Genocide Prevention and International Law

The recently published report Preventing Genocide: A Blueprint for U.S. Policymakers (the Albright-Cohen Report) is a welcome addition to the growing efforts to realize the often invoked promise, ‘‘Never again.’’1 In fact, it constitutes the first attempt to translate the existing research on genocide prevention into a policy guide for decision makers, and it deserves praise for taking this step. In particular, 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 fu r Wissenschaft und Politik in Berlin will engage in similar work to add new perspectives and inspire European leaders. Follow this and additional works at: http://scholarcommons.usf.edu/gsp This Article is brought to you for free and open access by the Tampa Library at Scholar Commons. It has been accepted for inclusion in Genocide Studies and Prevention: An International Journal by an authorized administrator of Scholar Commons. For more information, please contact scholarcommons@usf.edu. Recommended Citation Mennecke, Martin (2009) "Genocide Prevention and International Law," Genocide Studies and Prevention: An International Journal: Vol. 4: Iss. 2: Article 7. Available at: http://scholarcommons.usf.edu/gsp/vol4/iss2/7 Genocide Prevention and International Law Martin Mennecke Robert Griffith Visiting Professor, Washington and Lee University The recently published report Preventing Genocide: A Blueprint for U.S. Policymakers (the Albright-Cohen Report) is a welcome addition to the growing efforts to realize the often invoked promise, ‘‘Never again.’’ In fact, it constitutes the first attempt to translate the existing research on genocide prevention into a policy guide for decision makers, and it deserves praise for taking this step. In particular, 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 fur Wissenschaft und Politik in Berlin will engage in similar work to add new perspectives and inspire European leaders. Being the first of its kind, the Albright-Cohen Report invites a number of criticisms. This cannot come as a surprise, and it may, indeed, help to generate further debate and reflection. My focus here will be on the relationship between genocide prevention and international law. From a legal perspective, there are numerous obvious links between the two—of course, one might say, given that the crime of genocide is defined in a legal instrument, the UN Convention on the Prevention and Punishment of the Crime of Genocide (UNCG). Nonetheless, the treatment of international law in the report remains inconsistent and insufficient. Most often, law is reduced to ‘‘international political challenges’’ (75; emphasis added) or is accorded even less importance. This approach corresponds well with the state of art in the field of genocide studies, where much ink is still spilled on criticizing the alleged and real shortcomings of the legal definition instead of scrutinizing newer developments. The Albright-Cohen Report should have done better and explored how recent trends in international law could contribute and shape future policies in the field of genocide prevention. The Albright-Cohen Report and International Law On a number of occasions the report does touch on the interplay between genocide prevention and international law. Chapter six is in fact titled ‘‘International Action: Strengthening Norms and Institutions,’’ and references are made to legal concepts such as the responsibility to protect (xxi) and to institutions such as the International Criminal Court (101ff). Some of the recommendations set forth are very agreeable, while others seem totally unrealistic; overall, there is little self-critical assessment of past US policies vis-a-vis international law. What is more, legal tools appear to be relegated to a secondary category, appended to and dependent on political considerations. An example of this approach occurs in the brief discussion of the potential need to initiate military operations when no UN authorization can be obtained. On the one hand, the report slurs over the fact that the use of force is generally prohibited under international law (97). On the other hand, it ignores the fact that the United States has no official policy supporting the existence of a right to humanitarian intervention. Martin Mennecke, ‘‘Genocide Prevention and International Law.’’ Genocide Studies and Prevention 4, 2 (August 2009): 167–175. ! 2009 Genocide Studies and Prevention. doi:10.3138/gsp.4.2.167 In what follows I shall highlight some of the report’s shortcomings vis-a-vis international law and point to one particular and major omission: the failure to address the legal duty of the United States to prevent genocide. (a) The Legal Definition of Genocide as ‘‘Definitional Trap’’ for Genocide Prevention The Albright-Cohen Report begins by discussing the scope of genocide prevention, calling this ‘‘Defining the Challenge.’’ Should prevention focus on genocide alone, or should it also address crimes against humanity and other massive violations of human rights? Does genocide prevention depend on a determination of genocide? The task force behind the report defines the scope of the Blueprint ‘‘as the prevention of genocide and mass atrocities, meaning large-scale and deliberate attacks on civilians’’ (xxi). A number of recent developments, such as the mandate of the UN’s Special Adviser on the Prevention of Genocide, the scope of the responsibility to protect, and the newly discovered legal duty to prevent genocide, all point in this same direction. While lawyers were the first to call genocide the ‘‘crime of crimes,’’ they have since moved beyond the notion of a hierarchy of suffering. Today, there is a growing readiness to view genocide together with other international crimes—and not only in terms of prevention. A very pertinent proposal has been made by David Scheffer, who for the purposes of prevention, suggests speaking of ‘‘atrocity crimes,’’ precisely to avoid the ‘‘definitional traps’’ to which the Albright-Cohen Report refers. The atrocity crimes terminology allows us to focus the debate on how to respond to a given crisis instead of spending time and energy discussing whether or not the strict requirements of the legal definition of genocide have been met. Although the report does not mention Scheffer’s work, it includes a similar proposal, explaining that the authors’ ‘‘central purpose . . . [is] prevention’’ and that they advocate ‘‘the adoption of measures before acts of massive violence have been committed or labeled’’ (xxii). This makes a lot of sense. If the objective is to prevent genocide from happening, international efforts must logically be comprehensive, broader than the narrow notion of genocide, in order to prevent just that. Ideally, prevention measures will keep a situation from escalating into genocidal violence so that there will be no genocide. For this reason, any effective genocide-prevention policy also needs to combat crimes against humanity and other grave violations of human rights that could progress to genocide. The term ‘‘genocide’’ is often invoked by activists or the media in the belief that only this particular crime will engage the broader public and lead to a decisive response. The increased level of international interest in the Darfur crisis following the invocation of the term ‘‘genocide’’ seems to confirm the power of the ‘‘G-word’’; at the same time, however, this situation also shows the term’s inherent dangers. There continues to be disagreement about the appropriateness of labeling Darfur a genocide, as well as problems in some quarters with realizing that, even in a case of genocide, the situation on the ground may be more difficult than a fight between ‘‘good’’ and ‘‘evil.’’ ‘‘Genocide,’’ in its simplified public usage, often seems to blur observers’ ability to analyze and understand the relevant conflict. It therefore comes as a surprise when the authors make a 180-degree turn, announcing that the report will ‘‘use the term genocide as a shorthand expression for [a] wider category of crimes’’ (xxii). This is boldly inconsistent and cannot convince. The same report warns that ‘‘legalistic arguments [as to whether or not a certain crisis fulfills the legal definition of genocide] have repeatedly impeded timely and effective action’’ (xxi)—yet still opts to use the term ‘‘genocide.’’ It is deplorable that the Genocide Studies and Prevention 4:2 August 2009