Never Again — Fulfilling a Promise By Anna Duke

This post is the third installment in a series by the International Human Rights Law Clinic titled — The Matter of Human Rights. In this 16-part series, University of Chicago law students examine, question and reflect on the historical, ideological, and normative roots of the human rights system, how the system has evolved, its present challenges and future possibilities. This post revisits the history of human rights and reflects upon whether and how it has fulfilled its core promise — to “never again” permit genocide to occur. Anna Duke is a third year in the Law School at the University of Chicago.

Never Again — Fulfilling a Promise

By: Anna Duke
University of Chicago Law School Class of 2019

History holds many lessons for the living, and the history of international law is a lesson of struggle between human aspiration and political will. The establishment of the crime of genocide under international law following the atrocities of World War II provides a starting point for an examination of this historic and ongoing struggle. What the international community strove to achieve through the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was to “never again” allow the atrocities of the Holocaust to happen. Since the Holocaust, however, the world has broken that promise again and again, failing to prevent or respond to genocide in many countries, including in Guatemala, Bosnia, Rwanda, and Sudan. The lack of political will to intervene in situations moving towards genocide has resulted in the loss of millions of lives. To fulfill the promise of “never again” and summon the political will to intervene, it is important to address how public opinion can be galvanized to demand governments take action against genocide.

At the end of World War II, the international community, repulsed by the horrors of the Holocaust, unanimously adopted the Genocide Convention in 1948, in which genocide was codified as an independent crime for the first time in international legal history. As set out in the definitional section (Article II) of the Genocide Convention, the crime of genocide is made up of two elements: 1) the physical element, or the acts of genocide; and 2) the mental element (mens rea), or the specific intent to commit genocide. With respect to the mens rea, state parties must establish that there is a “proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group” and that the “victims are deliberately targeted…because of their real or perceived membership of one of the four groups protected under the Convention.”

The struggle between aspiration — to name an atrocity and put an end to it — and the political will to engage in military actions when national interests are not at stake, has been apparent since the beginning, starting with the decision to ratify the Genocide Convention. Article VIII requires contracting state parties to intervene when necessary to prevent genocide and to suppress any “direct and public incitement to commit genocide.” The obligation of prevention arises the moment the state knows, or should have known, that there is a serious risk that genocide will be committed. Partly because of the Convention’s imposition of the duty on states to act to prevent genocide, the US took 40 years to join 97 nations in ratifying the Convention. This reluctance in Washington to take a stand against genocide for fear of obligation to take military action, or other political implications related to declaring a genocide, has continued even after the ratification of the Convention, and has resulted in its failure to prevent numerous genocides.

Exacerbating the low political commitment to genocide prevention is the stringent mens rea standard for genocide — specific intent to commit genocide — which is difficult to prove and requires an investigation. Because specific intent is difficult to prove, the UN, in its “Guidance Note” on genocide prevention, recommended determining a situation to be a genocide only after “a careful and detailed examination of the facts” has been made, which includes “an investigation that meets appropriate due process standards.” This in turn makes it easier for states to put off designating a situation as genocide and to thereby avoid their obligation to intervene until after an investigation demonstrates genocidal intent. This can take years to prove and investigations are often completed after genocide has already taken place.

The Rwandan genocide serves as a prime illustration of how the lack of political will and the narrow definition of genocide in the Genocide Convention can combine to lead to a failure to intervene. In 1994, a genocide in Rwanda took the lives of thousands of people in a very short time span. Between April and June, 800,000 Rwandans were slaughtered by the Hutu forces simply because they belonged to or were sympathetic to the Tutsi ethnic minority.

According to Samantha Power, author of the book A Problem from Hell: America and the Age of Genocide, the US government learned, through its intelligence, of the genocidal intent of the Hutu forces early enough to take action and save lives. Within 16 days of the start of the genocidal killings on April 7, national intelligence briefings informed the President and hundreds of senior officials that senior Hutu military officials were “determined to liquidate their opposition and exterminate the Tutsi populace.” Yet, even as an average of 8,000 Tutsis were being killed each day, US government officials avoided using the term “genocide” until May 25 to describe the mass killings in Rwanda for fear of triggering their obligation to act pursuant to the terms of the Genocide Convention. Some officials were also concerned that labelling the massacre in Rwanda a genocide and then failing to take action would have had an adverse effect on upcoming congressional elections. Lacking the political will to send US military troops to intervene in Rwanda, US officials exploited the high standard of genocidal intent as a loophole and avoided their duty to intervene by initially portraying the deaths of the genocide as wartime casualties of a Hutu-Tutsi civil war.

What accounts for the lack of political will to act, even in the face of clear evidence of genocidal intent? Part of this phenomenon can be explained by the fact that confronting mass atrocities in the world, such as genocide, almost always carries a cost, whether it be the loss of human lives as a result of military intervention or the use of financial and political capital to stop hate speech from spreading. We should not pretend that fulfilling the promise of ‘never again’ is painless and costless. And along with these costs come great political risks as well. For example, two years before the Rwandan genocide occurred, the US sent American forces into Somalia “on a humanitarian mission to bring food to the victims of a raging civil war and man-made famine.” Ten months into the mission, some members of the Somali militia killed over twenty Pakistani peacekeepers, which led US troops to fight back. The 15-hour firefight that ensued resulted in the deaths of eighteen Americans, some of whose bodies were dragged in the streets. Television images of these horrible events evoked an outcry from the public, leading to the withdrawal of American forces from Somalia. They also caused great political embarrassment for the Clinton administration, which thereafter became more hesitant to send peacekeeping missions to Africa. These political costs, along with frequent lack of pressure from the public to intervene, often make it easier and more prudent for governments to ignore humanitarian crises. In the case of Rwanda, there was little pressure from the American public to intervene in the ongoing genocide until it was too late.

This does not mean global efforts to prevent genocide are lost. Some scholars have argued that reform of the high mens rea standard is necessary. They favor a broader approach to or a redefinition of the intent requirement in order to make the Genocide Convention more effective for preventing genocide. However, it is not clear that this is helpful or necessary for overcoming the real barrier of a lack of political will. As mentioned above, even when US officials had enough evidence to suggest that the situation in Rwanda would meet the current mens rea requirements for genocide, they still refused to call the Rwanda killings a genocide and instead recharacterized the violence as a civil war. By contrast, in March of 2016, before enough evidence was available to prove specific intent for genocide against Iraqi and Syrian Christians, the European Parliament and the Obama administration labeled the attacks on these Christians as genocide. The Trump administration has pledged $300 million to help the Christian minorities in Iraq and Syria to rebuild their communities. The key reason for the difference in these responses is that global and domestic pressure to label these violent acts a genocide was high.

Public pressure can generate political will and overcome limitations of legal definitions. As Power noted, all of us have the power to change Washington to become more effective and swift in its response to genocide. This is clearly demonstrated by comparing Washington’s response to the genocide in the Darfur region of Sudan in 2008 with its response to Rwanda. In Darfur, the “linguistic response” was different: Washington decided much earlier to acknowledge that the mass killings there were properly classified as a genocide. There was also much greater pressure on Washington from the public and thereby from Congress, which passed a resolution condemning the atrocities in Darfur as genocide, in order to acknowledge that there was a genocide and to adopt hard-hitting policies against the Sudanese government. This pressure, which was missing in the Rwandan context, was in part due to the fact that the Sudanese Christian minority was being attacked in Darfur, which mobilized Christian advocacy groups to pressure Congress to act. Vowing to take “immediate steps to end genocide” during his 2008 presidential campaign, Obama even appointed a special presidential envoy for Darfur and maintained sanctions started during the Bush administration against the regime.

In a world where the decision to declare a genocide and take action depends to a large extent on the political costs and benefits of doing so, it is important not only to strengthen processes for the global community to come to a consensus about whether a genocide has been committed, but also to develop strategies for overcoming public apathy towards and ignorance of genocide. Although this is not an easy task, the media and the Internet can be harnessed to mobilize and educate the public in the fight against genocide. E-mail campaigns to policymakers and community leaders that raise awareness of genocidal violence have proven effective in harnessing the public opinion to pressure the government to take action. The Save Darfur Movement, credited with pressuring the US government to declare an ongoing conflict to be genocide for the first time in history, treated “Internet sites and e-mail lists” as its primary tools for coalition building. Moreover, both the media and the Internet can be used to provide information and context about genocidal acts wherever they occur, which in turn can spur action, as it did when Pulitzer-winning reporter Roy Gutman exposed death camps in Bosnia.

Technology, social media, can of course be a double edged sword. The urgency of genocide prevention is now greater than ever as the rise of technology makes the spread of hate speech and its incitement to genocide easier and more efficient. If the international community is serious about keeping its promise of “never again,” it must support the development and expansion of the Internet and the media to empower the public to overcome the lack of political will in preventing genocide.