PARLIAMENTARY CONDEMNATIONS OF MASS ATROCITIES AND THE OBLIGATION TO PREVENT GENOCIDE AND CRIMES AGAINST HUMANITY.

• Author: Herik, Larissa Van Den

1. INTRODUCTION

   Traditional mechanisms of production of international law, such as treaty negotiations, case law, and even formal declarations made by governments to the international community are the first things that come into an international lawyer or scholar's mind when discussing international law. In the context of international criminal law specifically, Professor Leila Sadat has been a forerunner in further developing the formal architecture of this area of law by taking a lead in the development of a convention on crimes against humanity and through her position as Special Advisor to the ICC Prosecutor. We are therefore very pleased to participate in this special issue honouring her great contributions to international criminal law, and her scholarship on crimes against humanity and accountability more generally. Her activities within the community of international criminal law scholars deserve special mention. By convening a great number of seminars and scholars' fora, Professor Sadat has offered a platform for many academics from different backgrounds and generations to present research and to exchange thoughts. She has thus been a source of inspiration for many.

   In this article, we draw on that inspiration as we consider the resort to legal terminology in the political space. (1) Before international law is proclaimed in auditoriums in Geneva and New York or courtrooms in The Hague, it goes through politicians' and stakeholders' minds and actions. Although international lawyers often see these activities as political actions that do not produce any direct legal effects, they do have the capacity to steer international law into certain directions and thus merit the attention of international law scholars.

   Members of parliament may play a role in discussing international law and putting situations on the agenda and verifying whether state responses are adequate. (2) More recently, parliaments have also taken the lead in labelling mass atrocities as genocide and/or crimes against humanity, as part of a broader pattern that Dirk Moses has called "diplomacy of genocide". (3)

   Using their means of influence, parliaments have been initiating internal discussions on how to classify mass atrocities, issuing declarations and condemnations concerning certain situations. The focus on qualification has often overshadowed the equally, or perhaps even more, important discussion on follow-up measures or actions. This article examines the relevance of parliamentary declarations from the point of view of international law, and it specifically inquires whether and to what extent such declarations can inform and shape international legal responses to mass atrocities.

   The recognition of mass atrocities has become an ongoing feature throughout foreign policy. States have used legal labels such as "genocide" and, to a lesser extent, "crimes against humanity" to name and shame other states that are committing--or have committed--atrocities. (4) In domestic and international courtrooms, calling an event or situation a "genocide" or a "crime against humanity" will trigger civil, international, or criminal responsibility of those involved in that event. However, beyond courtrooms, labelling something as an international crime is also, and primarily, a political activity. (5) Nonetheless, these political acts can still guide state actions and obligations, including the obligation to prevent those crimes from happening, continuing, or escalating. (6)

   The goal of this article is to analyse past and current parliamentary declarations of mass atrocities. It will provide an overview of existing declarations concerning past and ongoing situations, analysing them through two criteria: a temporal and a substantial one (2). Building on from such typology, the article will analyse the potential legal status and value of parliamentary declarations, including how they may inform legal obligations of states, and specifically the obligation to prevent genocide and crimes against humanity (3). In that sense, this article provides an inquiry into domestic legal structures facilitating the application of international law beyond domestic courts, in tandem with a growing interest of international lawyers in foreign relations law. (7)

2. AN OVERVIEW OF PARLIAMENTARY CONDEMNATIONS OF MASS ATROCITIES

   Whether reflecting on historical events such as the Armenian genocide, or reacting to discovery of occurring atrocities, parliaments throughout the world have been using their powers to resonate the opinion of domestic-stakeholders on atrocity events and generally on foreign affairs. Parliamentary condemnations and, more broadly, declarations about mass atrocities in other states' territories are a growing phenomenon. Regional parliamentary entities such as the European Parliament (8) and the Parliamentary Assembly of the Council of Europe (9) have also issued such declarations. This section will zero in on domestic parliaments and will provide an overview of their condemnations against mass atrocities. Although parliamentary condemnations may be remarkably like each other at first glance, they can differ in two aspects: one pertains to the temporal aspect of the events that are part of the condemnations, either past or ongoing atrocities (2.A); and the other pertains to the content of such condemnations (2.B).

   1. Parliamentary Condemnations of Old and Ongoing Atrocities

      Parliamentary condemnations can cover either atrocities of the past or ongoing ones. Depending on when the atrocities condemned occurred, these declarations will have different content and goals, and consequently produce different potential legal effects. Declarations covering historical atrocities may cover reparations, including apologies, whereas those covering ongoing events may go beyond simply acknowledging wrongdoings to also play an important political role in warning the international community that an atrocity is happening and, consequently, they may propose adequate action.

      Parliamentary declarations covering past atrocities (10) have been used by states in relation to two situations. First, there are those acknowledging and recognizing how former colonial powers violated of rights of colonized peoples. In 1989 (11) and 2004, (12) the German parliament recognized that the German state had a special relation with, and a moral responsibility towards, Namibia due to the mass killings of the Herero and Nama peoples. (13) The UK Parliament also recognized that the Belgian colonial government in Congo under the regime of King Leopold could be classed as genocide. (14)

      A second type of parliamentary declarations addresses atrocities committed in past wars, such as the ones where French (15) and German (16) parliaments declared, in 2011 and 2016, that the mass murder of Armenians in 1915 should be classified as a genocide. Following a similar line, several parliaments issued declarations recognizing the 1944 Crimean Tatar deportation (17) and the 1992 events in the Khojaly district in Azerbaijan (18) as genocide. More recently, in 2005, the United States House of Representatives passed a resolution naming the events in Srebrenica as genocide, calling for cooperation with the ICTY and for the recognition of Bosnia and Herzegovina as independent states. (19) These declarations about past atrocities are often presented as part of a broader effort to promote transitional justice, as states recognize wrongdoings, "name-and-shame" those involved in it and call for reparations.

      Parliaments have also been issuing declarations and condemnations concerning ongoing mass atrocities. Especially in relation to ongoing armed conflict, parliaments issue declarations or condemnations about possible mass atrocities, including genocide and crimes against humanity. Following this trend, parliaments such as the United States House of Representatives, (20) the UK House of Commons, (21) and the Dutch Parliament (22) condemned the violence against Christians, Yezidis and other minorities in Syria and Iraq committed by the Islamic State. Along similar lines, Chinese actions against the Uyghur people were condemned by the Parliaments of Parliaments of Canada, (23) the Netherlands, (24) the United Kingdom, (25) the Czech Republic, (26) Belgium, (27) Lithuania, (28) and New Zealand. (29)

   2. Content of Parliamentary Condemnations of Atrocities

      The second aspect of parliamentary condemnations that is worth looking at relates to their substance. While parliamentary condemnations are often acclaimed for their use of specific terminology, and especially the word "genocide", the arguably more relevant question concerns their commitment to subsequent action and their broader engagement with the situation at hand.

      In practice, parliaments have adopted three types of declarations: those that condemn atrocities, but otherwise suggest no concrete measures (2.B.1); those mostly concerning past atrocities and proposing measures related to transitional justice, such as commemorations, apologies, recognition of involvement, etc. (2.B.2); and those concerning ongoing atrocities that are accompanied by concrete proposals for legal or political action aimed at stopping the ongoing atrocities or bringing those responsible to justice (2.B.3).

1. Condemnations Without Concrete Measures

   The first type of parliamentary condemnations refers to those that are composed by a simple declaration about a specific incident. In these declarations, members of a parliament simply recognize and qualify the existence of mass atrocities.

   Recent condemnations of the 1915 Armenian mass murders illustrate how such parliamentary declarations operate. One of the first parliaments to issue a condemnation qualifying those acts as having "the dimensions of genocide" was the Cyprian one, in 1982, (30) followed by many others in that period. (31) In 2004, the Dutch Parliament also passed a resolution asking the Government to, in the...