International Responses to Mass Atrocities in Africa. Kurt Mills
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so they try to stay out of the entire debate.105
Even though PoC may be portrayed as apolitical, it is still political since it deals with highly charged political situations, but it appears to depoliticize situations. In some situations, this may be positive since it allows states to talk about concrete measures to protect people without getting caught in the high politics of sovereignty. On the other hand, these situations are political and require political response at the highest levels, and thus PoC might undermine the debates that need to happen within the R2P framework. Further, to the extent PoC is seen as something that happens in the context of peacekeeping, it can be an impediment to genuine protection in the sense of physically protecting people under imminent threat of harm. If a peacekeeping commander needs to get the permission of the host state to fly helicopters—assuming he or she has been given helicopters and other requisite tools in the first place—his or her ability to deploy troops when and where needed to respond to that imminent threat is severely compromised. While R2P is less accepted as a political, legal, and operational concept, it does bring an element of robustness that is lacking in most peacekeeping PoC mandates and, more important, practice.
Complementary or Conflicting Responsibilities?
I have outlined above the main human rights and humanitarian tools and concepts the international community has to respond to mass atrocities and associated humanitarian crises. In one sense, they all derive from the conceptual and practical developments in the human rights and international humanitarian law regimes over perhaps the last 150 years, but in particular the last seventy years. They all have the same goal—to protect lives. One might assume, then, that they are mutually supporting. That is, the implementation of one would support the implementation of another. As we will see, however, this is not necessarily the case. Indeed, applying one or more of these responses may, in fact, get in the way of, or undermine, other responses. Further, having recourse to one may provide an excuse to diplomats and policymakers not to implement another response that may be more effective. In this section, I will briefly outline some of the conundrums faced by practitioners (see Table 1.1).
Humanitarianism, even in its most basic palliative form, can save lives. Yet, it cannot end the conflicts that lead to atrocities. This requires political action. Nor can humanitarianism save lives in all circumstances—particularly when parties to a conflict have as their goal, or significant tactic, to kill civilians or drive them out of their territory. Yet, as we shall see, the presence of humanitarians on the ground can give the illusion of adequate response when, in fact, the response is far from adequate. More robust action may be required, but the mere presence of humanitarians may reduce pressure on states to act. Thus, palliation reduces the prospects for protection. However, with rights-based humanitarianism, humanitarian actors themselves may be highlighting human rights abuses and calling for further action. This can put pressure on states to take further action, but it can also make their positions as humanitarian actors more precarious. They may either be targeted by parties to the conflict or kicked out of the country by the government, thus reducing or eliminating their ability to provide food and other resources to victims of conflict. As a result, people may die from malnutrition or lack of medical care. So the question becomes whether the greater good of a possible (if unlikely) humanitarian intervention to stop a conflict or more robustly protect civilians from attack is outweighed by the almost certain death of more people because of a lack of humanitarian assistance. This is a rather difficult decision to make. Most NGOs, because of their innate humanitarian ethos and mission, will choose to stay, although on occasion they have decided that they are doing more harm than good, thus violating the “do no harm” principle. There may thus be a negative symbiotic relationship between palliation and protection (notwithstanding humanitarian claims to protection). Palliation saves lives, but it is also significantly limited in what it can actually achieve in protecting people from violence.106 It can also, at times, contribute to the continuation of a conflict, and it also provides a smokescreen for states who do not want to intervene. Calling for intervention might bring further long-term protection, although that is far from certain; it is more likely to reduce the humanitarian assistance available to victims of conflict.
Prosecution can punish people for their crimes. However, inserting prosecution into the middle of a conflict can have unforeseen consequences and require difficult trade-offs. The most obvious is that potential prosecution can have an impact on peace negotiations, with the very unhumanitarian impact of prolonging the conflict. Combatants with arrest warrants against them may be less likely to come to an accommodation, knowing what possible fate might await them. Such international action might also interfere with domestic efforts to institute amnesty laws that might contribute to peace processes and postconflict reconciliation. States that have become a party to the ICC107 no longer have complete autonomy in domestic criminal affairs. At the same time, they may try to use the ICC for their own domestic purposes as a weapon in the conflict.
Furthermore, the ICC poses difficult questions and danger for both palliators and protectors. For palliators, who may have significant information that could be of use to prosecutors,108 they are posed with the same question vis-à-vis intervention. Do they release the information, exposing the crimes, or pass it on to the prosecutors, thus helping to ensure that perpetrators face justice—an outcome which pretty much all palliators would support109—or do they keep silent? Eric Dachy puts it starkly: “either we compromise our ability to aid victims by testifying, or we protect criminals in order to continue to provide assistance.”110 The former action might further one human rights goal, but it could also imperil their activities, as they are branded as informers and targeted or kicked out of the country, thus undermining their humanitarian mission. Most IHOs will follow the latter course of action for this reason, although they may quietly pass information to human rights organizations, which can thus use it for their advocacy activities. This creates a division of labor, which could have positive outcomes—the information gets out, while humanitarian organizations are not recognized as the source of the information.
In addition, ICC action might negatively affect humanitarians, even when they have no connection to the action. They can be tarred with the same brush as human rights actors. Some parties to a conflict might see them as all part of the group of internationals, and blame humanitarians for the actions of their human rights brethren, thus imperiling their actions. More generally, with the development of individual criminal responsibility, combatants have an interest in ensuring that there are no witnesses to their atrocities, including humanitarians, and thus may want to deny them access to protect themselves.111 The ICRC has been granted a specific exemption in the Rome Statute from being called to testify,112 although NGOs have not. During the Rome Statute preparatory meetings, Médecins sans Frontières (MSF) specifically did not request such an exemption, seeing such action as part of its témoignage (witnessing). At the same time, it did not want to be one of the “informal auxiliaries to the justice process” where it participated in a formal evidence gathering function (leaving that, instead, to human rights NGOs).113 Or, as will be seen, they can be used as pawns in other ways.
Also, as with palliation, prosecution can create an excuse not to intervene and protect. It is one more action that can demonstrate that states are doing “something” while not necessarily taking the action required to protect people and stop the fighting. While this should certainly not deter the prosecutors from doing their jobs, the mere fact of the existence of the ICC and other international criminal justice mechanisms can contribute to a more complicated and complex global geopolitical context in which decisions on how to respond to mass atrocities are taken. Although, in some cases, such as Syria, which lies at the heart of extremely complicated global geopolitical dynamics and which engages directly with conflicting great power interests, there is no appetite for even the ICC.
Finally, to come full circle, R2P and related PoC protection activities can have multiple possible outcomes, which may have positive or negative consequences for humanitarianism and human rights. A military intervention might just succeed and end the fighting, which in turn creates space for a political settlement. We have seen precious few of these cases. It might provide a presence, for a time, that has a significant