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Introduction

Responding to Mass Atrocities

The core concern of this book is how have, can, and should mass atrocities be addressed? It is thus historical, analytical, and normative. It is historical because it examines how the international community responded to four cases of mass atrocities, although three of these situations are, in one way or another, still ongoing. It is analytical in that it provides a typology of the different types of responses and how these responses interact. It is normative because it begins with the underlying assumption that the international community should “do something” about mass atrocity situations, and that the “somethings”—military intervention to stop atrocities, holding individuals criminally responsible for atrocities, and providing basic assistance to help people survive the broader effects of mass atrocities—are all important developments and may all be appropriate, although perhaps appropriate in different ways and circumstances.

The first response—the use of military force to protect civilians and stop atrocities—is a core part of what has come to be known as the responsibility to protect (R2P). It follows from previous debates over humanitarian intervention, but is a reflection of a radical shift in the perceived balance between sovereignty and human rights. The second response I call the responsibility to prosecute, since it stems from an expanding recognition that those who commit atrocities should be punished. The third response I call the responsibility to palliate, because although there are significant humanitarian urges to help people in the middle of conflict, this particular response usually can do little more than treat the symptoms of a much more complicated situation. Taken together, these three sets of norms and practices are identified as R2P³—responsibility to protect, prosecute, and palliate. These responses, even though they are all rooted in an urge to stop human suffering, are very different types of actions. They accomplish very different things, over different timescales, and on different orders of magnitude, and are accomplished by very different types of actors. But the big question is whether they accomplish these different things in a mutually supporting way, where all the elements of the broad human rights edifice work seamlessly together to underpin this edifice. It will be obvious that the answer to this question is that there may be very significant trade-offs in using these responses—political trade-offs, practical trade-offs, normative trade-offs—and that they may not always be mutually supporting.

Policymakers are thus faced with a series of conundrums as they try to figure out how to protect people and keep them alive in the midst of conflict, while also preventing and ending conflicts and bringing perpetrators to justice. Military intervention might facilitate the delivery of humanitarian assistance—or it might endanger it. Issuing an arrest warrant might bring combatants to the negotiating table—or it might undermine a peace process. Providing humanitarian assistance might keep people alive in the midst of conflict—or it might contribute to the continuation of the conflict. Yet the international community has agreed that it has a responsibility to do each of these things to protect people and end suffering. So how does one prioritize responsibilities? This book provides no easy formula—the dynamics are fiendishly complex. However, by clearly delineating these manifold conundrums, and exploring how they play out in a variety of circumstances, the job of implementing these international responsibilities and stopping mass atrocities becomes a little clearer.

Defining Atrocities

The term mass atrocities is not unproblematic, given that language is employed to support action, prevent action, or cover up inaction in the face of widespread grave human rights abuses. I use the term “mass atrocity” here to include genocide, crimes against humanity, some war crimes, and ethnic cleansing. Genocide appears to have the most straightforward definition—“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,”¹ although the devil is in the detail, and in particular the assertion of the intent. Crimes against humanity are defined in the Rome Statute of the International Criminal Court (ICC) as including murder, extermination, forcible transfer of populations, torture, rape and a number of other acts undertaken in attacks against civilian populations (Article 7).

War crimes may be understood as

serious violations of international humanitarian law directed at civilians or enemy combatants during an international or internal armed conflict, for which the perpetrators may be held criminally liable on an individual basis.²

Ethnic cleansing has been defined as “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”³ Although there is no recognized crime of ethnic cleansing, it is against international law and would involve grave breaches of international humanitarian law, as well as potentially genocide and crimes against humanity.⁴

The term mass atrocity is preferred for its simplicity in avoiding having to write out “genocide, crimes against humanity, war crimes, and ethnic cleansing,” although there will be instances where one must be specific about the crimes being discussed to communicate the magnitude of the crimes and the interests of humanity in responding.⁵ As to a formal definition, I draw on the definition used by the Mass Atrocity Response Operations project: “widespread and systematic use of violence by state or non-state armed groups against non-combatants.”⁶ On the one hand, it elides the use of the emotive term “genocide,” which cries out “never again” and demands action—that “somebody” should do “something”—and thus will be controversial. It appears to undermine gravity and immediacy. Yet all too often scholars, journalists, and diplomats get caught up in language that obfuscates rather than illuminates a situation. In Rwanda, western leaders fell over themselves with awkward linguistic constructions to avoid calling what was happening genocide—referring instead to “acts of genocide”—while in Darfur, there was much discussion about whether to call what was happening genocide or crimes against humanity. But in the end it did not matter whether President Bashir of Sudan or the Hutu leadership in Rwanda could be positively identified as having the intent to wipe out a specific group of people. The same people were dying—even though such language may be strategically deployed at times, I doubt that the victims or their families cared what those on the UN Security Council called it. Thus, mass atrocities⁷ will be used as an analytic category to indicate situations where large numbers of people are dying or otherwise being widely affected as a result of genocide, crimes against humanity, widespread war crimes, or ethnic cleansing. “Mass atrocities and associated humanitarian crises” may also be used to signal a recognition that most humanitarian crises are political in nature and tied into larger patterns of human rights abuse.

Conflict in Africa

The international responsibilities in mass atrocity situations discussed above are embedded within evolving political, geostrategic and normative realities. Globally, human rights norms and machinery are expanding and spreading, although ambiguously. The UN Security Council has become increasingly involved in human rights issues even as there is increasing tension between the traditional powers on the Security Council and a restive developing world, with emerging powers demanding more representation at the apex of global power, bolstered, again, by charges of neocolonialism. The responsibility to protect has been affected by the same charges, but there is hardly unanimity. Other global developments, such as the ICC, further underpin an expanding institutionalization of human rights, even as there is pushback against its focus to date on Africa and its problematic relationship to the Security Council. But Africa also serves as a stage for the post-9/11 global war on terror and the belief “that ‘failed states’ are ideal staging and breeding grounds for international terrorists.”⁸

Africa has seen both advances and retreats in normative and practical human rights developments. The African Union (AU) Constitutive Act recognized an even more robust responsibility to protect three years before the UN did, although it has failed to implement this in any significant way. The responsibility to protect has found its voice in the norm of “non-indifference” in Africa, but exactly how such a double negative normative construction will be implemented is unclear. Thirty-four African countries are members of the ICC, yet the AU has repeatedly accused the ICC of being biased against Africa and called for it to suspend ongoing cases against Africans. Africa has high hopes for an African Peace and Security Architecture (APSA) and the development of an African Standby Force (ASF), but implementation has lagged far behind the hopes. And although the AU can present a public united front, there are still divisions among African countries and, at times, a reversion to Westphalian notions of sovereignty and anticolonialism that serve to prevent criticism of human rights abuses. Africa wants a larger say in global politics, demanding, for example, more seats on the Security Council, and a more even partnership between the AU and UN.

Africa was chosen as the focus of this book for a number of reasons. From a continental perspective, Africa has been the crucible for much normative development and practical application of norms. The genocide in Rwanda was one of the driving forces for the development of the responsibility to protect, but was also the site of one of the precursors to the development of the ICC. All the prosecutions by the ICC to date have taken place in Africa. The practice of humanitarianism has been significantly affected by experiences in not only Rwanda, but also Ethiopia, Sudan, Somalia and elsewhere. Furthermore, except for Europe, Africa has been the region that has developed most substantially in the area of peacekeeping activities, although even those developments have fallen significantly short at times. Somalia and the Democratic Republic of Congo (DRC), among others, have been the site of significant innovations and failures in the practical application of peacekeeping.

As to why these four countries—Rwanda, DRC, Uganda, and Sudan (Darfur)—the answer is many-faceted. Geographically, they are contiguous, with the DRC and Uganda bordering all three other countries, and Rwanda and Sudan having common borders with two of the others. They all have colonial histories that have significantly affected their modern development, although the experiences and legacies are different, with Sudan and Uganda having experienced British colonialism and the DRC and Rwanda having a Belgian legacy (with resulting French influence). Central and East Africa have been the focus of widespread gross violations of human rights since the end of the Cold War. Burundi, the Central African Republic (CAR), DRC/Zaire, Eritrea, Ethiopia, Rwanda, Somalia, Sudan, and Uganda have all seen a mixture of significant civil conflict, genocide, crimes against humanity, and war crimes, as well as significant humanitarian catastrophes. The conflicts have spread across borders and in many instances become interrelated, affecting neighboring countries like the CAR, Chad, and Tanzania. The conflict focused on the Rwanda-Congo-broader Great Lakes nexus has witnessed untold human suffering and devastation and has pulled in an even wider array of participants. The northeastern corner of the DRC, which borders Rwanda, Uganda, and Sudan, perhaps exemplifies the multinational, multi-actor, interrelated nature of conflict in Africa today. These four countries have each had their own internal conflicts, which have become internationalized as refugees and combatants flow unimpeded across borders, bringing their fighting and suffering to new countries and populations.

Kevin Dunn argues that Uganda’s Lord’s Resistance Army (LRA) has created a cross-border “insecurity complex …. transform[ing] a microregional conflict into a macroregional zone of insecurity.”⁹ One could expand this further to say that multiple dynamics have contributed to a regional insecurity complex that involves a dizzying array of state and nonstate actors and transcends sovereign boundaries even as those boundaries play a significant role in structuring multiple conflicts and widespread political and human insecurity. As will be seen, the Rwandan genocide and lack of international response led directly and inexorably to two decades of war in eastern DRC, millions dead, and the intervention of around a dozen countries, even as internal Zairean/Congolese dynamics proved fertile breeding ground for conflict. The spread of the LRA beyond Uganda pulled Uganda into the DRC and southern Sudan, as well as the CAR. Uganda was also the staging ground for the Tutsi invasion of Rwanda that ended the genocide. Sudan endured civil war for two decades—and used the LRA as part of its war against the south—before a relative peace was established and a new country was born in South Sudan. But it was the conflict in Darfur—in the western part of the country—that brought issues related to the responsibility to protect and international criminal justice to the fore, posing some of the first real tests for both R2P and the ICC—and the AU.

The conflicts are directly related, but they have all served, in a sense, as part of an African proving ground for the global responsibilities and responses at the core of this book. The international community has dealt with these conflicts in varying ways, which perhaps reflects partly the particular internal and regional dynamics of the conflicts, but also the broader geopolitical perspectives and interests of the main global powers. The response has ranged from apathy to a range of innovative, but not necessarily completely satisfying, actions. Rwanda highlights the dangers of ignoring genocidal situations and trying to use nonstate actors—humanitarian organizations—for activities that states and state-based organizations like the UN should be undertaking. It illustrates the vast unintended consequences humanitarians can have as they carry out their humanitarian imperative. And it was a testing ground for newly resurgent international criminal justice norms. The DRC was a reflection of those unintended consequences, but also of the inability of the international community to adequately respond to a fiendishly complex set of conflicts that spread across vast ungoverned spaces and borders. The UN slowly ratcheted up its response, declaring the protection of civilians its highest priority, and, in a very uneven, punctuated fashion, it tried to put this determination into effect. Even with millions dead, there was nary a whisper of the highly politicized responsibility to protect, even as the UN undertook proto-R2P activities. The DRC also puts in high relief the politicized nature of the ICC, as cases were chosen and narrowed to fit the specifications of the state. Uganda highlights the dangers, yet again, of the unintended consequences of unreflective humanitarian imperatives. But, most prominently, the very conundrums of inserting a global judicial body into the middle of an on-going conflict became apparent, with an asserted—if not always easily locatable—stark trade-off between peace and justice, as well as between local, traditional justice mechanisms and global, supposedly universal judicial authorities. Darfur also demonstrates this peace versus justice dynamic, although on a more global, geopolitical stage. Darfur was also the first post-R2P conflict, although the eventual international reaction would not have been recognizable to the original authors of R2P, given its tepid implementation and refusal to stand up to the government in Khartoum. Darfur also illustrates how humanitarians could become pawns in larger conflict dynamics.

R2P3

Each of these conflicts will be analyzed through a matrix which examines how the three sets of human rights related norms and practices identified above—protection, prosecution, and palliation (R2P³)—are understood, are implemented and may interact with each other. Chapter 1, which outlines and critiques the responsibilities and the actors who have taken on the responsibilities, develops the matrix, highlighting the major conundrums and tensions inherent in each of the responsibilities and their interactions. At the end of each of the subsequent case studies, the matrix for that case is presented, providing a summary of the main issues identified in the case.

While all four cases have elements of the R2P³ triumvirate, each case has a different focus and illustrates a somewhat different set of concerns and dynamics. Rwanda illustrates quite starkly the complex nature of humanitarian action, the trade-offs humanitarians are faced with, and the very difficult situation they can find themselves in when states and the UN refuse to act. It also demonstrates the potential for disaster when an adequate response to mass atrocities is not forthcoming. The DRC was this disaster. The particular focus here is the very slow development of military responses to widespread atrocities via peacekeeping and the protection of civilians concept. In only very rare instances did action that resembled R2P take place. Rather, most activities began with, and developed from, more classical understandings and practices of peacekeeping evolving into what Gareth Evans calls “peacekeeping plus.”¹⁰ The conundrums facing the ICC as it finds its feet and tries to gain state cooperation also feature. In Uganda, the story starts with the very ambiguous role of humanitarians in ultimately supporting state-sponsored forced displacement, but soon moves into a discussion of the proper role of the ICC in on-going conflicts. Central is the ongoing debate about whether there is a trade-off between peace and justice. Darfur, too, features the role of the ICC in ongoing conflict and its place in the increasingly complex arena of international security. We see tensions mount between the ICC and an increasingly assertive AU. Darfur also served as the first real test for R2P—a test it failed. In each of these cases, we further see conundrums and trade-offs as multiple responses are deployed simultaneously, illustrating, for example, the potential conflict between humanitarian action and civilian protection, or how the presence of the ICC may endanger humanitarian action.

A significant focus and element of the story of each of the cases will be the role of major Western states and the UN Security Council. This is because it is these states that have been pushing to a significant extent the responsibilities agenda and, indeed, are its political and financial patrons. They fund humanitarian action and peacekeeping, and, as in the case of Libya, have the requisite capabilities to engage in the most robust action to protect civilians—even if they have been reluctant to actually use those capabilities or provide necessary resources. Indeed, while the rich states provide the money, developing countries provide the majority of troops for peacekeeping operations. And the Security Council serves as a global legitimator or delegitimator of states and actions to address mass atrocities. African states and the AU are also central, since these African situations have been the crucible for the difficult work undertaken to create more capable African institutions and provide an African version of developing norms as part of Africa’s attempt to provide “African solutions to African problems.” The ICC also plays a starring role as a state-created semi-independent global justice actor with significant agency, but which is also under significant political and practical constraints. Humanitarian actors are also crucial to our story. Although at times identified with the broad brush moniker international humanitarian organizations (IHOs), there are significant differences. Some are affiliated with the UN and thus enjoy resources and official mandates even as they are constrained politically. Nongovernmental organizations (NGOs), on the other hand, do not suffer the same political constraints and are sometimes more able to be vocal about realities on the ground, but do experience significant situational constraints and are frequently used as political footballs.

Whose Responsibility?

This discussion of the main actors involved in responding to mass atrocities raises other questions about which responsibilities accrue to which agents, and furthermore, what exactly is the status of these responsibilities—are they legal, moral, ethical? These questions are far beyond the scope of this book, which is more concerned with the practical implementation and interpretation of international norms. Many of these questions are addressed elsewhere,¹¹ and Chapter 1 briefly touches on the origins and outlines of the three responsibilities, but some brief observations are in order.

First, the status and nature of these responsibilities varies significantly. The responsibility to protect is not a legal norm. It is a statement of intent, although the exact nature and seriousness of that intent is under question. There is no international law that absolutely requires any entity to militarily intervene to protect human rights, although a vague expectation can be found in the Genocide Convention and numerous statements by state officials over the decades, as embodied in the oft-repeated assertion “never again.” And it is directly tied into more formal international human rights law, which outlaws many of the practices that may demand such intervention. It is thus a moral and political expectation based on decades of human rights development and diplomatic assertions. The responsibility to prosecute is more firmly established as a legal norm, particularly with the creation of the ICC, as well as the practice of universal jurisdiction, which, while it does not have the same firmly institutionalized legal status of the ICC, is a reflection of the expectation found in international human rights and humanitarian law that those who violate the law should be punished. The responsibility to palliate is a mixture of legal and moral norms. The Geneva Conventions talk about the right to offer humanitarian assistance, and the expectation that states will accept such offers. Furthermore, UN Security Council Resolution 2165 (2014) asserts the right of the international community to provide such assistance even in the absence of state consent. And states, through statements and practice, have recognized the necessity of providing such assistance. But, again, there is no international law which decrees that states or other entities must provide such assistance. It is thus a moral norm embedded in evolving international humanitarian law and practice. The expectation that states accept humanitarian assistance appears to be more formalized than the expectation that states provide such assistance in the first place.

Second, as to upon whom such responsibilities fall, the answer is equally ambiguous and multifaceted. The responsibility to protect can, in the end, be carried out only by states and state-based organizations like the UN. Indeed, the UN Security Council is formally identified as the repository of this responsibility (although the AU also claims the right to intervene in Africa). The question becomes what happens if the Security Council does not act. Do other entities have a responsibility? Periodically, regional organizations have taken it on themselves to intervene, as have individual states or groups of states. As the agents that have the capabilities to militarily intervene to stop atrocities, the responsibility may thus fall on states, but the legal and moral considerations in such situations are extremely murky. The responsibility to prosecute accrues to states, which have agreed to criminalize a wide range of human rights abuses and state-based entities created to prosecute such crimes. No other entities have the legal or moral standing to implement this responsibility. This is not so with regard to the responsibility to palliate. While certain moral and legal expectations may fall upon states, and state-based actors, such as the UN High Commissioner for Refugees, have been given a specific mandate—and thus a responsibility—to provide humanitarian assistance, nonstate actors have taken such responsibilities upon themselves, feeling a moral compunction to help those in need—the humanitarian imperative. At times, they have carried out responsibilities that fall upon states—either the target state, which has responsibilities to help its people, or other states and the UN, which have responsibilities to provide such help.

The responsibilities discussed in this book are thus a mixture of legal and moral expectations that fall upon a variety of actors—state, state-based, nonstate. When discussing the “international community” to which such responsibilities accrue, I will refer primarily to states and state-based organizations like the UN, although with a recognition that non-state actors are increasingly important in carrying out such responsibilities.