Genocide, post factum

The Convention on the Prevention and Punishment of the Crime of Genocide, adopted in response to the Holocaust in 1948 to prevent state-driven campaigns of mass-murder, has one rather obvious problem: It doesn’t work. Drastic reforms of the way the international community responds to genocide and ethnic cleansing should be made, with depoliticizing the process as the first priority.

Since its adoption, the Convention has not prevented a single instance of genocide. Atrocities in Cambodia, East Timor, Iraq, Rwanda, Bosnia and most recently, Sudan, all took place with wide coverage by the world media and often with the connivance of international institutions.

Only in the 1990s did the Convention provisions begin to be enforced. International courts found defendants guilty of genocide in two cases, Rwanda and the former Yugoslavia. The judges of the two UN ad hoc tribunals decided the mass murder of the Tutsis and the murder of thousands of Muslim men and boys in Srebrenica were cases of genocide.

The international community’s response to genocidal campaigns and the application of genocide law, including the International Criminal Court, which indicted Sudanese President Omar el Bashir, is reactive, not proactive. The international community has established mechanisms for prosecuting the perpetrators of genocide post factum, but not a mechanism for intervening in genocide when it happens.

Although individual statesmen may be important as the preachers of hatred and inciters of mass murder, it is only when such destructive ideologies are implemented by state structures that genocide takes place. Since genocide is likely only with state support, it can be stopped only by other states.

One fundamental difficulty with dealing effectively with the states that resort to genocidal policies is in the very architecture of an international system based on the sanctity of sovereignty. The only institution with the authority to transcend the Westphalian system, the UN Security Council, is too political to ever agree on a humanitarian intervention. This is exemplified by its inability to agree on action against Sudan and the fact that the only recent successful humanitarian intervention in Kosovo was carried out without sanction from the UN.

Another difficulty is a lack political will on the part of world leaders to intervene when the situation demands, such as the 1994 genocide in Rwanda. Apprehensive of foreign intervention after the disaster in Somalia, the Clinton administration refused to acknowledge genocide in Rwanda is it was unfolding because doing so would have demanded a response. And it took humiliation in Srebrenica for the West to act decisively in responding to ethnic conflict in Kosovo.

What is needed is a major paradigm shift in the way we think about sovereignty and the responsibility of the international community to intervene in genocide as it happens. As long as the decisions on humanitarian interventions are made collectively by governments that follow their own narrow interests, there are bound to be disagreements and political deadlocks that often come at an appalling human cost.

We have seen that swift decisions in response to genocide are nearly impossible through traditional diplomacy, while action through international courts and issuing injunctions against political leaders take too much time. 

Ideally, to avoid political deadlocks, decisions on interventions should be depoliticized. Clear criteria for humanitarian interventions should established, with the final decision being made by an independent body. Essentially, when the Security Council refers a case of crimes against humanity to a court, such as the ICC or an ad hoc tribunal, it asks an independent body to make a judgment on it. The courts, unlike the Security Council, can make an independent and apolitical judgment but they cannot authorize the use of force. What is needed is an independent body under UN auspices with powers to authorize the use of force as a measure of last resort to stop genocide. 

The UN already has examples of such independent bodies. The UN treaty-based bodies that monitor the implementation of the core international human rights treaties, such as the International Covenant on Civil and Political Rights, are comprised of independent experts, nominated by the member-states but independent of their countries. Granting the decision on humanitarian intervention to a UN body of independent experts would make any intervention a matter of objective imperative and not political drama.

Another recent move to put the onus of eradicating genocide on the international community is the external pageResponsibility to Protectcall_made (R2P) approach, established by the International Commission on Intervention and State Sovereignty.

R2P calls for the transfer of the responsibility to protect to the international community in case a state is unwilling or unable to stop or prevent genocide or other massive human rights violations. Although R2P provides clear guidelines for determining when intervention by external actors must be deemed necessary, it falls short of calling for an independent body that could determine when the use of force is a moral imperative and leaves the final decision up to the Security Council.

The Convention on the Prevention and Punishment of the Crime of Genocide has not prevented a single instance of genocide in its six decades of existence. If anyone is found guilty of genocide in Darfur after the conflict, either by prosecutions through the International Criminal Court or in an ad hoc international tribunal, it will only confirm this perception.

The international community must be proactive rather than reactive in responding to genocide and crimes against humanity. Sadly, it has yet to develop an effective legal mechanism for doing so.