Strengthening the responsibility to prevent: reforming the United Nations' genocide and mass atrocity prevention efforts through emphasis on rule of law.

Author:Salk, Rebecca
 
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  1. INTRODUCTION II. BACKGROUND ON THE U.N.'S RESPONSIBILITY TO PROTECT DOCTRINE A. Implementation of RtoP B. Strengthening the Doctrine: A Focus on Prevention C. Rule of Law as a Tool for Prevention III. DIAGNOSTIC A. The Current Use of U.N. Prevention B. The Current Use of Rule of Law by the U.N IV. PROPOSAL A. Reform OSAPG for Earlier Warning B. Coordination of Partners to Implement Rule of Law C. Potential Limitations V. CONCLUSION I. INTRODUCTION

    When Raphael Lemkin, a Jewish lawyer and political refugee from Nazi-occupied Poland, first coined the word "genocide" in 1943, (1) he sought to alert the world to the extreme devastation of the Jewish population in Europe, and hoped that ultimately the international community would recognize genocide as a punishable crime. (2) Following the creation of the united Nations, Lemkin continued to work toward his vision, which was ultimately achieved in 1948 when the U.N. adopted the Convention on the Prevention and Punishment of the Crime of Genocide. (3) The U.N. defined genocide as any act committed "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." (4) Lemkin strongly believed that the Convention was a mechanism powerful enough to prevent leaders like Hitler from undertaking genocide. (5) When pressed by the New York Times on the issue, Lemkin replied, "Only man has law. Law must be built, do you understand me? You must build the law." (6)

    Despite the efforts of the U.N. and other organizations following the Holocaust, the international community has continually struggled to respond to humanitarian conflict and genocide in an effective and timely manner, if it responds at all. From the end of World War II to the year 2000, over sixteen million people were killed in internal conflict, while 3.5 million died in international wars. (7) Indeed, as international relations scholar Thomas Weiss has noted, there has been "a dramatic disconnect between political reality and pious rhetoric." (8)

    Nevertheless, Lemkin's vision for law and the prevention of genocide should not be considered a lost cause. This Note focuses specifically on the role of the U.N. in preventing genocide and mass atrocities (9) and aims to demonstrate that the U.N. can better use law as an effective mechanism to do so, albeit in a different way than Lemkin originally articulated. In what follows, the Note argues that the prevention aspect of the U.N.'s Responsibility to Protect doctrine ("RtoP") can be strengthened by emphasizing rule of law initiatives in countries prone to internal violence, as most prevention efforts by the U.N. to date have dealt solely with "early warning" mechanisms. Section II explains how RtoP functions, the inconsistencies of the doctrine's application since 2006 and the need for a renewed focus on prevention. Section III describes the current state of U.N. Prevention and rule of law, exposing the flaws of each and identifying room for growth. Finally, Section IV proposes that the U.N. should formally adopt rule of law initiatives as part of RtoP to better prevent genocide and mass atrocities. Section V concludes.

  2. BACKGROUND ON THE U.N.'S RESPONSIBILITY TO PROTECT DOCTRINE

    Following the devastation in Darfur, Kosovo, Liberia, Rwanda, Sierra Leone, and Srebrenica in the 1990s, the international community came together to address how it could prevent and better react to such crises in the future. (10) The concept of the "responsibility to protect" was introduced in the International commission on State Sovereignty ("ICISS") report in 2001. (11) The report articulated three equally important duties: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. (12) Four years later, the U.N. agreed upon the Responsibility to Protect Doctrine in the 2005 World Summit Outcome Document. (13) As of November 2014, the U.N. Security Council ("Security Council") has referenced RtoP in twenty-five resolutions since 2006. (14)

    The doctrine describes the international community's responsibility to act in the limited circumstances of "genocide, war crimes, ethnic cleansing and crimes against humanity." (15) Prior to RtoP, the international community's commitment to protecting the populations of other states was not explicitly articulated. Although the very first article of the U.N. Charter ("Charter") states that the U.N. ought to take collective measures to prevent threats to peace, (16) Article 2 specifies that nothing within the Charter authorizes the U.N. to intervene "in matters which are essentially within the domestic jurisdiction of any state." (17)

    Significantly, RtoP contravenes traditional notions of state sovereignty as expressed in the Charter. (18) RtoP proclaims that states not only have a duty to their own population, but to those beyond their borders in limited circumstances. (19) As such, RtoP involves three pillars of responsibility: (1) the primary responsibility of the state to protect its own population from the above mentioned crimes; (2) the international community's responsibility to assist the state to fulfill its responsibility to protect; and (3) the international community's responsibility to take "timely and decisive action, in accordance with the Charter, in cases where the host state has manifestly failed to protect its population" from the above crimes. (20) As stated, these responsibilities extend beyond reaction to crises; the doctrine requires states to work to prevent humanitarian crises as well. (21) Lastly, it is useful to note that any use of force "necessary to maintain or restore international peace and security" must be authorized by the Security Council. (22) Section II.A of this Note discusses RtoP's implementation in various contexts since its adoption. Section II.B explores how RtoP can potentially be strengthened with a focus on preventative measures and why doing so would be beneficial. Lastly, Section II.C looks at the link between rule of law and genocide prevention and suggests that strengthening that link would be one way to improve upon current U.N. prevention efforts.

    1. Implementation of RtoP

      Since 2005, numerous national governments have endorsed RtoP. (23) Germany, France, Norway, the United Kingdom, and the United States have each made such an endorsement in national strategic policy papers. (24) Since 2010, forty-three countries have appointed "Focal Points" to serve as national coordinators of RtoP to assist in monitoring emerging crises. (25) In addition, RtoP has spawned a variety of NGOs and regional organizations that work to support its implementation. (26) Although RtoP is not without its critics, (27) the disagreements surrounding RtoP seem to primarily deal with implementation issues, rather than the merits of the doctrine itself. As U.N. Secretary General Ban Ki-moon explained in 2011, "[o]ur debates are now about how, not whether, to implement the responsibility to protect." (28)

      Given the disagreements about how RtoP ought to function, its application since 2005 has been inconsistent. Darfur provided the U.N. with its first opportunity to implement the new doctrine, but most assessments consider the international response to have been a failure. (29) From 2003 to 2008, it is estimated that the Sudanese army killed around 300,000 Sudanese in the Darfur region. (30) Although Darfur was continually on the Security Council's agenda and public opinion in the United States and Europe put pressure on political leaders to act, the Security Council failed to take decisive action. (31) The U.N. did not declare a no-fly zone, or fully deploy the African Union-United Nations Mission in Darfur (UNAMID) forces to protect the internally displaced. (32)

      In contrast, the U.N. took decisive action in Libya in 2011, which was agreed upon both "immediately and unanimously." (33) In February 2011, Libyan civilians rebelled against their leader Muammar el Qaddafi's oppressive regime. (34) Qaddafi responded with a brutal crackdown, "vowing to track down and kill protesters 'house by house." (35) Later that same month, the U.N. Security Council passed Resolution 1970, which referred the case to the International Criminal Court, banned travel to Libya, froze Libyan assets and instituted an arms embargo with Libya. (36) Simultaneously, the Human Rights Council passed Resolution S-15/1, which referenced RtoP and led the General Assembly to suspend Libya from participating. (37) Shortly afterwards, the Arab League suspended Libya from its sessions. (38) Less than one month later, the Security Council imposed a no-fly zone at the Arab League's request and authorized "all necessary measures" to protect Libyan civilians. (39) 40 This was considered a successful multilateral effort that was made possible not only by Western countries, but also with regional support. (40)

      Although the U.N. acted decisively with respect to Libya, RtoP's application has since been inconsistent. The conflict in Syria, which has been ongoing since the spring of 2011, (41) is particularly demonstrative of the doctrine's questionable influence. As of September 2014, more than three million Syrian refugees are registered in neighboring countries, and nearly seven million people are internally displaced. (42) Between October 2011 and May 2014, Russia and China vetoed four Security Council resolutions designed to hold the Syrian government accountable for mass atrocity crimes, including a resolution that would have referred the Syrian government's activities to the International Criminal Court for investigation. (43) Though the Security Council adopted Resolution 2118, which calls for the destruction of Syria's chemical weapons, and Resolutions 2139 and 2165, which "[reaffirm] the Syrian government's primary responsibility to protect the population," (44) 45 Syrian civilians remain at risk as state forces and their affiliates continue to commit mass atrocity crimes. (45)

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