coherent and well-argued (Semelin),29 a welcome addition
(Mennecke),30 to interesting but confusing (Feierstein),31 a step in the wrong direction (Schabas),32 huge disappointment (Hirsh),33 a recipe for failure (Kuperman),34 and most provocatively, might in fact provide be er cover for US complicity in or perpetration of future genocides (Theriault).35 Those of us who worked on the GPTF never imagined the task force report would be the denitive word on why genocide occurs or the last set of proposals offered about how to prevent it in the future. Continued debate is, of course, welcome. But all forms of debate are not equally useful. From a policy perspective, the most constructive debate will focus on articulating and rening a set of recommendations that are feasible yet would still have a major positive impact on U.S. action to prevent mass atrocitiesand developing a political strategy to promote implementation. As in many other elds, there continues to be a considerable gap in genocide studies and prevention between these primary concerns of the policy community and the theoretical, conceptual, and historical debates that tend to dominate the academic literature. Most optimistically, the Albright-Cohen report and subsequent debates could provide the impetus for greater and more productive interaction between the policy and academic communities. VI. Contribution to the global discourse While the Albright-Cohen task force had a distinctively American quality, the basic model could be applicable to other governments and intergovernmental institutions.36 It would advance the global discourse on genocide prevention signicantly to have groups of former senior ocials and experts engage in parallel eorts to assess the
30 Martin Mennecke (2009) Genocide prevention and international law. Genocide Studies and Prevention 4(2): 167 31 Daniel Feierstein (2009) Getting things into perspective. Genocide Studies and Prevention 4(2): 155 32 Schabas (2009), 182 33 Herb Hirsch (2009) The Genocide Prevention Task Force: Recycling people and policy. Genocide Studies and Prevention 4(2): 153 34 Alan J. Kuperman (2009). Wishful thinking will not stop genocide: suggestions for a more realistic strategy. Genocide Studies and Prevention 4(2): 191 35 Henry C. Theriault (2009). The Albright-Cohen report: from realpolitik fantasy to realist ethics. Genocide Studies and Prevention 4(2): 208 36 Martin Mennecke suggests, From a European perspective, one would hope that institutions and actors such as the Imperial War Museum in London, the International Task Force for Holocaust Education, Research and Remembrance, and the Stiftung fr Wissenschaft und Politik in Berlin will engage in similar work to add new perspectives and inspire European leaders. See Mennecke (2009), 167
25 See http://genocide.change.org/actions/view/ask_president_ obama_to_make_ending_genocide_a_priority 26 How to stop genocide. The Economist (December 11, 2008). 27 A policy for preventing genocide. New York Times (December 15, 2008), A36. Available online at: http://www.nytimes. com/2008/12/16/opinion/16tue2.html 28 Straus (2009), 185 29 Jacques Smelin (2009) An international but especially American event. Genocide Studies and Prevention 4(2): 162
capabilities of and challenges to eective action to prevent genocide by other major international actors. Undoubtedly, the shape and results of such eorts would dier from country to country, or organization to organization. For example, an analogous task force in some countries would focus on reducing risks domestically or in the immediate neighborhood, whereas others would tend to focus on global action. If the global community takes seriously the commitments we have all made to improve our actions to prevent genocide and to put into practice the responsibility to protect, we need much more than political commitments and general agreements about the need to improve warning, to act early, and to respond resolutely to potential genocidal perpetrators. We need practical ideas about how to bring these objectives to fruition in dozens of specic institutional and political contexts. The model of convening a task force of respected former ocials to work together with a group of subject ma er experts is one that should succeed in many places. Another major benet of having a task force develop specic recommendations on genocide prevention is that it gives civil society actors tangible steps to advocate and concrete benchmarks to monitor. As long as the ideas are not reied to the point of rigidity, they also become the basis for serious conversations with current oicialse.g., if you do not agree with the task force's conclusion on this point, what is your alternative strategy? In the end, genocide is a problem far bigger than any one eort could possibly address. Across the globe, we need more a ention to the problem and more action to implement the best ideas available. The GPTF represents one important step forward for the United States and a model that should help advance these goals elsewhere as well.
149
The construction of a global architecture for the prevention of genocide

and mass atrocities
In response to the shock the world experienced when discovering the barbaric murder of millions of Jews perpetrated by Nazi Germany, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. The Genocide Convention as it is widely known - should be considered the rst modern human rights treaty, adopted only one day before the Universal Declaration of Human Rights, which enshrined fundamental principles and common standards of achievement for human civilisation. Some must have believed in 1948 that the unthinkable crime of genocide would never recur, and for some time the Convention was truly a forgo en international instrument. Events in Cambodia, Rwanda and Bosnia rehabilitated the Convention, whose application and interpretation have become a ma er of urgent a ention. The gaps in the Convention, which became evident, are perhaps only oversights of optimistic negotiators mistaken in the belief that they were erecting a monument to the past, rather than a tool to address future challenges and to shape the future of global justice. If their naivet may be forgiven, the general failure of the international community to learn from the lessons of the 61 years since adoption cannot. Prevention is the most eective form of protection for vulnerable parts of the society. However, building a culture of prevention is not an easy task: the costs of prevention have to be paid in the present,
1 Enzo Maria Le Fevre Cervini is Associate at the Center for International Conflict Resolution Columbia University and Coordinator of research and development at the UNIMED the Mediterranean Universities Union. In 2008 he has been appointed Special Advisor of the Hungarian Ministry of Foreign Affairs with the task of coordinating the creation and development of the Budapest Centre for the International Prevention of Genocide and Mass Atrocities. Istvn Lakatos is the Human Rights Ambassador of the Republic of Hungary and has been a career diplomat since 1993. In July 2008 he was nominated Ambassador - at - Large for Human Rights, Deputy Director-General of the Department of International Organizations and Human Rights, Head of the Human Rights Section. His appointment followed Hungary decision to initiate a Feasibility Study on the creation of the International Centre for the Prevention of Genocide and Mass Atrocities to be based in Budapest
while its benets may lie in the more or less distant future. The failure of preventing the massive crimes of the last century has showed to be costly not only in terms of loss of lives, but also in aecting people and culture that are still dealing with the past and the lack of justice. This has stimulated the conviction that it is now time to invest into the construction of a reliable preventive framework for avoiding the recurrence of the hideous crimes of the past century. The failures of the last century insist on the need to continue the eorts in lling the gap between the policies of a prevention of genocide and the establishment of the necessary international mechanisms for eective operations. The progression of events towards genocide is gradual and the period from initial threat to full genocide o en oers ample warning time for the international community to take preventive action. The international community should make use of this fact to increase the eciency of its activities in this eld. The establishment of an institutionalized mechanism able to promote and/or coordinate an international network of players and stakeholders closely linked to both global and regional decision making bodies is a prerequisite for eective actions. The initiative of the Hungarian Government to establish an international centre specically dedicated to the prevention of genocide and mass atrocities builds on the work of the steering group established in 2006, which in the past explored possible steps towards a strengthening of the EU capacities in the prevention of mass atrocities and genocide. Chaired by Dr. David Hamburg, President Emeritus of the Carnegie Corporation of New York, the group was composed of representatives of the Carter Center3, the Folke Bernado e Academy4, the
3 Founded by former U.S. President Jimmy Carter and former First Lady Rosalynn Carter, the Atlanta-based Carter Center is committed to advancing human rights and alleviating unnecessary human suffering. The Folke Bernadotte Academy is a Swedish government agency dedicated to improving the quality and effectiveness of international conflict and crisis management, with a particular focus on peace operations.
Madariaga European Foundation5 and a personal representative of Javier Solana, the former High Representative/Secretary General of the EU. At its nal meeting in Atlanta, in July 2006, the group produced a proposal that was presented to Javier Solana, recommending the creation of an International Centre for the Prevention of Genocide and Crimes against Humanity. In July 2007, the EU High Representative for the Common Foreign and Security Policy invited the Madariaga European Foundation to explore the possibility of developing an action plan for a coordinated European strategy on the prevention of mass atrocities and genocide, towards fullment of the Responsibility to Protect principles. Following this call, the Madariaga European Foundation, along with the Folke Bernado e Academy, launched the preparatory phase of a European Programme for the Prevention of Mass Atrocities and Genocide in September 2007. The purpose of the Programme was to investigate future steps to enhance and sustain capacity for genocide prevention at the EU level, and to bring Member States and institutions into a common eort. Using the available body of knowledge and fostering links with UN agencies, regional organisations, academia, civil society, and international judicial institutions, the intention consisted in the elaboration of a framework of action to ensure pro-active, inclusive, and respectful policies to eectively counter deadly and genocidal violence before its full emergence. The Ministry of Foreign Aairs of the Republic of Hungary at the First Budapest Human Rights Forum on the 28th of August 2008 announced the decision to prepare a feasibility study on the establishment of an International Centre for the Prevention of Genocide and Mass Atrocities in Budapest. The Ministry appointed Ambassador Istvn Lakatos, Ambassador at Large for Human Rights, and Mr. Enzo Maria Le Fevre Cervini, Special Advisor to the Ministry and Associate at the Center for International Conict Resolution of the Columbia University, to coordinate the eorts of the Ministry into the elaboration of the feasibility study. In July 2009, at the Second Budapest Human Rights Forum, the task force in charge of the feasibility study underlined three major assessments to indicate the need, and that supported the initiative of the Hungarian Government to establish a Centre for the
5 The Madariaga College of Europe Foundation, chaired by Javier Solana, has built a strong reputation in Brussels and Europe as a prime institution focusing on conflict prevention.
Prevention of Genocide and Mass Atrocities in Budapest. The major assessment is that only 140 countries are signatories or state parties of the Convention for the Prevention and Punishment of the Crime of Genocide, meaning that more than 50 are not. Since genocide is deemed the crime of the crimes this shows how necessary it is, even more than 60 years since the Convention was signed, to pursue the construction of a worldwide consensus on the necessity to tackle the issue of genocide. The second assessment is that state members of the Convention and the major regional organizations, which today represent the key players of the International Community, lack dedicated instruments to prevent genocide and mass atrocities. This has been also observed in the case of the United States, by the outstanding report Preventing Genocide, co-chaired by Madeleine Albright and William Cohen.6 The resources and programmes dedicated by the international community for the preventive approach are today very limited and sometimes not properly used. The programmes devoted to the prevention of genocide only rely on the initiative of few dedicated NGOs and as such there is no institutional capacity or resources solely dedicated to the prevention of genocide. The limited resources are dedicated to a vast number of projects that fall under the umbrella of conict prevention, which embraces a large number of programmes with li le policy planning to guide them in a combined eort to tackle specic emergencies. Governments and international organizations usually set the majority of the resources in post-conict stabilization and reconstruction projects which consume lots of resources. The task of dealing with what occurred usually falls to an unidentied project that normally relies on victims, refugees or survivors. In the last few years, various projects have codied the necessity to educate governmental and international or regional organizations ocials to prevent genocide. Results of these projects have also showed how training ocials on genocide issues, or engaging them into planning genocide prevention policies,
6 Jointly convened by the United States Holocaust Memorial Museum, The American Academy of Diplomacy, and the United States Institute of Peace, the Task Force began its work with the goal of generating concrete recommendations to enhance the U.S. governments capacity to recognize and respond to emerging threats of genocide and mass atrocities.
drives not only what could be called a personal enthusiasm to acknowledge the issue, but also a personal commitment to address these issues as daily basis working activities. The third assessment has been dened during meetings of the Hungarian Task Force with UN ocials. The capacities of the UN in preventing genocide, which fall today under the mandate of the Special Advisor for the Prevention of Genocide and the Ofce of the High Commissioner for Human Rights are, despite their work, still weak. This weakness is due to their double function of raising the ag on a genocidal-like situation and assessing whether a genocide is really occurring in a particular country or region. This double mandate gives the UN limited power in addressing the threats of genocide, with the result of not empowering those who should be in the frontline of the prevention of genocide and mass atrocities. These three major assessments gave the Task Force the justication to explore where the gap in the chain of prevention is and revealed the necessity to identify a solution in the creation of an internationally recognized mechanism such as the Centre that Hungary is envisaging. Today it could be said that the punishment perspective of the Convention has been empowered and institutionalized not only by the Rome Statute and the subsequent creation of the International Criminal Court but also with the creation of the Special Tribunals in Former Yugoslavia and Rwanda and the Special Courts in Cambodia and Sierra Leone. Yet simultaneously there is no capacity for the identication of genocide threats. The oce of the Special Advisor for the Prevention of Genocide only has a mandate to coordinate the eorts of the UN into the prevention of genocide and cannot serve as an institutionalized body that actually empowers the preventive part of the Convention. The prevention aspect needs to be empowered and sustained to be independent and eective. The weak point of the prevention framework is not the capacity to warn the international actors on something that is occurring in a certain region or a specic country. Many early warning mechanisms have the capacity to identify genocidal threats. In order to address why prevention doesnt occur despite early warning mechanisms, the Five Point Action Plan to prevent genocide issued by the UN Secretary General in April 2004 and the Annual Report of the UN Secretary General on the implementation of the Ac-
tion Plan, published in 2008, identied numerous gaps. Those gaps include the need for early and clear warning of situations that could potentially degenerate into genocide as well as swi and decisive action along a continuum of steps (italics in the original) where advancement is required. Also according to the UNSG Annual Report, a major challenge to address the threats and risks in the context of genocide and mass atrocities is the lack of institutional capacity. There is a need of establishing new structures, or "focal points," in various regions of the world, with a capacity for both operational and structural means of prevention. These entities should collect and assess information, monitor the situations by specic tools, recognize the risks of genocide and mass atrocities, and prepare recommendations on viable options for decision makers to act with a view of preventing the escalation of fragile situations. The Hungarian initiative for the establishment of the Budapest Centre for the International Prevention of Genocide and Mass Atrocities shall represent a new approach in developing and institutionalizing the preventive aspect of the Genocide Convention. When it comes to the prevention of genocide and mass atrocities, one of the major impediments eciency is the lack of institutional capacity. Such a Centre could stimulate worldwide cooperative eorts in the next few years to establish a well functioning system of prevention through a more dynamic and systematic approach of the early action mechanisms already existing. The Budapest Centre for the International Prevention of Genocide and Mass Atrocities could substantially narrow the existing gaps between early and clear warning and swi and decisive action as it was acknowledged in the 2008 Annual Report of the UN Secretary General on the implementation of the Five Point Action Plan to prevent genocide. The Centre shall be an independent body with special links to UN institutions and agencies, in particular with the Oce of the Special Advisor for the Prevention of Genocide and the Oce of the High Commissioner for Human Rights. Additionally, the Centre will foster relationships with Regional and Sub Regional organizations such as the European Union, the African Union, the OSCE, the Organization of American States, the ASEAN, the ECOWAS, the IGAD, the SADEC and international and local NGOs that would oer complementary strengths and cooperative opportunities. The Centre shall become a catalyst for relevant information and early warnings coming from various
sources, and a research and analysis mechanism to elaborate and convert them into pertinent policy recommendations for the international community. To achieve this goal, the Centre shall solicit the invaluable support of the United Nations and its Member States in its establishment and operation. The role of the Centre is to a empt to construct the institutionalization of the preventive framework of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. The Centre would be an initiator of deep reection on the prevention of genocide and mass atrocities and a source and physical place where studies and discussion in this respect may be held. The capacities of this new institutionalized mechanism shall lay in the competence of international experts in the prevention of genocide and the analytical knowledge of a multicultural sta, mainly coming from Africa, Asia and Latin America, capable to produce analysis and research outcomes to advice the international political leadership on the prudent steps that can be taken to minimize the possible outbreak of genocidal violence. In 2008 the Ministry of Foreign Aairs of the Republic of Hungary has adopted a human rights concept for a more visible and ecient human rights diplomacy. This new human rights concept was prompted by the fact that in 2004 Hungary became member of the European Union, a membership that requires a much broader scope of activities in the eld of human rights. Besides traditional human rights priorities, like minority protection, or civil and political rights, genocide prevention shall have an important place on our human rights agenda. The fact that several humanitarian organizations (the United Nations High Commissioner for Refugees, Regional Oce and Global Service and Learning Centre, the International Organization for Migration Regional Oce, International Federation of Red Cross and Red Crescent Societies European Zone Oce) have decided to bring their regional or administrative centres to Budapest provides an important network for the future of the Centre to receive rst hand information and to mobilize the international community on urgent cases. The fact that most of these humanitarian organizations are also working in the countries of the Balkans makes their role potentially even more important in view of the still fragile political situation in certain parts of that region.
The fact that Hungary does not have the burden of a colonial past and has a good or at least a neutral relationship with countries in Africa, Asia, or Latin America would help the Centre to be recognized in these regions. The lack of active political or economic engagement by Hungary in most of the countries that could fall under the scope of activities of the planned Centre makes Budapest as an ideal place for a Centre that address such a sensitive issue as genocide prevention. The Centre shall have a very positive eect on the whole region by disseminating the culture of dialogue. The Centre will also emphasise the importance of knowing each others history, culture, and traditions and through this can contribute to the strengthening of tolerance and mutual understanding in our societies where political extremism is spreading. The legal framework of the Centre should ensure the transparency and accountability of the work of the Centre, which is of paramount importance for donors. The Centre should also be established as an independent legal entity. As regards the legal form of the Centre, a foundation seems to be the best solution under the Hungarian law: the Hungarian Government is politically commi ed to the cause of the Centre but pursuant to the Hungarian state budgetary laws it is not allowed to establish foundations, although entitled to support them. Taking this into consideration, the Centre shall be established by a few internationally recognised academic and research institutions. This would ensure the Centres independence from governments, so that it could operate as a real non-governmental organization. The Centre shall be established as an open foundation so that it could receive donations from anyone who would like to support it. The foundation shall be registered as a public benet organization according to the Hungarian Act on Public Benet Organizations. Besides the fact that non-prot organizations which have been registered as public benet organizations enjoy some advantages of tax allowances and exemptions in many elds, they have to comply with the stringent conditions of the Act which stipulate transparency through the strict rules regarding publicity, state supervision, and conict of interest. Meeting the requirements of transparency is the precondition of the registration of the foundation as a public benet organization and of the beginning of its public benet operation. The Task Force envisaged an approximate budget for the Centre between 2 and 2,5 million Euro for its
yearly functioning. The Task Force recommended that the Centre collect the funding necessary to cover at least the rst three years of functioning of the Centre before its full operability. The funding shall be based on a wide range of donors to assure the internationalization of its mandate. The Centre shall have four major bodies: an Advisory Board, an Executive Board, a Board of Donors, and the Operative Structure. * The Advisory Board shall be composed of 15 prominent experts devoted to the prevention of genocide and mass atrocities. The Advisory Board shall be empowered to give recommendations to the Executive Board and the Executive Director on the Strategic planning of the Centres activities as well as to elect the Director of the Centre in order to ensure its independence. The members of the Advisory Board shall meet at least once a year in Budapest. * The Executive Board shall be composed of at least 5 prominent experts in the eld of genocide prevention. The Executive Board shall prepare the decisions of the Advisory Board and contribute to their implementation in collaboration with the Director of the Centre. * The Board of Donors shall gather representatives of states, institutes, or foundations who nancially contributed to the budget of the Centre. They shall receive annually a brieng about the work of the Centre. It is our hope that this Board shall provide a forum to strengthen the cooperation among countries that consider genocide prevention as a high priority on their agenda. * The Centre and its Operative Structure shall benet from the work of political analysts, genocide prevention experts of all the regions, giving them the chance to deal with their own regions as a member of a truly global sta dedicated to genocide prevention.
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The regional fora: a contribution to genocide prevention from a decentralized perspectve
I. Why regional? From 10 to 12 December 2008, the rst regional forum on genocide prevention was held in Buenos Aires, Argentina. The event, co-organized by Argentina and Switzerland, was intended as the rst one of a series of similar meetings to take place in Africa and Asia in subsequent years. The second forum will be held early March 2010 in Arusha, Tanzania, being co-organized by the same two countries together with the host country. Next year, the three countries wish to take the series to Asia. The objectives of the proposed series of regional forums on the prevention of genocide are to: - analyze existing norms and standards, as well as the jurisprudence of existing mechanisms to sanction and to prevent genocide; - draw on lessons from the dierent regional experiences and views in preventing genocide; - identify political, cultural, religious and legal challenges with a view to formulate recommendations in the eld of the prevention of genocide and support the activities of the UN Special Adviser on the Prevention of Genocide; - sensitize the dierent regions of the world regarding the need to prevent genocide and mass crimes as a rst step towards a network of states willing to be pro-active in this eld. These regional fora respond to the appeal made by both UN Special Advisers on the Prevention of Genocide, Juan Mndez and Francis Deng, who have repeatedly indicated the need to accompany global initiatives on prevention by the continuing eorts of countries in all regions. In light of past and current failures to prevent mass
1 Silvia A. Fernndez de Gurmendi is Judge at the International Criminal Court and the Former Director General for Human Rights at the Ministry of Foreign Affairs of Argentina. She was a legal adviser at the Mission or Argentina to the UN from 1994 to 2000, where she represented Argentina at the Sixth Committee and other legal bodies of the General Assembly and Security Council. She played an extensive an instrumental role in negotiations and set up of the International Criminal Court.
atrocities, it is essential to strengthen the willingness of the international community to act eectively and responsively. For this it seems vital to sensitize more states to the problem. The organization of these meetings in Latin America, Africa and Asia is in itself a welcome expansion since the most visible initiatives in this eld have been taken so far by Western countries. But the regional approach is not only an a empt to expand geographically to a ract more countries to the cause. More fundamentally, it reects the recognition of the advantage of a bo om up approach by which states linked by geographic, historic and cultural bonds engage in an in depth discussion of means to contribute to prevent a global phenomenon. Genocidal acts are a global concern but their prevention requires understanding of the complexity of specic underlying reasons. Regional mechanisms and institutions oer richness and variety, which is a real advantage when dealing with past and ongoing atrocities. This is why it is important that these meetings allow for a combined analysis of global parameters with thorough study of regional experiences and responses. In Buenos Aires discussions recalled global norms and standards as well as judicial and diplomatic practices to prevent and punish genocide. There was some time allocated to an overview of experiences of genocide in Asia Africa and Europe as well. However, a substantial part of the event focused on experiences and perspectives for the future in the Latin American region. II. Why Latin America and Argentina? In light of discussions at the Buenos Aires forum, it was clear that the Latin American region could be a source of good practices, derived from lessons learned from the experience of dictatorial regimes and democratic transitions in the region. The important role played by the regional institutions, in particular the Inter American Commission and the Inter American Court of Human Rights, was recognized during the meeting. Another regional initiative, the UNASUR fact- nding commission, created at the end of 2008 to investigate a
massacre commi ed in Pando, Bolivia, was also analysed as an example of early warning mechanisms that could have a potential impact on genocide prevention. Among other best practices, participants also identied the practical experience of truthseeking activities, including in the eld of forensic anthropology and the protection of archives and memorials and the initiatives of democratic control and security sector reform. Of particular interest was the discussion of the importance of experiences at the regional level, relating to the strong links that exist between the ght against impunity, the imperative of the rule of law and the prevention of genocide. In this sense, the importance of the right to the truth, memory, justice, reparations and guarantees of non-recurrence were highlighted as mechanisms that go beyond retributive justice and that may contribute to strengthening a culture of human rights. In dealing with a legacy of past abuses, countries of the region have given a prominent role to the ght against impunity through the prosecution of those responsible for genocide and other mass atrocities. Argentina has put special emphasis on criminal prosecutions to deal with crimes against humanity, commi ed by the military dictatorship in the 1970s. Since the historic trial of the military regime upon the return to democracy in the early 1980s to the ongoing judicial proceedings, Argentina has put a lot of eort to bring the main responsible party to justice before its national tribunals. Argentina and many other countries of the region are also rm supporters of international criminal justice, as a complementary tool and an indispensable safeguard to state action. Prosecuting the perpetrators has been considered an essential tool of reparation to victims but also an indispensable element for preventing future atrocities. Argentina has endorsed the establishment of ad hoc tribunals by the Security Council and has played a leading role in the process of negotiations and the se ing up of the International Criminal Court. At present, all South American countries are state parties of the Rome Statute. Enhancing the access of individuals, to national and international justice system, to complain against past or ongoing atrocities has also been recognized as an essential preventative tool. This belief in the essential role of justice seems to be widely shared in the region. However, the abundant and rich jurisprudence of the Inter American Commission and Court of Human Rights on
amnesties and pardons also reect the diculties and dilemmas that the region has gone through in its combat of impunity. As it was stressed during the Buenos Aires forum, remarkable emphasis on judicial remedies in the region does not preclude recognition for the need of means of prevention on other fronts in order to strengthen the protection of vulnerable populations and ensure early warning for atrocities. III. Why states? During the forum, several panels assessed not only the responsibilities of states but the responsibilities of international organizations and non-state actors in preventing genocides as well. This included a discussion of the role of the media, religious institutions and the business sector. The organizers deployed all eorts, however, in order to secure the participation assistance of state representatives with clear competencies related to the prevention of genocide and mass atrocities and with the ability to intervene in the political and operational debates. Academics and international experts with practical experience or functions in the eld were invited to share their thoughts and fuel the debates. Securing substantive state participation was a top priority, since the main objective of the event was to pave the way towards a long term development of a decentralized network of states willing to take a proactive a itude to foster genocide prevention. This objective also had an impact on the format of the forum which took place in closed meetings (except for one public seminar, What is genocide and how to prevent it) in order to facilitate open and frank discussions. This emphasis on securing state participation was a natural consequence of the declared objectives of the event. More fundamentally, it was also the result of the recognition that at the end of the day, genocide prevention will largely depend on the political will of states; who are still the main actors in international relations. Many good ideas were put forward along the discussions. Among other practical ideas, it was suggested to designate focal points in each country for the prevention of genocide. This initiative should be given close a ention since it seems to be an essential part of a decentralized approach to genocide prevention. It would improve coordination at the national level and would facilitate regional and international contacts and cooperation.

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N 42 47

Considering ways and means to achieve stronger statehood

Todays conversation about Genocide Prevention

Emerging paradigms in Genocide Prevention

Genocide Prevention in Historical Perspective

Ted Robert Gurr

How to Use Global Risk Assessments to Anticipate and Prevent Genocide

Prevention of Genocide: De-mystifying an Awesome Mandate

Prevention of Genocide: The role of the International Criminal Court

Transitional Justice and Prevention

Horacio R. Trujillo Sanjeev Khagram

Religion and the Prevention of Genocide and Mass Atrocity

Genocide Prevention and Cambodian Civil Society

Enzo Maria Le Fevre Cervini Istvn Lakatos

The regional fora: a contribution to genocide prevention from a decentralized perspective

Silvia Fernndez de Gurmendi

M Bleeker FDFA Federal Department of Foreign Aairs

Andrea Bartoli EGGP/ICAR George Mason University

Todays conversation about Genocide Prevention

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20 http://www.mfa.gov.tr/protocol-on-development-of-relations-between-the-republic-of-turkey-and-the-republic-ofarmenia.en.mfa and http://www.armenian.ch/fileadmin/ user_upload/saa/Docs/2009/200909-ArmeniaTurkeyProtocols_E.pdf

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Emerging paradigms in Genocide Prevention*

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40 See note 34 41 See Fernndez in this volume for more discussion.

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Genocide Prevention in Historical Perspective

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