By Charley Steur
“Never again”, a phrase often chanted by the international community after the horrors committed by Nazi-Germany during World War II. This strong rhetoric emphasized the commitment and need for action by the international community to prevent such mass atrocities in the future. However, decades later it is clear that the international community could not keep up with this commitment.
Today there is still little international response to prevent and stop signs of genocide and other mass atrocities. The world is, for example, awkwardly silent on the persecution and ethnic cleansing of the Muslim Rohingya minority in Myanmar. On a similar note: Bashar- al- Assad, the president of Syria, has been widely accused of war crimes. However, after six years of violence and destruction, he still sits tight in Damascus. There seems to be a gap between promise and practice in preventing and acting on genocide by the international community, how can this be?
Limitations of International Law
The embodiment of the “never again” promise seemed promising in the immediate aftermath of World War II. Several legal mechanisms were set in place to prevent such happening in the future. The Nuremberg Trials were a starting point for the establishment of the Genocide Convention in 1948. During the Nuremberg Trials the term ‘genocide’ has never been used. It only established that Nazi leaders would be held criminally responsible for aggression and crimes against humanity.
The Genocide Convention consists of nineteen articles. In article 1, the parties confirm that genocide, ‘whether committed in time of peace or in time of war’, is an international crime which ‘they undertake to prevent and punish’. Article 2 contains the definition of genocide: “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. The legal definition does not include the notion of ‘cultural’ or ‘political’ genocide , the hardest thing however, is to prove the intent of such crimes. This makes the Convention very restricted and narrow.
With the drafting of the Genocide Convention progress was certainly made. However, the principle of sovereignty increased in importance after 1945. The UN Charter of 1945 codified sovereign equality and the right of non-interference as a universal principle. As Article 2(7) of the UN charter states: “Nothing should authorize intervention in matters essentially within the domestic jurisdiction of any State”. It clearly prohibits states from interfering in the internal affairs of other states. Therefore, this right to non-intervention causes a tension between humanitarian interventions and state sovereignty.
Genocide throughout the decades
While the immediate aftermath of World War II seemed promising in the commitment of ‘never again’, the principles of non-intervention and sovereignty prevailed throughout the Cold War period. Although allegations of genocide were made quite often by several non-governmental organizations, the Genocide Convention was seldom invoked by states during the Cold War.
This is illustrated by the case of Cambodia. The Khmer Rouge took control of the Cambodian government in 1975, with the goal of turning the country into a communist agrarian utopia. In reality, they emptied the cities and evacuated millions of people to labor camps where they were starved and abused. Doctors, teachers and other educated people, as well as monks, the rich, and anyone perceived to be in opposition were tortured and killed. It is estimated that between 1.7 and 2 million Cambodians died during the 4 year reign of the Khmer Rouge, with little to no outcry from the international community.
Vietnam invaded Cambodia and overthrew the regime and installed a new government. They did this before an UN-committee could investigate the situation of the reported ‘killing fields. Vietnam’s invasion, which stopped the Khmer Rouge from further manslaughter, was highly condemned for its actions by the international community. Even though the Security Council and General Assembly of the United Nations recognized the human rights violations of the Khmer Rouge regime, they also reaffirmed that Vietnam could not justify an unilateral military action. Therefore Vietnam was heavily sanctioned by the United Nations
After the Cold War
Accordingly, the fall of the Soviet Union led to changes in the foreign policy discourse for many Western governments. The non-interference principle was used to justify not taking action in several cases during the Cold War. However, with the end of the cold war, many UN members were much in favor of human rights and spread of democracy. Therefore, in contrast to the Cambodian case, the international response to stop human rights abuses was quite strong and fast in the Iraqi case. The case of the Iraq intervention is marked as a turning point in the new norm of humanitarian intervention under international law. In order to protect the Kurds in Northern-Iraq resolution 688 was issued by the UNSC. Western states saw this resolution as a legitimating argument to justify their intervention. A no-fly zone was set-up over Northern Iraq and Western military forces set up ‘safe havens’ to protect the Kurds. Initially humanitarian claims did not persuade Western states to commit forces to Iraq. President Bush defended the non-intervention principle in fear that this situation would turn into another Vietnam. However, media coverage and domestic pressure made it increasingly apparent that states had a responsibility to involve.
While Iraq is seen as a landmark case in supporting a new normative rule of humanitarian intervention in international law, the case of Rwanda shows the failure of the international community in honoring its commitment of ‘never again’ once again. With alarming intelligence reports of the violent conflict between the Hutu and the Tutsi received by the UN a year before the genocide began in 1994, the international community was reluctant to take action. Genocide Convention signatories have a legal obligation to prevent and punish genocide. This is the reasoning of the avoidance of naming the events in Rwanda genocide by Western governments. This legitimated their decision not to intervene and stop the massacres. There was no state willing to risk its own soldiers and to protect the civilians of Rwanda. Eventually the only exception to the Western neglect was France. It intervened unilaterally and this resulted in ‘Operation Turquoise’ and the creation of safety zones to protect the civilians.
When Bosnian Serb forces started with the ethnic cleansing of their population under the leading of Milosevic the UNPROFOR mission was set in place to provide humanitarian aid and to safeguard a ceasefire between the Serbs and Croats. The European response in Bosnia-Herzegovina concentrated on the legal front. The specific issue of genocide was generally ignored. However, revelations in the media of Serb detention camps for Muslim prisoners had a major effect on public opinion. Besides the domestic pressure and repeated calls for an armed intervention to stop ‘ethnic cleansing’, the overall international response was not to take military action but to give humanitarian aid and to create safe-havens. A turning point in this case is the fall of Srebrenica. Widespread airstrikes against the Serbs were more a reaction to the fall of Srebrenica as a safe haven. The Security Council authorized the airstrikes which led to the Dayton peace agreement. The Bosnian case resulted in setting up the development of a legal framework to punish genocide by setting up a tribunal to try individuals of former Yugoslavia for violations of war crimes, crimes against humanity and genocide.
Strong rhetoric, weak action
It was however decades later that two ad hoc tribunals (that of Rwanda and former Yugoslavia) were created to establish an international legal framework to punish genocide. In addition to this the International Criminal Court was set up and started operating in 2002. Although the creation of these tribunals was slow in coming, the establishment of an international legal framework to punish genocide was finally set in place in the development of international criminal law.
Sixty years after the signing of the Genocide Convention it is clear that the international community did not keep up with the promise of ‘never again’. However. Since the end of the Cold War, the legal framework for punishing genocide, at both national and international levels, has been reinforced. Over time, the international legal development towards the non-intervention principle has progressed. The main developments in international law were the Genocide Convention and the establishment of the ad-hoc criminal tribunals and the International Criminal Court. The international community could not implement it commitment of “never again” due to a lack of willingness, domestic pressure and slow progress to enforce and create norms of behavior.