Preventing Mass Human-Rights Violations and Atrocity Crimes

Preliminary Remarks

The problem of preventing mass human-rights violations and atrocity crimes is one of the key issues in the international relations. It also has implications for other areas, such as conflict prevention, peace and security. Reflections on the prevention of mass violence appeared for the first time in Raphael Lemkin’s writings. At the International Conference on the Unification of Criminal Law in Madrid in 1933, he prepared a proposal for an international agreement that would have provided for the prohibition of acts of barbarity and vandalism, and for the punishment of their perpetrators. By introducing the concept of genocide in the famous 1944 “Axis Rule in Occupied Europe” – in reference to crimes committed in the wider context of the Second World War – Lemkin did not limit his work to the genocide, also electing to recommended actions by which crimes might be avoided in the future. He once again advocated reviews of international and national law on the prohibition of genocide and on the practice as regards punishing criminals, as well as the establishment of institutions and mechanisms that would allow for effective control of practice during enemy occupations.¹

The idea of the prevention of future wars, as included in the United Nations Charter of 1945, as well as the prevention of genocide taken into account in the Convention on the Prevention and Punishment of the Crime of Genocide from 1948, represented important steps in the fight against violence, but did not prevent great suffering of populations on a fairly regular basis, as in Cambodia, Iraq, Guatemala and Tibet in the Cold War era, or in the former Yugoslavia, Chechnya and Rwanda in the 1990s. However, the cases arising after 1989, when both countries and international institutions showed their ineffectiveness (e.g. in the former Yugoslavia) and/or their passivity and indifference (e.g. in Rwanda) constituted motivation for a change of thinking regarding the essence of human-rights protection and the role of both states and the international community in that regard. The disasters surrounding responses in Somalia and Srebrenica drew them to prevention, as UN Secretary General Kofi Annan stated explicitly, ←9 | 10→in a famous speech at the UN Human Rights Commission in 1998. For him, the upcoming new century had to be the age of prevention.2

The issue of prevention was also an important part of the concept of Responsibility to Protect set out in the 2001 Report of the UN’s International Commission on Intervention and State Sovereignty, as well as the key element thereof accepted and adopted by the General Assembly in 2005. It was clear that progress in the approach to the prevention of mass human-rights violations and atrocity crimes would not be possible without prior discussion and work on conflict prevention. In the 2001 Report on the prevention of armed conflicts, Secretary-General Kofi Annan referred to a transition to a preventive culture, and also the need to look through a prevention lens as action in the name of development was taken.³ Furthermore, the concept of the prevention of conflicts and mass human-rights abuses and atrocities has been taken on board by the United Nations, regional organisations, numerous non-governmental organisations and states in line with the basic fact that prevention seems certain to generate fewer costs – of both a human and material nature – than responding to crises. In practice, the international reaction has often come too late in the past, and thus been accompanied by civilian casualties and refugee flows.⁴

It is important to recognise as positive (in both practice and research terms) the shift from interest confined to the prevention of international conflicts to one in which the prevention of internal conflicts is also on the agenda. Similarly, there has been a move beyond the perspective and paradigm of security towards one of civil protection, the combating of inequalities, and the building of national preventative capacity.

All of this means that research into the prevention of mass human-rights violations and atrocity crimes requires an interdisciplinary approach of relevance to researchers in international relations.

Conceptualisation of the terms

For the purposes of this work, it is necessary that the categories of prevention and mass human-rights violations and atrocity crimes should be defined. Both are problematic, however. Researchers on the prevention of genocide and other crimes often refer to the definition of prevention presented in the Carnegie Commission’s (1997) Final Report on Preventing Deadly Conflict.⁵ The authors there distinguished the categories of “structural prevention” and “operational (direct) prevention”, where the former concerns long-term action vis-à-vis the root causes of conflict, taken with a view to achieving security, wellbeing and justice for all. This is then a matter of solving structural and systemic problems, including helping a state to build democracy and socio-economic infrastructure. The Report also recognised peace-building activities as part of structural prevention, which thus demonstrates a broad and comprehensive approach adopted.

In turn, the aforesaid operational prevention encompasses actions taken in the face of a sudden crisis and immediate danger. It entails perpetrators being deterred, and their actions impeded. If that does not bring the desired results, it then becomes critical for violence to be stopped, and the escalation of conflict and numbers of subsequent victims averted. Operational prevention can thus be taken to include preventative diplomacy, investigations and peace-keeping activities.⁶

Mass violations of human rights and atrocity crimes, though potentially both causes and consequences of conflicts, are also committed in time of “peace” or in the context of internal riots. In defining prevention for the purposes of this study, the author assumes that prevention means taking action to avoid massive human-rights violations and atrocity crimes. However, unlike in conflict prevention, here greater attention is paid to the goal than to situations such as crises, which should not be prerequisites for the taking of action to prevent mass human-rights violations and atrocity crimes.

The aforementioned 2001 Responsibility to Protect Report dealt with civil protection and response to severe suffering, and thereby introduced a division of action potentially taken by the international community into the spheres of prevention, response and reconstruction. It is worth mentioning that the extent of prevention corresponds in part to the response to human suffering and to the ←11 | 12→restoration of protection for human rights. For example, the use of economic sanctions can be regarded as a response and prevention tool at one and the same time. Likewise, post-conflict reconstruction is often aimed at preventing any recurrence of human-rights abuses. This all ensures that a precise definition or delimitation of the scope of preventative action will not prove fully possible.

Attempts to address mass human-rights violations not defined in international human rights law also raise doubts. Violations of human rights can concern individuals or have an individual character, or may be mass and systematic. The relevant literature also identifies gross or serious violations of human rights. The distinction between individual cases and mass human-rights violations is not easy, as the latter obviously comprise large(r) numbers of individual violations. It is difficult to establish a limit of how many individuals must be affected for violation to be considered to have assumed a mass-scale. The burden of infringements is an equally important issue. Violations of not all human rights will be considered gross, with attention tending to be confined to the most fundamental and important rights, especially the right to life, as well as freedom from torture, slavery or arbitrary deprivation of liberty.7 The importance of the right to life should be emphasised. It is the number of victims and the fear of arbitrary deprivation of life, systematic, targeted attacks on the population and all actions aimed at eliminating population groups that have proved most outrageous and mobilising for both the public opinion and the international community.

Along with the concept of Responsibility to Protect, a category of atrocity crimes was arrived at. This was not set out in the 2001 Report itself, but did arise in the wake of the adoption of the 2005 General Assembly Final Document. Thus, the latter’s scope was narrowed to genocide, crimes against humanity, ethnic cleansing and war crimes.⁸ The definitions of these (except in the case of ethnic cleansing) are as provided for in the Statute of the International Criminal Court. Other similar categories include: mass crimes, mass atrocities, mass murder, muss killings and mass violence. However, none of these categories are fully satisfactory, and nor are they in fact crucial for preventive action to take place. For, at the stage of prevention, it is impossible to decide whether there will ←12 | 13→be genocide or crimes against humanity and, in relation to that, to differentiate actions taken and make choices of instruments in line with the situation. The effort made by the Special Advisor for the Prevention of Genocide relates to the early warning stage, with any attempt to qualify crimes in advance of their even being committed necessarily having a limited impact on ways in which institutions become further involved.

Assumptions and research hypotheses

Thus, the prevention of mass human-rights violations and atrocity crimes in the first place requires the involvement of states and national institutions. Protecting the population is primarily the task of governments, which in turn bear the primary responsibility-cum-liability should mass crimes arise. However, post-1989 there was a steady increase in states’ interest in enriching their foreign policies with consideration of serious and mass human-rights violations. States declared that the violation of rights elsewhere falls within their own legitimate interests at the CSCE forum in Moscow in 1991 and in the context of the Vienna Declaration adopted at the end of the 1993 Vienna Human Rights Summit. The 1990s’ discussion on the role of the international community, including a possible role intervening on humanitarian grounds, was a natural continuation of changed thinking as regards human rights and the vulnerability of populations. As it took shape, the key concept of Responsibility to Protect encompassed a new approach to state sovereignty, holding that a government’s failure to ensure protection domestically gives rise to a responsibility of the same nature at the level of the international community.

The involvement of states and international institutions in the prevention of mass human-rights abuses and atrocity crimes, as well as the instruments applied and their significance, have all been the subject of this study.

Two time intervals turned out to be significant in the course of the research. First, the end of the Second World War and the establishment of the United Nations (UN) in 1945, accompanied by the idea of saving future generations from the suffering of war. It was also the beginning of the formation of an international system of human rights protection with a significant preventive “load.” The second symbolic moment was the aforementioned announcement by the UN Secretary General in 1998 to increase the Organisation’s efforts to prevent genocide and other crimes. On the one hand there was an increase of the interest in the problem of preventing mass human suffering, and on the other hand, in the potential and competences of international institutions, especially after the recognition of Responsibility to Protect in 2005 by the UN General Assembly.