International Responses to Mass Atrocities in Africa. Kurt Mills
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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.
CHAPTER 1
Interrogating International Responsibilities
[E]mergency humanitarian aid is a new duty encumbent upon the international community…. It obeys the principle that it is a moral duty to help civilians in distress wherever they may be.
The Security Council emphasizes the responsibility of States to comply with their obligations to end impunity and to prosecute those responsible for genocide, crimes against humanity and serious violations of international humanitarian law.
Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity…. The international community, through the United Nations, also has the responsibility … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
This book analyzes how the international community responds to mass atrocities, in particular in sub-Saharan Africa. I argue that as human rights have acquired increasing normative force globally, the international community has incorporated human rights into its responses to violent conflict. In fact, human rights are used to label some conflicts as more heinous and worthy of response than others. Genocide has become the main signifier for worthiness. It is the über crime, the “‘super crime,’”1 the worst imaginable violation of human rights—attempting to wipe out an entire group of people. Its invocation automatically brings about much anguish and angst and hand-wringing—if less actual response—among global political elites and newspaper editorial writers. Genocide invokes cries of “never again” and leads to calls to “do something.” As we shall see, “something” can mean many things, or nothing at all, and might lead to whispers of “yes, again” because those with the means to “do something” may not see it as in their interest to act. They may do “something,” but not necessarily what is required.
The international community has developed three types of responses that respond in some manner to the human rights issues raised by genocide, the “lesser” crimes of crimes against humanity and war crimes, and the vast humanitarian crises that accompany almost all contemporary conflict. These correspond to three responsibilities the international community has acquired over the last decades. The most famous and discussed responsibility—and indeed the one that provides the “responsibility” framework—is the responsibility to protect (R2P). While it incorporates a wide variety of actions, taking forceful military action to stop mass atrocities is the one that most concerns us. It is, in some situations, potentially the most effective response. However, while it has become the most talked about responsibility, it is also the least used. While