International Responses to Mass Atrocities in Africa. Kurt Mills
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people helped by humanitarians live to see the end of the war in which they are caught, and even those in hospices will appreciate the efforts undertaken to ease their pain and make them comfortable as the inevitable happens. Yet taking war as inevitable imposes rather severe limits on the goals of humanitarians. At the same time, some humanitarians do not take the inevitable as such, and attempt to go beyond palliation.
Humanitarianism as palliation engages with many different interests and perspectives. The ICRC may see palliation as the ultimate expression of humanity—you are keeping people alive for this one day, and hopefully the next, and the one after that, and so on.30 And many other IHOs also see this as their humane goal, while others want to go beyond palliation and find a cure—that is, address the root causes that are leading to the disease of war, which is killing so many people. This creates operational problems. It also brings them into conflict with others who may prefer palliation as state policy. That is, while states—especially rich Western states with the resources to put toward stopping conflict—may want to see a particular conflict stop and prevent people from being killed—they do not necessarily want to invest the resources (troops) to do so. Palliation thus becomes the preferred course of action, and a substitute for more robust action. Thus, to bring the medical analogy to a close, instead of bringing in surgeons (troops) to excise the tumor of war and genocide, states bring in hospice workers (humanitarians) to keep people alive until the war ultimately kills them.
This recourse to the humanitarian international,31 or the Land Cruiser Brigade,32 appears to give IHOs significant power in the midst of conflict. Yet it also brings with it many problems as humanitarians become politicized, wedded to one side in a conflict, and perceived, according to Michael Hardt and Antonio Negri, as the “mendicant orders of Empire,” “some of the most power pacific weapons of the new world order.”33 The white Toyota Land Cruisers of the IHO become a representation of the international community’s response to conflict—more evocative than the armored tank—taking humanitarians into a realm of high politics, which conflicts with their humane palliation. As Michael Barnett and Thomas G. Weiss argue, “Humanitarianism has become institutionalized, internationalized, and prominent on the global agenda. It is an orienting feature of global social life that is used to justify, legitimate, and galvanize action.”34 As a result of the changing nature of conflict,35 humanitarianism has become embedded within contemporary conflict. Of the three responsibilities that are at the core of this book, humanitarianism (palliation) has the most well-defined set of principles and the longest practice. Although it may have different interpretations and meanings, it is recognized and accepted as a good thing, an expression of our ultimate humanity. It is, in fact, recognized as a duty or responsibility of the international community.36 This makes it a very powerful tool, not only for humanitarians themselves but for other actors who may want to use it for purposes other than what its supporters and practitioners may wish.
International Criminal Justice: The Responsibility to Prosecute
The modern international criminal justice regime, too, has its roots in the attempts from the mid-nineteenth century onward to regulate how war is fought. While perhaps only successful at the margins in limiting the death and destruction of war, international humanitarian law laid the groundwork for the criminalization of certain practices of war. The introduction into international law of crimes for which individuals can be punished theoretically changes the calculus of decision makers—both those waging war and those attempting to stop a war. However, its broader positive effects—including deterring individuals from undertaking certain outlawed activities—will likely be a long time coming. But, of the three responsibilities laid out here, it is the most legalized37 and embedded in international law.
While there were previous instances of individuals being prosecuted for committing atrocities in war and violating the norms of the day,38 we must look to the aftermath of World War II for the true roots of the international criminal justice regime and the evolving “responsibility to prosecute.” In 1943, the Allied powers, in the Moscow Declaration, decreed that Germans who committed war crimes would be tried in the countries where the atrocities occurred, although the worst crimes would be tried by the Allies themselves. Soon after, the Allies created a UN Commission for the Investigation of War Crimes, which created a draft treaty for an international war crimes court. After the war ended, the Allies created the International Military Tribunal at Nuremburg to try those most responsible for atrocities during the war. A second tribunal was set up in Tokyo to try Japanese war criminals. The four crimes prosecuted at Nuremburg were crimes against peace, aggression, war crimes, and crimes against humanity, the latter of which had appeared after the massacres of Armenians during World War I.39 The latter three would appear in the Rome Statute of the International Criminal Court more than forty years later.
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948. Although the term genocide was not used until 1944,40 and was not accepted by the judges in the Nuremberg trials,41 some of the elements of the crime of genocide did appear under the general heading of crimes against humanity, and genocide has become the über crime—the worst of all imaginable things one can do in war. As will be seen, this status leads to sometimes strange results as all other crimes are compared to it in international discourse. The crime of genocide is defined, in part, as engaging in certain actions “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” The actions include killing members of the groups and other elements of harm. While similar to crimes against humanity, it includes the element of intent to wipe out a group, and it is this intent which, in some way, makes it worse than the same actions without the mens rea42—the intent to wipe out the group.
The 1949 Geneva Conventions represented a significant point in the history of the attempt to “humanize” war. In addition to providing a basis for humanitarian action, it also further elaborated what states and individuals could and could not do during war and created a legal basis for individual responsibility for violations of the laws of war—war crimes. However, while the International Law Commission investigated the creation of a court to try individuals for international crimes,43 and other international conventions were created to outlaw associated human rights abuses, such as the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Cold War prevented any significant development. This changed in the 1990s when, in the aftermath of the Cold War, the international community was faced with a number of conflicts that seemed to defy adequate UN involvement to properly address and stop the conflict.
International Criminal Justice During and After Conflict
In 1991 war broke out in Yugoslavia as, in the aftermath of the end of the Cold War, parts of the country attempted to break away and create their own, independent countries. One significant element of the war was the ethnic dimension, as people were targeted because of who they were. Thus Bosniaks—Muslim Bosnians—were killed or pushed out of areas to create ethnically “pure” areas for Serbs and Croats. This became known as “ethnic cleansing.” This term was used instead of genocide—even though many of the activities fit the definition of genocide—to reduce pressure on the international community to intervene.44 The Genocide Convention and the “never again” norm would conspire to put pressure on the UN, and especially Western states, to intervene militarily to stop the killing and protect those being targeted. European states had an interest in the conflict in the form of the refugees flooding into Western Europe, although, rather than intervention initially, this led to the aforementioned “right to remain,” and the safe havens that turned out not to be very safe.45
While the UN put in place a peacekeeping force, the UN Protection Force (UNPROFOR), it was relatively weak, without a robust mandate for civilian protection or the resources to carry out such a mandate. And the humanitarian response was hampered by parties to the conflict. Eventually, three years into the conflict, NATO took robust military action, which eventually led to an end to the fighting.46 Before that, however, the UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY) to try individuals from all sides in the conflict. It was the first time since the end of World War II that an international court had been set up to