Chapter 1

Moving From Repression to Prevention of Genocide

Payam Akhavan and Ren Provost

Much of history is a tale of humankinds capacity for organized cruelty and violence. Far from being an aberration, conquest and war have been dening features of our collective past, integral to our conceptions of triumph and heroism. Indeed, the iniction of suffering on others has rarely been considered as necessarily evil. Rather, mass violence is always justied by appealing to higher ideals, if not the sacred. In this somber tale of history, the modern era holds a place of distinction. It is an era in which ancient murderous instincts reached a new stage of perfection, in the ideological guise of progress and civilization. Beyond atavistic hatred, totalitarianism ushered in a new age of extremes that made the violence of the past pale in comparison. It inspired the word genocide; a word that captured the transformation of the once unthinkable into historical reality. The challenge in our times is to consider whether this scourge is inevitable, or whether it can be prevented. In contemporary history, the harbinger of rationalized mass-murder was the extermination and enslavement of indigenous peoples in the Americas and later in Africa and Asia in the quest for colonial domination. But it was 20th century Europe itself that witnessed the worst excesses. This Century of Genocide opened in 1915 with the eradication of almost 1.5 million Armenians by the Ottoman Empire. It was followed in 1932 by the Ukrainian famine in which millions perished under Soviet rule. It reached its apotheosis with the extermination of 6 million Jews in the Nazi Holocaust. This was an unprecedented attempt to systematically eradicate entire peoples, rationalized through a pseudo-scientic theory of racial purity, and implemented on an extraordinary scale by the vast and efcient structures of the modern State. In the European imagination of the time, this cataclysm could not be dismissed as an expression of Oriental despotism or native savagery in distant lands. It occurred in the heart of a
P. Akhavan (B) Faculty of Law, Centre for Human Rights and Legal Pluralism, McGill University, Montreal, QC H3A 1W9, Canada e-mail: payam.akhavan@mcgill.ca R. Provost, P. Akhavan (eds.), Confronting Genocide, Ius Gentium: 1 Comparative Perspectives on Law and Justice 7, DOI 10.1007/978-90-481-9840-5_1, C Springer Science+Business Media B.V. 2011

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much vaunted rational and technologically advanced Western civilization and shattered the blind faith in modernitys promise of progress. Such was the scale of this cataclysm, that at the trial of the Nazi leaders in Nuremberg, the French Prosecutor described it as a crime undreamt of in history. It fell to the Polish jurist Raphal Lemkin to name this nameless crime. Himself a victim of the Holocaust, he coined the term genocide to describe the collective destruction of groups on grounds of their identity. His remarkable one-man campaign to outlaw this crime culminated in the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the UN General Assembly on 9 December 1948. The following day, the UN General Assembly adopted the Universal Declaration of Human Rights. Thus, this seminal treaty enshrined the absolute evil of the Holocaust and presaged the emergence of human rights as the global ethos of the post-war order. Amidst the anticipation and euphoria of a new epoch, the Genocide Convention was hailed as a triumph for international law. But the vow to never again allow such horrors to happen soon became an empty mantra as millions more became the targets of genocide, victims of tyranny and cynicism. Mass-murder in Bangladeshs war of secession, Idi Amins massacres in Uganda, the Khmer Rouge killing elds in Cambodia, Mengistus Red Terror in Ethiopia, the slaughter of Mayans in Guatemala, Saddam Husseins gassing of Iraqi Kurds, the mass-execution of Bosnian Muslims at Srebrenica, the extermination of Rwandan Tutsis, these are but sample sections in a sweeping epic of evil in the latter half of the 20th century, following the criminalization of genocide. These immeasurable tragedies speak to our repeated failure to give effect to righteous declarations and lofty utterances that create the illusion of progress. One step that has been taken has been to revive the international criminal law regime which had remained dormant since the days following the Second World War. The ad hoc criminal tribunals created for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and the permanent International Criminal Court, all stand for one form of commitment to react to genocide by holding individual authors accountable for that crime. Yet while we remember, regret, and sometimes prosecute these past abominations of the 20th century, another genocide unfolds in the Darfur region of Sudan. In the opening years of the 21st century, the world appears to fail the victims once more. It seems that never again has become ever again. Considering its moral enormity, intervention against genocide has become a litmus test for the UN and more broadly a profound challenge to our global conscience. Much has been said and written, by political leaders and diplomats, scholars and experts, journalists and activists, about what could and should have been done to stop mass-murder as it unfolded. During the 1994 genocide in Rwanda for example, General Romo Dallaire, commander of UN peacekeeping forces, called for the deployment of additional troops. Some credibly claim that this could have stopped the

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killings and saved hundreds of thousands of lives. Similarly, others have maintained that in 1995, Dutch UN peacekeepers could have protected the Bosnian Muslim population of the Srebrenica safe-area against massmurder. Such was the political fallout of this revelation that it prompted the resignation of the Dutch cabinet in 2002. In all of these situations, intervention was possible, and opportunities were missed. But in confronting genocide, it is necessary to expand the focus of our inquiry beyond these notorious incidents of failure, beyond intervention at the last-minute when genocide is imminent. There is a need for a radically new approach. The point of departure in preventing genocide is the realization that such extreme violence is not an inescapable reality. Unlike earthquakes, tsunamis, and other natural disasters, mass-murder is not a divinely ordained or spontaneous occurrence. It is not the inevitable expression of primordial hatred, or an irreversible clash of civilizations between peoples of differing identities. It may be true that violence is a part of human nature, at least in a perennial struggle with our more noble attributes. At its root however, the very scale of genocide invariably requires incitement, planning and aforethought. It is thus a deliberate and calculated political choice, instigated by ruthless leaders who use mass-murder as an instrument of power. As such, it is a preventable phenomenon, and it is this pliability of outcome that presents the most fundamental challenge in confronting the prophets of doom. While genocide cannot be predicted with mathematical exactitude, there are indicia, warning signs, that foretell its possibility, and which provide an opportunity to arrest hate-mongering and violence before it escalates into an all-consuming cataclysm. The urgent need for preemption of mass-violence through more subtle means is only magnied by the proliferation of weapons of mass destruction in an age of global terrorism and the manifest failures of hegemonic militant survivalism as a response. The challenge before the international community therefore, is to move from a culture of reaction to a culture of prevention. By the time that atrocities become worthy of headline news, it is usually too late. At this stage in the progression of violence, the options become increasingly limited. Absent pressing interests by powerful nations, there is no willingness for military intervention, and a sense of urgency by a distraught public is soon reduced to compassion fatigue. The time to act is before tensions escalate into genocidal violence, when the cost of intervention through more modest measures is manageable and likely to produce far-better results. In countries such as Macedonia and Burundi, for instance, modest but timely commitment of resources such as preventive diplomacy and peacekeeping averted what could have been ethnic war and genocide. It was exactly because of their success that these interventions never made the headlines. Prevention is essentially measured by what does not happen. Its invisibility is not only a virtue but also an enormous challenge, in that it invites factual denials that there ever was a risk and offers few hooks on which to hang a claim for a share of available resources within the international community.

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The 1994 genocide in Rwanda is an outstanding example of how a preventive policy could have resulted in a different outcome. Several months before the systematic mass-murder began in April of that year, UN ofcials such as General Dallaire had warned of the Hutu extremists plan to exterminate the Tutsis. He had called for a more-robust mandate for peacekeepers under his command, so that they could disarm extremist militia, but was told to desist. Beyond such preemptive use of force however, what is truly remarkable is that the mere jamming of the notorious RTLM Radio could have seriously undermined the gnocidaires capacity to mobilize Rwandas largely rural population. The radio was the sole source of information for the illiterate majority from which hundreds of thousands were incited to exterminate the Tutsi by machete and other crude weapons. The Hutus were subjected to a steady stream of fear and hate propaganda that conditioned them to enthusiastically kill their Tutsi neighbours. Once the genocide began, the radio even instructed militiamen about the identity and location of those targeted for murder. Both the United States and France possessed jamming equipment on the ground, but refused to use it. Never mind that more troops could have been sent to create protective enclaves for Tutsi civilians it should be considered that the extremists could not have mobilized their army of thousands of killers merely if RTLM radio was not allowed to broadcast. That there could have been a different outcome in Rwanda through such a feasible and cost-effective intervention is a powerful illustration of the unrealized potential of prevention in confronting genocide. Every genocide unfolds in its own specic manner, and the recipe for Rwanda does not necessarily transfer to other situations. There is thus a need to systematically and comprehensively analyse the prevention of genocide, to identify a toolkit of measures which can be adapted to the ever changing circumstances in which genocidal tendencies can fester into mass violence. This collection is an attempt to start such a systematic and comprehensive analysis. The book is divided into three sections. Section 1, Reconceptualizing Genocide, considers that the rst step in confronting genocide is an understanding of its anatomy. In nding a cure, we must rst understand the disease. The contributions to this Section therefore provide original analysis of how genocides unfold, so that preventive strategies can be conceived. Section 2, Un/prevented Genocide, moves from the problem to the solution by examining past failures and successes in preventing genocide. The authors take us from the Holocaust to Darfur, from Rwanda to Srebrenica, and consider the available tools for prevention, ranging from military interventions and international criminal trials to economic sanctions and diplomacy. Section 3, Prevention Beyond the State, considers a relatively unexplored aspect of the solution beyond the conventional understanding of global governance. The broad range of options discussed range from civil society activism and the use of peace media to resistance by victims and use of mercenaries to protect civilians.

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Section 1, Reconceptualizing Genocide, begins with lessons learned from history on confronting injustice, not from the familiar example of the Holocaust and other contemporary genocides, but from two less-studied catastrophes of the late 19th and early 20th century that marked an important beginning for humanitarian activism against atrocities. Professor Ben Kiernan of Yale University re-analyzes the Irish Famine of 18451851 and the brutal exploitation of the Belgian Congo between 1885 and 1920, in light of contemporary developments in genocide studies. While he concludes that the genocide label does not easily apply to either instance, he demonstrates that those who pioneered civil society activism in response to these injustices presaged the modern human rights movement, being among the rst to invoke concepts such as crimes against humanity and to demand an international tribunal to punish such atrocities. In the following contribution, the acclaimed French historian and expert on African conicts, Grard Prunier, offers a provocative foundational analysis of genocide, criticizing what he perceives as the strict and formalist denition in the 1948 Genocide Convention. He identies what he terms ambiguous genocides in history, questioning our compulsion with trying to assimilate all mass killings to a precise historical event the 19411945 extermination of Jews in Europe. Drawing on his knowledge of African conicts, Prunier then applies these insights to the slow-motion annihilation still unfolding in the Darfur region of Sudan, and explores possible solutions, making the controversial suggestion that absent intervention by the UN, military assistance to rebel groups may be the only feasible path to protecting victims against genocide. Francis Dengs contribution provides valuable insights on the meaning of genocide, derived from his own unique experiences as the UN Secretary-Generals Representative on Internally Displaced Persons from 1992 to 2004 and as Special Adviser to the UN Secretary-General on the Prevention of Genocide since 2007. Deng recounts how his work with internally displaced persons came to be guided by the principle of recasting State sovereignty as a responsibility, implying both accountability and international intervention for the failure of States to protect vulnerable populations. He then applies this framework to the denition and prevention of genocide, in light of his UN mandate. University of Southern California Professor Douglas Greenbergs contribution focuses on one of the key ingredients of genocide: namely, the close relationship between exclusionary conceptions of citizenship and nationality and ideologies that sustain genocidal violence. He provides an illuminating analysis of the common patterns that can be traced from the Armenian genocide to the Holocaust, Cambodia, and Rwanda, demonstrating the contemporary relationship between the construction of national identity and group victimization. Mark Thompson, drawing on his experience as a journalist in conict zones, explores another theme common to all genocides: the use of the

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media as a conveyor of the ideology of ethnic hatred and violence that is an essential constitutive part of genocide. He provides an original approach by highlighting the tension between Western ideals of free speech and the terrifying potential of propaganda, pointing out that blind adherence to free speech principles was at least partly to blame for past failures to prevent incitement. He includes in particular the example of the refusal by Western policymakers to shut down the notorious RTLM radio station in Rwanda. Thompson advocates a new ethics of communication as opposed to an ethics of self-expression, emphasizing the need for accountability in public speech and an awareness of the dangerous link between unrestricted expression and collective hatred with the potential to escalate into genocidal violence. Section 2, Un/prevented Genocide, moves us beyond the denitional characteristics and warning signs of genocide to the methodology of prevention. Both past and present examples of successful confrontations are examined, and potential solutions explored. Professor Yehuda Bauer of the Hebrew University in Jerusalem, a renowned historian and scholar of the Holocaust, begins this section with his own reections on the prevention of genocide. He explores some of the obstacles to prevention, including the complex psychology of killing, the relative unpredictability of genocide, and the need for intervention to be multi-faceted and pragmatic. Throughout, he provides prescriptions for how various actors and organizations may succeed in prevention of genocide, focusing in particular on the current situation in the Darfur. Wiebe Arts, who served as a Dutch UN peacekeeper in Srebrenica in 1995, has written an extremely valuable and unique soldiers point-ofview on the role of the military in confronting genocide. He explores the conditions necessary for peacekeeping or military missions to succeed in preventing genocide, using the Responsibility to Protect guidelines on military intervention as a benchmark. In particular, Arts identies the need for sufcient resources, the ability to deal with unreliable parties to armed conict, the need for appropriate training, and an element of media savvy, as critical to preventing a repetition of the tragic UN failures in Srebrenica and Rwanda. Professor Irwin Cotler of McGill University, former Minister of Justice and Attorney-General of Canada, argues that beyond troops, the law itself can also be mobilized against genocide. Recalling the Canadian Supreme Courts admonition that [t]he Holocaust did not begin in the gas chambers; it began with words, he focuses on the role of domestic and international law in prohibiting incitement to genocide. Cotler expresses particular concern with the call for the destruction of Israel by the President of the Islamic Republic of Iran, Mahmoud Ahmadinejad, arguing that he should be held to account for incitement to genocide. Professor Taner Akam, an acclaimed and courageous Turkish historian and sociologist, considers the persistent denial of the 1915 Armenian

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genocide in Turkey. Akam was the one of the rst Turkish academics to openly discuss this controversial issue. His contribution explores some of the motivations driving the Turkish governments refusal to face history, criticizing in particular its claims that doing so would compromise national security. He argues that defeating such claims and acknowledging historical injustices is critical both for prevention of future atrocities as well as the democratization process in Turkey. The eminent South African Judge Richard Goldstone the former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda considers the topic of economic sanctions as a key instrument of the prevention toolbox. He examines three particular case studies South Africa, Iraq and Sudan assessing the relative strengths and weaknesses of the use of sanctions in those situations. Goldstone makes a forceful argument for the potential impact of economic sanctions in preventing genocide, but conditions this on judicious use tailored to the specic case at hand. The nal contribution to this Section is a rare Chinese perspective on genocide by two Chinese scholars, Wenqi Zhu and Binxin Zhang from Renmin University. Zhu and Zhang summarize Chinas international obligations with respect to the prohibition of genocide, but note the conspicuous absence of any implementing domestic legislation in this regard. They propose the drafting of new legislation in China criminalizing genocide as an important step in consolidating the norms and structures required to increase awareness of mass crimes. Section 3, Prevention Beyond the State, also considers approaches to genocide prevention, but goes beyond conventional State or UN-centred conceptions of global governance to analyze the role of civil society. Professor Frdric Mgret of McGill University makes a highly original and thought-provoking scholarly contribution, arguing that international law should do more to empower the victims of genocide to resist their oppressors. He points out that in the past, the vast majority of survivors owed their rescue not to the chimera of the international community, but rather to themselves, the courage of strangers or resistance movements. He thus proposes that the best hope in confronting genocide lies in empowering victims, who are often dismissed, even in the law itself, as passive lambs to the slaughter incapable of devising their own salvation. Instead of focusing on ambitious and unrealistic solutions like humanitarian intervention, Mgret argues that international law should shift its focus to resistance by victims of genocide. A related contribution is that of Krzysztof Kotarski and Samuel Walker, who examine a relatively unexplored topic: namely, the potential use of mercenaries in preventing genocide. Although they approach the issue cautiously, they argue that the use of private military companies should be given serious consideration and not be summarily dismissed insofar as it provides an alternative where there is no political will for UN military

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intervention. They contend that the potential use of mercenaries in such circumstances may be legal, cheaper, faster, more effective, and unburdened by the usual obstacles to political will of States arising from the sacrice of national blood and treasure. Rebecca Hamilton for her part explores the central issue of how political will can be generated through citizen advocacy. She argues that in order to be successful, the prevention of genocide cannot originate solely within established power structures but must also be driven by external, popular pressure. She analyzes as a case study the remarkable efforts of the Genocide Intervention Fund in the United States, exploring their innovative campaign to pressure the US Congress to take action on Darfur by establishing a 1-800-GENOCIDE telephone hotline and issuing scorecards evaluating each legislators performance vis--vis Darfur. Noting that lack of caring or empathy cannot be the only reason for inaction, she proposes that anti-genocide citizen advocacy become much more sophisticated, strategic, and pragmatic. The next contribution is that of Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court. He makes a case for the critical role the ICC plays not just in sanctioning but also in preventing genocide. He considers not only the deterrent effect of criminal justice to future crimes but also explores the peace versus justice debate, contending that these imperatives are complementary rather than in competition with each other. He argues that ICC intervention has in fact mitigated atrocities in places like Uganda and the Sudan. Professor Noah Weisbord of Duke University Law School then responds to Ocampos defense of the ICC, with a macro-level analysis of whether international criminal justice is in fact the false dawn of a ctitious international morality or an unachievable utopian ideal. He concludes that the ICC and its supporters have in fact successfully begun to build a new global cosmopolitan morality, a universal code that was once seen as the privileged domain of aristocratic elites, but which has since been democratized with the proliferation of international norms, institutions and the strengthening of civil society. He offers the ICC and the cultural shift it has realized as a successful example of this emerging reality. Professor Catherine Lu of McGill University also examines the role of the ICC in preventing genocide but from a different perspective. She focuses on the pitfalls of idealizing international criminal justice in an imperfect world. She argues that the ICC is an inherently political institution, one that while aspiring to political impartiality, nevertheless prioritizes consequentialist claims that it contributes to peace and reconciliation. Lu thus contends that as a political instrument, the ICC can cause unintended harms, and that sometimes the price of peace may indeed be impunity for mass-crimes. She concludes that the ICC cannot disregard a world of defective domestic and international political agents and structures and that the ideal of universal justice should not blind us to pragmatic constraints and realities.

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Relying on his extensive eld-work in Rwanda, Jobb Arnolds contribution provides insights from psychology on how local reconciliation efforts can contribute to building a lasting peace in the aftermath of violence. He explores the concept of post-traumatic growth by conducting the rst known empirical research on how Rwandan genocide survivors look to the future despite past tragedy. Arnolds ndings help better understand reconciliation efforts in transitional societies, and provide a welcome infusion of hope by demonstrating that even Rwandans exposed to the most unimaginable horrors have been able to re-construct a sense of community and develop a positive outlook on the future. The nal contribution by Mary Kimani, a journalist now working for the United Nations, provides an insightful examination of the role of media in genocide. Whereas Mark Thompson had earlier offered a study of the media as one of the building tools of genocide, Kimani shows how peace media can be used to further tolerance and dialogue, and thus ultimately prevent mass atrocities. She draws mainly from her extensive experience in the African context, arguing that media, historically the mouthpiece of powerful interests in the region, can be positively reshaped to serve the public interest, citing several successful examples of this growing trend. Kimani makes a persuasive plea of increased support for peace media initiatives in Africa, which suffer from an inherent lack of commercial protability despite their critical role in battling exclusionary ideologies. As much as a preventive approach opens new possibilities for confronting genocide, it leaves unanswered a vital question: will reconceptualization of genocide make an appreciable difference to the plight of victims who have been abandoned time and again? This is a fundamental question because in Bosnia, in Rwanda, in Darfur, the world knew what was happening but decided not to act. It is true that early-warning and prevention are more cost-effective than intervention after the fact. This approach thus may be more likely to induce the will to act. Nonetheless, lack of knowledge, inadequate theoretical frameworks, or awed methodologies, hardly explain the repeated failure to protect the victims of mass-murder. So beyond utilitarian justications, will the promises of genocide prevention be realized or will they be relegated to yet another intellectual construction that makes no appreciable difference on the ground? It is evident that where powerful actors link intervention to the pursuit of vital interests, there is a greater likelihood of action. Those advocating prevention of genocide may thus appeal to this calculation of interest to infuse a strategic element of pragmatism to the desirability of engagement. It may be argued that genocidal violence is invariably accompanied by instability and the spillover effects of violence. Thus, it would follow that the international community should act in order to avoid manageable conicts from becoming a wider regional or global problem. This after all is the language of global governance: rational, pragmatic, and mindful of political realities, immune from nave idealism. To the human conscience however, the moral

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imperative of acting against genocide does not require such elaborate justication or cost-benet analysis. In the face of immense human suffering, we are instinctively moved to help those in distress, to make right the wrongs that shock our elementary sense of justice. This impulse, born of empathy, arises more from an emotional connection than it does from a re-conceptualization of a problem, no matter how brilliant and original the perspective. Reducing mass-murder to a distant abstraction or theoretical construct may itself be part of the reason why knowledge is not translated into action. In studying this rich and diverse collection of essays, the reader must not lose sight of the limitations of such discourse in awakening the sense of moral urgency without which we will continue to be spectators to radical evil. This Preface began by recounting humankinds appalling history of cruelty and violence. Yet those gathered at the Global Conference on Prevention of Genocide, and the remarkable authors that have contributed to this book, point to a different potential for solidarity and engagement with the downtrodden. Encounters with survivors of genocide teaches us that in the midst of utter darkness, those that have witnessed unspeakable horrors, and suffered irredeemable loss, but who refuse to surrender their dignity and go on living, searching for answers, seeking justice, these are the most powerful proof of the resilience of the human spirit, of the indomitable hope without which true civilization and progress would be extinguished. It is betting then to recall the stirring and fateful words of 13 year-old Anne Frank, before she and her sister were discovered by the Gestapo at their home in Amsterdam and murdered in the Bergen-Belsen concentration camp. She wrote in her diary: I still believe, in spite of everything, that people are truly good at heart. In searching for solutions to this scourge then, we are also searching for transcendence, for faith that a different and better tomorrow is within the reach of those that act on their conscience.