Preventing genocide and mass killing from a culture of reaction to prevention.

"EACH INDIVIDUAL STATE has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity", declared the Outcome Document adopted by the United Nations at the 2005 World Summit in September. This responsibility is met through appropriate diplomatic, humanitarian and other peaceful means, and also by taking collective action through the UN Security Council "in a timely and decisive manner" if peaceful means are inadequate. This signals a move from a culture of reaction to a culture of prevention. Yet, the reference to "responsibility to protect" leaves diplomats thinking hard. Nobody is really sure how the concept translates into concrete action at the level of the Security Council, the General Assembly and the newly-created Human Rights Council.

The United Nations remains haunted by its failure to respond to the early warnings of genocide in Rwanda. I well recall the great confusion at the time. In January 1993, I had participated in a non-governmental organization-organized inquiry, which spent several weeks investigating charges of human rights abuse, including ethnic cleansing, killings and torture in Rwanda. In a March 1993 report, it had warned of genocide and war crimes; and shortly afterwards, the Special Rapporteur on extra judicial, summary or arbitrary executions, Bacre Waly Ndaye, went to Rwanda and confirmed the findings of the commission. Months later, when the Force Commander of the UN Assistance Mission in Rwanda, General Romeo Dallaire, warned of death squads being trained for a murderous project, the urgency was not appreciated.

The report of the Secretary-General's High-level Panel on Threats, Challenges and Change in December 2004 recalled that the preoccupation of the UN founders was with State security not human security. (1) One needs only to review the Charter of the United Nations to appreciate the secondary position of human rights at the time it was adopted. It was listed as one of the purposes of the Organization, but the reference appeared towards the end of a lengthy provision. Primary responsibility for human rights was assigned to a specialized commission rather than to a principal organ. And in one of international law's classic ambiguities, alongside the protection of human rights was the assurance that "[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State".

The place of human rights within the UN priorities began to evolve almost immediately. Punctuated by the uncertainties of the cold war, human rights-sometimes expressed rather more broadly as "human security"-have now become the Organization's raison d'etre. The proposals of the High-level Panel, developed by the Secretary-General in his report of March 2005 titled In Larger Freedom, and the Outcome Document confirm this. In recognizing a responsibility to protect populations at risk of genocide, war crimes, ethnic cleansing and crimes against humanity, the Outcome Document effectively trumps the archaic language about non-intervention in matters essentially of domestic jurisdiction.

Anxious about imposing treaty obligations that might be too far-reaching, the drafters of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide decided that some of the broader issues involving survival of minorities, such as protection of language and culture, were better placed within the Universal Declaration of Human Rights. They voted to exclude what was then called "cultural genocide" from the scope of the Convention. Another sign of hesitation was the refusal to recognize that States could and should prosecute genocide, even if the crime itself had no territorial or personal connection with them. Many celebrated prosecutions, such as Eichmann in Jerusalem and Pinochet in London, have relied on the principle of "universal jurisdiction", but it was rejected in 1948 and replaced with a promise to create an international criminal jurisdiction. That ambitious proposal took more than half a century to realize. Today, the International Criminal Court is operational, with 100 member States.

Historically, genocide and crimes against humanity had an uneasy relationship. Genocide required physical destruction of an ethnic group, while crimes against humanity spoke to a spectrum of acts of persecution, falling short of extermination. But genocide could be committed in time of peace, whereas the law of Nuremberg had declared that crimes against humanity required a connection with aggressive war, although it is now well-established that these crimes may be committed in peacetime. Meantime, our concept of genocide is expanding to cover acts falling short of physical destruction of groups. As a result, criminalization of atrocities is relatively seamless.

Arguments on whether specific atrocities "rise to the level of genocide" or are "merely" crimes against humanity are counterproductive. Although "genocide" certainly reserves its unique stigma, any distinction between the two concepts is without significant legal consequences. This was recently confirmed by the Commission of Inquiry on Darfur: "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences, such as the crimes against humanity and war crimes that have been committed in Darfur, may be no less serious and heinous than genocide." (2)

[ILLUSTRATION OMITTED]

The United Nations Security Council is central to prevention of genocide, if only because of its pre-eminent authority within the Organization. But it has often disappointed in the past, its inertia faced with the Rwandan genocide being the classic example. Over the past decade, some new players have come to the fore. In July 2004, the Secretary-General appointed a highly distinguished human rights advocate and expert, Juan Mendez, to be his Special Advisor on Genocide, with a small but highly professional staff to assist him. In some ways, the position carries considerably more gravitas, as it appears to have a more or less direct channel to the Security Council. The Special Advisor has described his office as a "focal point" for early warning information coming from inside and outside the United Nations system. He has very wisely resisted indulging in technical debates about the components of the crime of genocide, as defined in the 1948 Convention. The Outcome Document is enthusiastic: "We fully support the mission of the UN Special Advisor for the Prevention of Genocide."

Genocide prevention has suffered from the absence of some permanent mechanism like a treaty body for the implementation and monitoring of the Convention. While other human rights treaties were enriched by regular examination of their provisions, through the process of preparing and examining periodic reports and the treatment of individual petitions, the Genocide Convention lingered in a kind of judicial limbo. Prevention requires both early warning and early action. But it involves a tedious waiting period and an absurdly high state of readiness, followed by exceedingly rare episodes in which urgent action is dramatically needed. The existence of a monitoring body in 1994 would probably not have entirely prevented the Rwandan massacres, yet a clearer perspective that came from regular examination would surely have contributed to prompt and effective reaction.

International humanitarian law does not directly address the source of armed conflict, but prides itself on neutrality in this respect, which enables it to address both sides of an armed conflict even-handedly. This indifference to the cause of war is arguably the key to its success. Nevertheless, the unwillingness of international humanitarian law to speak to this issue constitutes a serious shortcoming in a comprehensive strategy to deal with genocide and mass killing.

If the waging of an illegal war is not a violation of international humanitarian law per se, does that mean that it is not a violation of international human rights law? After all, article 6 of the International Covenant on Civil and Political Rights declares that "[n]o one shall be arbitrarily deprived of his life". Many recent authorities suggest that human rights law should defer to international humanitarian law in the event of armed conflict. (3) Obviously, it is desirable to attempt to reconcile these two bodies, whose common mission is to protect the dignity of human beings. Yet implicitly, at least, it is suggested that "collateral damage" in warfare is not a human rights violation, because it is an unavoidable companion of armed conflict. If human rights law and humanitarian law are joined in this manner, however, then human rights law is also required to ignore the cause of the conflict-this is where the attempt at accommodation seems to break down.

Unlawful war results in unlawful killing, which is a violation of human rights. This must be the underlying meaning of the protection against the arbitrary deprivation of life. But human rights law has been too cautious about entering this area. Why, for example, were there no resolutions by the Commission on Human Rights condemning the illegal invasion of Iraq by the United Kingdom and the United States? And why were these two countries not convened in emergency session by the Human Rights Committee to answer charges that their aggression had resulted in an arbitrary deprivation of life of tens of thousands of Iraqi residents?

"Freedom from fear"-these seminal words of Franklin D. Roosevelt, first expressed in his "Four Freedoms" speech to the United States Congress in January 1941, appear in the preambles of the Universal Declaration of Human Rights and in two succeeding international covenants. The antiwar premise that underpins modern human rights law can be glimpsed in article 20(1) of the International Covenant on Civil and Political Rights: "Any propaganda for war shall be prohibited by law." This may not be much to go on, but it is enough to glean the philosophical framework of the Covenant. Human rights institutions should be more forthright in condemning unlawful war; however, in the case of Iraq, they generally failed at the task.

Illegal war is prohibited by international law and is indeed a war crime. Even Lord Goldsmith, in his advice to Prime Minister Tony Blair of the United Kingdom prior to the attack on Iraq warned: "Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognized by the common law which can be prosecuted in the UK courts." (4) Although prosecution is highly unlikely, in the United Kingdom or elsewhere, the opinion is a vivid reminder of the fact that one of the great lacunae in the Rome Statute of the International Criminal Court, namely the failure to agree on a provision covering the Court's jurisdiction over the crime of aggression, (5) does not in any way diminish the historic fact that aggression (or "crimes against peace") was judged a crime under customary law at Nuremberg. Nothing has happened since to change that.

NOTES

1 "A More Secure World: Our Shared Responsibility, Report of the Secretary-General's High-level Panel on Threats, Challenges and Change", 2004, annex, p. 15.

2 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, 25 January 2005, p. 4.

3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, International Court of Justice, 8 July 1996, para. 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, International Court of Justice, 9 July 2004, para. 106.

4 The Attorney-General's Advice on the Legality of Military Action by the United Kingdom against Iraq, 7 March 2003, para 34.

5 Issues concerning aggression are being studied under the aegis of the Assembly of States Parties. Amendments to the Rome Statute are to be made at the first Review Conference, to be held in 2009, so that the Court will be in a position to exercise jurisdiction over the crime of aggression.

William A. Schabas is Director of the Irish Centre for Human Rights at the National University of Ireland, Galway. He also served as one of three international commissioners of the Sierra Leone Truth and Reconciliation Commission (2002-2004) and has lectured worldwide on international humanitarian and human rights law.

[ILLUSTRATION OMITTED]