As the Nuremberg trials progressed in 1946, Hannah Arendt wrote that the unprecedented horror of the Final Solution had ‘overstepped and shattered any and all legal systems...We simply are not equipped to deal, on a human, political level, with a guilt that is beyond crime and an innocence that is beyond good and virtue.’ Sixty years and at least five genocides later, this ‘guilt beyond crime’ remains a scourge frequently eulogized and condemned, but rarely conquered. We still have not seen the emergence of a consistent strategy to prevent and halt this uniquely abhorrent crime. Genocide prevention is a crucial component in the wider challenges faced by the US and the UK as members of the international community. Preventing future genocides is not just a moral imperative; it represents the confluence of many of the most pressing issues on our foreign policy agendas, and should accordingly be made a top tier priority. To achieve this, it is necessary to assemble a critical mass of political will—a task in which civil society groups, working to organise electorates, will prove crucial.
Genocide and International Law
States have specifically committed themselves to the prevention of genocide through the UN Convention on the Prevention and Punishment of Genocide, adopted in 1948. The Convention defines genocide as ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ by; 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; or imposing measures intended to prevent births within the group.’ This need not be committed by a state, although given the resources needed to complete a genocidal campaign this is often the case.
While the definition of genocide sounds quite clear, it has been consistently misinterpreted—unwittingly or intentionally—by jurists and politicians, and particularly by state actors unwilling to intervene to stop genocide. The debate regarding the legal scope of the term has hampered efforts to establish a coherent prevention policy. This has particularly surfaced regarding in being able to determine when war crimes or crimes against humanity cross the legal threshold to become genocide. Campaigners have lobbied for a wider application of the term to identify such a situation at its earliest stages and also for including socio-political groups targeted for annihilation (bringing the atrocities of the Khmer Rouge and Stalin’s mass murder of Ukrainian ‘kulaks’ under this definitional umbrella). In contrast, minimalist interpretations hold that this term must necessarily have a narrow scope if it is to retain its moral and legal potency, given the frequent politicized misuse of the term. The existing body of precedent favours a broader interpretation of the proof of intent, including the Rome Statute, the case law established by the trials of the Nazi war criminals or the International Criminal Tribunals of Yugoslavia and the courts of Iraq. Such developments can be said to have established a broader jus cogens understanding of the content of the definition and the proof of intent.
But it is a mistake to approach this issue as primarily a problem for the courts. The evidence suggests that this practice does not serve as a deterrent to potential perpetrators, primarily because it lacks any meaningful enforcement apparatus. Usually takes many years before these perpetrators are brought to justice, if at all. The trials of former Khmer Rouge Officials did not begin until 2006, and the Simon Wiesenthal centre reports that up to 300 suspected Nazi war criminals remain at large in the United States. As Charles Garraway—distinguished barrister and a member of the UK delegation to the Rome Conference— commented, ‘This is really more of a political problem than a legal problem, because it comes down to the choices that states make.’
Politics
The overwhelming reason why we continue to lack a coherent and consistent response to this phenomenon is not through a shortage of action by the ICC, but perceptions of political expediency. This was the rationale of former Secretary of State James Baker when he said of the Bosnian war, ‘we’ve got no dog in this fight.’ This calculus has become as outdated as it is cynical, and the issue of genocide in particular throws this into sharp relief. Time after time, we have seen how seemingly isolated instances of genocide mushroom to threaten regional security, usually with an even larger price tag attached—not to mention the incalculable human cost.
The Security Council is meant to be the main body of enforcement for the Genocide Convention, yet has manifestly failed, and in some cases has actively subverted, prevention and intervention efforts. The politicized nature of the security council—manifest particularly by the Russo-Chinese power bloc—has been consistently obstructionist. In some cases even democracies such as France have effectively colluded with a genocidal power (as during the Rwandan genocide). Also, the culture of the UN seems always to favour an excessively minimalist interpretation of the convention, to the extent that the 2005 Commission of Inquiry on Darfur concluded that there was no evidence of genocide.
Thus, the US and UK must quietly but decisively shift away from any reliance upon the Security Council on this issue, and work towards new multilateral or bilateral agreements which undertake to prevent and intervene in the event of genocide, up to and including the use of force to protect civilians. If we are to establish a results-based approach to this issue, we must turn to the UN for information, analysis and soft diplomacy but cannot count on the Security Council for political solutions. The newly created UN offices of the Special Adviser for the Responsibility to Protect and the Special Adviser for the Prevention of Genocide can offer helpful points of contact. The US and UK should support these offices in building their Early Warning capacity, a prospect likely to improve if the two offices merge as has been planned. These offices must become a more visible go-to point for both civil society groups and the general public, and should redouble their efforts to provide a platform for the victims of genocide to communicate their experiences to policy makers and the public.
The crucial element in the Anglo-American response to this challenge is the application of the ‘Responsibility to Protect’ (R2P) principle. The concept, first developed by Francis Deng and a group of intellectuals at the Brookings Institute, was further articulated by the International Commission on Intervention and State Sovereignty in 2001, and was adopted by the General Assembly in the 2005 World Summit Outcome Document. The concept rests on three pillars:
1. States have a responsibility to protect their population from mass violence;
2. The international community has a duty to assist states which have trouble meeting this obligation, and
3. If a state fails to fulfil its responsibility the international community must respond up to and including the use of force—although the emphasis is firmly on upstream prevention.
The R2P is based on the principle that a state’s sovereignty is based on its responsibility to protect its own civilians. If the state actively engages in civilian killings and genocide, the international community has a duty to intervene. Naturally, strong legal standards for intervention must be established. While rhetorical support of the R2P may be flourishing, the prospect of its practical implementation is deeply unpopular in many quarters. Russia and China have been particularly hostile to transforming this into an international norm and states in the Global South—some democracies, others authoritarian—have expressed suspicion that the principle is a guise for western interventionism.
It would be irresponsible for elected officials to leave the development of such an important principle of international relations to the exclusive remit of the UN, particularly given the fact that the UN’s current vision of the R2P leaves the prospect of intervention as the exclusive prerogative of the Security Council. Given its track record, this would be sheer folly. While the Foreign Office has established a dedicated R2P desk, this issue has had quite low visibility in Parliament and is certainly not being articulated to a broad section of the British public. The All-Party Parliamentary Group for the Great Lakes Region and the Prevention of Genocide is well-placed to continue its excellent work as the chief advocate on these issues. Backbenchers can also make their voices heard by introducing Private Members Bills on the subject. In the US, the State Department does not have a dedicated R2P desk. Executive and legislative powers of both the US and UK are the vital galvanizing forces to put the R2P on the agenda. Members of both houses of Congress and Parliament should work to put this on the agenda by introducing resolutions and preferably bills on the R2P generally, and on genocide prevention specifically. There can be no meaningful prevention strategy without a discussion of the R2P.
In the US, the sustained attention to Darfur which has characterized the legislature should be extended to increase the pressure on President Obama. The Executive is crucially important in advancing a genocide prevention agenda. Thus far, Obama has sent mixed signals: while he appointed the leading genocide advocate Samantha Power to the National Security Council, one could argue that his Foreign Policy team has undermined efforts to lean on the Sudanese regime by essentially taking all discussion of China’s human rights record (including its continued sales of arms to the Sudanese regime) off the table. His administration is also attempting to placate the Russian regime despite its increasingly belligerent behaviour, and has needlessly strengthened the hand of the other chief reactionary force on the Security Council. This will not benefit our long-term interests, nor will it contribute to international peace and security. There are ample opportunities for President Obama to reverse this dangerous course, in line with his policies of change. Genocide can become one of the defining issues of his foreign policy, an accomplishment befitting his historic presidency. Darfur should be made a top priority. In the long term, he should focus national and international attention on the R2P, and set genocide as a major priority for the US State Department. Early warning apparatuses and a system of interagency cooperation between the Departments of State and Defence and the intelligence agency need to be devised. Although this entails spending money in the short term, the amount saved by potentially preventing a situation from developing into a crisis would easily justify such expenditure.
In the UK, the Foreign and Commonwealth Office should expand its current efforts to go beyond the existing conflict prevention model and add a genocide prevention model. Britain also has a vital role to play in encouraging the EU to adopt a similar approach.
Moreover, any commitment to genocide prevention must include the promise to use punitive action up to and including the use of force to arrest mass atrocities, which is the only demonstrated way of influencing perpetrators to suspend their activities. In order to forge an effective policy, there must be a standing readiness to intervene to stop the atrocities and genocide. Therefore, the US and UK need to invest in NATO’s rapid response capabilities, and forge a multilateral treaty arrangement of responsible, democratic actors committed to enforcing the principle of the responsibility to protect. In addition, Early Warning preparation could include an assessment of whether or not local resistance could be harnessed to defeat perpetrators of genocide or mass atrocities. Such a strategy is necessarily complicated, but could prove to be an effective and less disruptive strategy, as our military relationship with the Kurds in Iraq has demonstrated.
It is also necessary to work to improve the capacity of UN peacekeeping forces so that they have the resources, manpower and the mandate necessary to accomplish their mission. Peacekeepers rely upon UN authorization which may not materialize. But there are a number of other multilateral mechanisms with the authority and ability to intervene including regional organisations such as the African Union or the EU. These organizations should also develop contingency plans based on monitoring these situations. Overall, the R2P policy should be realistic, implementable and based on consensus. It is necessary to work together on prevention of genocide not only with the Western democracies, but with democratic countries all around the world – to demonstrate that genocide prevention is not just an activity occasionally carried out by NATO.
Civil Society Efforts
As Samantha Power has argued, it is not enough to rely upon politicians’ consciences if we are to achieve progress on this issue; rather, campaigners must focus on building the political will necessary to compel elected officials to take action. To this end, anti-genocide campaigns and organisations are on the rise in both the US and the UK, although UK campaigns tend to consist of smaller and extremely dedicated organizations such as Waging Peace and the Aegis Trust. Genocide Watch has been a path-breaking endeavour, developing a number of novel and influential ideas, including the successful proposal to create the post of special adviser for the prevention of genocide, and an as-yet- unfulfilled proposal for an international, non-governmental Genocide Prevention Centre dedicated to investigating, anticipating and preventing mass atrocities and genocide. Such a centre would certainly help to concentrate efforts on one centralized sphere, with an authoritative early warning capacity. However, this is dependent on amassing a very large source of independent funding—not an easy task in the current financial context—and could never be an answer in itself.
Two basic approaches signal the future of anti-genocide campaigning: a) networked cooperation through broad based campaigns comprised of large and small NGOs and civil society groups; and b) the active engagement of ordinary voters. Additionally, eyewitnesses and victims of the genocide should be brought to the fore by these campaigns to communicate their experiences to the world. It is crucial to convince ordinary citizens that they can effect change, and to harness their power as voters to bring that message to the capitols. By injecting a more democratic ethos into advocacy, civil society actors can encourage change from the bottom up and hold politicians to account.
Civil society groups must also cultivate a broad base of involvement if they are ever to attain the critical mass necessary to effect change. This was the approach taken by our namesake Henry Jackson, who united left leaning Democrats and conservative Republicans to support the implementation of the Helsinki Accords. In the UK, it would be helpful to establish a government-funded but independent initiative focused on genocide prevention, akin to the Committee on Conscience think tank which operates out of the United States Holocaust Memorial Museum, and which spearheaded the Genocide Prevention Task Force. Government-funded projects such as the Holocaust Education Trust and the Holocaust Memorial Day Trust are important, but they need to be backed up by a high level policy initiative. The establishment of an analogous organisation operating out of the Imperial War Museum, with a mandate to record the history of the Holocaust and all genocides and to educate the public and policy makers on contemporary and future threats would be helpful.
Finally, civil society groups can also provide an important resource for early warning efforts. The International Crisis Group devised a groundbreaking and highly sophisticated model aimed at identifying problems before they develop into full scale crises. In the UK, the Aegis Trust has developed a useful model which identifies the primary, secondary and tertiary stages of prevention—a paradigm equally accessible to ordinary citizens and policy makers. Efforts such as these provide information, analysis, and undermine the chance for powerful decision-makers to use ignorance as an excuse for inaction.
Conclusion
Dr. Halima Bashir, a refugee of Darfur, suffered unspeakably brutal treatment by the Janjaweed when she spoke out about the rape of young Darfuri girls. Her village was later razed, and her family killed. She has since sought asylum in the UK, and has written a very powerful memoir called Tears of the Desert. When I spoke to Dr. Bashir, she told me ‘I think the victims of Darfur who lost their lives are, in a way, luckier than those of us who survived and are still waiting for help after six years.’
Such a heartbreaking statement is naturally an affront to our most deeply held moral sensibilities. But can we do anything about it? There is a tendency to view the challenge of defeating genocide as hopelessly idealistic; as yet another Kellogg-Briand Pact. Yet history contains some very important examples of successful movements of conscience—perhaps most notably the British-led Abolitionist movement. Just twenty years ago the notion of undertaking a humanitarian intervention to stop genocide seemed remote, but the Anglo-American leadership of the NATO intervention in Kosovo has shown that, given sufficient will for action, this can be a reality. Given enough political will and recognition of the pragmatic and moral imperative to act, there is no reason why we should remain bystanders to this ‘guilt beyond crime.’