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Chapter 1

Moving From Repression to Preventionof Genocide

Payam Akhavan and Ren Provost

Much of history is a tale of humankinds capacity for organized cruelty and

violence. Far from being an aberration, conquest and war have been defin-ing features of our collective past, integral to our conceptions of triumphand heroism. Indeed, the infliction of suffering on others has rarely beenconsidered as necessarily evil. Rather, mass violence is always justified byappealing to higher ideals, if not the sacred. In this somber tale of history,the modern era holds a place of distinction. It is an era in which ancientmurderous instincts reached a new stage of perfection, in the ideologicalguise of progress and civilization. Beyond atavistic hatred, totalitarianismushered in a new age of extremes that made the violence of the past pale

in comparison. It inspired the word genocide; a word that captured thetransformation of the once unthinkable into historical reality. The chal-lenge in our times is to consider whether this scourge is inevitable, orwhether it can be prevented.

In contemporary history, the harbinger of rationalized mass-murder wasthe extermination and enslavement of indigenous peoples in the Americas and later in Africa and Asia in the quest for colonial domination. Butit was 20th century Europe itself that witnessed the worst excesses. ThisCentury of Genocide opened in 1915 with the eradication of almost 1.5

million Armenians by the Ottoman Empire. It was followed in 1932 bythe Ukrainian famine in which millions perished under Soviet rule. Itreached its apotheosis with the extermination of 6 million Jews in theNazi Holocaust. This was an unprecedented attempt to systematically eradi-cate entire peoples, rationalized through a pseudo-scientific theory of racialpurity, and implemented on an extraordinary scale by the vast and efficientstructures of the modern State. In the European imagination of the time,this cataclysm could not be dismissed as an expression of Oriental despo-tism or native savagery in distant lands. It occurred in the heart of a

P. Akhavan (B)Faculty of Law, Centre for Human Rights and Legal Pluralism, McGill University,

Montreal, QC H3A 1W9, Canadae-mail: [email protected]

1R. Provost, P. Akhavan (eds.), Confronting Genocide, Ius Gentium:Comparative Perspectives on Law and Justice 7, DOI 10.1007/978-90-481-9840-5_1,C Springer Science+Business Media B.V. 2011


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2 P. Akhavan and R. Provost

much vaunted rational and technologically advanced Western civilizationand shattered the blind faith in modernitys promise of progress.

Such was the scale of this cataclysm, that at the trial of the Nazi leadersin Nuremberg, the French Prosecutor described it as a crime undreamt

of in history. It fell to the Polish jurist Raphal Lemkin to name thisnameless crime. Himself a victim of the Holocaust, he coined the termgenocide to describe the collective destruction of groups on groundsof their identity. His remarkable one-man campaign to outlaw this crimeculminated in the adoption of the Convention on the Prevention andPunishment of the Crime of Genocide by the UN General Assembly on 9December 1948. The following day, the UN General Assembly adopted theUniversal Declaration of Human Rights. Thus, this seminal treaty enshrinedthe absolute evil of the Holocaust and presaged the emergence of human

rights as the global ethos of the post-war order. Amidst the anticipationand euphoria of a new epoch, the Genocide Convention was hailed as atriumph for international law. But the vow to never again allow such hor-rors to happen soon became an empty mantra as millions more becamethe targets of genocide, victims of tyranny and cynicism. Mass-murder inBangladeshs war of secession, Idi Amins massacres in Uganda, the KhmerRouge killing fields in Cambodia, Mengistus Red Terror in Ethiopia, theslaughter of Mayans in Guatemala, Saddam Husseins gassing of Iraqi Kurds,the mass-execution of Bosnian Muslims at Srebrenica, the extermination of

Rwandan Tutsis, these are but sample sections in a sweeping epic of evilin the latter half of the 20th century, following the criminalization of geno-cide. These immeasurable tragedies speak to our repeated failure to giveeffect to righteous declarations and lofty utterances that create the illusionof progress. One step that has been taken has been to revive the interna-tional criminal law regime which had remained dormant since the daysfollowing the Second World War. The ad hoc criminal tribunals created forthe former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and the perma-nent International Criminal Court, all stand for one form of commitment to

react to genocide by holding individual authors accountable for that crime.Yet while we remember, regret, and sometimes prosecute these past abom-inations of the 20th century, another genocide unfolds in the Darfur regionof Sudan. In the opening years of the 21st century, the world appears tofail the victims once more. It seems that never again has become everagain.

Considering its moral enormity, intervention against genocide hasbecome a litmus test for the UN and more broadly a profound challengeto our global conscience. Much has been said and written, by politi-cal leaders and diplomats, scholars and experts, journalists and activists,about what could and should have been done to stop mass-murder as itunfolded. During the 1994 genocide in Rwanda for example, General RomoDallaire, commander of UN peacekeeping forces, called for the deploymentof additional troops. Some credibly claim that this could have stopped the


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1 Moving From Repression to Prevention of Genocide 3

killings and saved hundreds of thousands of lives. Similarly, others havemaintained that in 1995, Dutch UN peacekeepers could have protectedthe Bosnian Muslim population of the Srebrenica safe-area against mass-murder. Such was the political fallout of this revelation that it prompted the

resignation of the Dutch cabinet in 2002. In all of these situations, inter-vention was possible, and opportunities were missed. But in confrontinggenocide, it is necessary to expand the focus of our inquiry beyond thesenotorious incidents of failure, beyond intervention at the last-minute whengenocide is imminent. There is a need for a radically new approach.

The point of departure in preventing genocide is the realization thatsuch extreme violence is not an inescapable reality. Unlike earthquakes,tsunamis, and other natural disasters, mass-murder is not a divinelyordained or spontaneous occurrence. It is not the inevitable expression of

primordial hatred, or an irreversible clash of civilizations between peoplesof differing identities. It may be true that violence is a part of human nature,at least in a perennial struggle with our more noble attributes. At its roothowever, the very scale of genocide invariably requires incitement, plan-ning and aforethought. It is thus a deliberate and calculated political choice,instigated by ruthless leaders who use mass-murder as an instrument ofpower. As such, it is a preventable phenomenon, and it is this pliability ofoutcome that presents the most fundamental challenge in confronting theprophets of doom. While genocide cannot be predicted with mathematical

exactitude, there are indicia, warning signs, that foretell its possibility, andwhich provide an opportunity to arrest hate-mongering and violence beforeit escalates into an all-consuming cataclysm. The urgent need for preemp-tion of mass-violence through more subtle means is only magnified by theproliferation of weapons of mass destruction in an age of global terrorismand the manifest failures of hegemonic militant survivalism as a response.

The challenge before the international community therefore, is to movefrom a culture of reaction to a culture of prevention. By the time that atroc-ities become worthy of headline news, it is usually too late. At this stage

in the progression of violence, the options become increasingly limited.Absent pressing interests by powerful nations, there is no willingness formilitary intervention, and a sense of urgency by a distraught public is soonreduced to compassion fatigue. The time to act is before tensions escalateinto genocidal violence, when the cost of intervention through more modestmeasures is manageable and likely to produce far-better results. In coun-tries such as Macedonia and Burundi, for instance, modest but timely com-mitment of resources such as preventive diplomacy and peacekeeping averted what could have been ethnic war and genocide. It was exactlybecause of their success that these interventions never made the headlines.Prevention is essentially measured by what does not happen. Its invisibilityis not only a virtue but also an enormous challenge, in that it invites factualdenials that there ever was a risk and offers few hooks on which to hang aclaim for a share of available resources within the international community.


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The 1994 genocide in Rwanda is an outstanding example of how a pre-ventive policy could have resulted in a different outcome. Several monthsbefore the systematic mass-murder began in April of that year, UN offi-cials such as General Dallaire had warned of the Hutu extremists plan to

exterminate the Tutsis. He had called for a more-robust mandate for peace-keepers under his command, so that they could disarm extremist militia,but was told to desist. Beyond such preemptive use of force however, whatis truly remarkable is that the mere jamming of the notorious RTLM Radiocould have seriously undermined the gnocidaires capacity to mobilizeRwandas largely rural population. The radio was the sole source of infor-mation for the illiterate majority from which hundreds of thousands wereincited to exterminate the Tutsi by machete and other crude weapons. TheHutus were subjected to a steady stream of fear and hate propaganda that

conditioned them to enthusiastically kill their Tutsi neighbours. Once thegenocide began, the radio even instructed militiamen about the identity andlocation of those targeted for murder. Both the United States and Francepossessed jamming equipment on the ground, but refused to use it. Nevermind that more troops could have been sent to create protective enclavesfor Tutsi civilians it should be considered that the extremists could nothave mobilized their army of thousands of killers merely if RTLM radio wasnot allowed to broadcast. That there could have been a different outcomein Rwanda through such a feasible and cost-effective intervention is a pow-

erful illustration of the unrealized potential of prevention in confrontinggenocide. Every genocide unfolds in its own specific manner, and the recipefor Rwanda does not necessarily transfer to other situations. There is thusa need to systematically and comprehensively analyse the prevention ofgenocide, to identify a toolkit of measures which can be adapted to theever changing circumstances in which genocidal tendencies can fester intomass violence. This collection is an attempt to start such a systematic andcomprehensive analysis.

The book is divided into three sections. Section 1, Reconceptualizing

Genocide, considers that the first step in confronting genocide is anunderstanding of its anatomy. In finding a cure, we must first understandthe disease. The contributions to this Section therefore provide originalanalysis of how genocides unfold, so that preventive strategies can be con-ceived. Section 2, Un/prevented Genocide, moves from the problem tothe solution by examining past failures and successes in preventing geno-cide. The authors take us from the Holocaust to Darfur, from Rwanda toSrebrenica, and consider the available tools for prevention, ranging frommilitary interventions and international criminal trials to economic sanc-tions and diplomacy. Section 3, Prevention Beyond the State, considers arelatively unexplored aspect of the solution beyond the conventional under-standing of global governance. The broad range of options discussed rangefrom civil society activism and the use of peace media to resistance byvictims and use of mercenaries to protect civilians.


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Section 1, Reconceptualizing Genocide, begins with lessons learnedfrom history on confronting injustice, not from the familiar example of theHolocaust and other contemporary genocides, but from two less-studiedcatastrophes of the late 19th and early 20th century that marked an impor-

tant beginning for humanitarian activism against atrocities. Professor BenKiernan of Yale University re-analyzes the Irish Famine of 18451851 andthe brutal exploitation of the Belgian Congo between 1885 and 1920, inlight of contemporary developments in genocide studies. While he con-cludes that the genocide label does not easily apply to either instance, hedemonstrates that those who pioneered civil society activism in responseto these injustices presaged the modern human rights movement, beingamong the first to invoke concepts such as crimes against humanity andto demand an international tribunal to punish such atrocities.

In the following contribution, the acclaimed French historian and experton African conflicts, Grard Prunier, offers a provocative foundational anal-ysis of genocide, criticizing what he perceives as the strict and formalistdefinition in the 1948 Genocide Convention. He identifies what he termsambiguous genocides in history, questioning our compulsion with tryingto assimilate all mass killings to a precise historical event the 19411945extermination of Jews in Europe. Drawing on his knowledge of African con-flicts, Prunier then applies these insights to the slow-motion annihilationstill unfolding in the Darfur region of Sudan, and explores possible solu-

tions, making the controversial suggestion that absent intervention by theUN, military assistance to rebel groups may be the only feasible path toprotecting victims against genocide.

Francis Dengs contribution provides valuable insights on the mean-ing of genocide, derived from his own unique experiences as the UNSecretary-Generals Representative on Internally Displaced Persons from1992 to 2004 and as Special Adviser to the UN Secretary-General on thePrevention of Genocide since 2007. Deng recounts how his work withinternally displaced persons came to be guided by the principle of recast-

ing State sovereignty as a responsibility, implying both accountability andinternational intervention for the failure of States to protect vulnerable pop-ulations. He then applies this framework to the definition and preventionof genocide, in light of his UN mandate.

University of Southern California Professor Douglas Greenbergs con-tribution focuses on one of the key ingredients of genocide: namely, theclose relationship between exclusionary conceptions of citizenship andnationality and ideologies that sustain genocidal violence. He provides anilluminating analysis of the common patterns that can be traced from the

Armenian genocide to the Holocaust, Cambodia, and Rwanda, demonstrat-ing the contemporary relationship between the construction of nationalidentity and group victimization.

Mark Thompson, drawing on his experience as a journalist in conflictzones, explores another theme common to all genocides: the use of the


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media as a conveyor of the ideology of ethnic hatred and violence that isan essential constitutive part of genocide. He provides an original approachby highlighting the tension between Western ideals of free speech and theterrifying potential of propaganda, pointing out that blind adherence to

free speech principles was at least partly to blame for past failures to pre-vent incitement. He includes in particular the example of the refusal by

Western policymakers to shut down the notorious RTLM radio station inRwanda. Thompson advocates a new ethics of communication as opposedto an ethics of self-expression, emphasizing the need for accountabilityin public speech and an awareness of the dangerous link between unre-stricted expression and collective hatred with the potential to escalate intogenocidal violence.

Section 2, Un/prevented Genocide, moves us beyond the definitional

characteristics and warning signs of genocide to the methodology of pre-vention. Both past and present examples of successful confrontations areexamined, and potential solutions explored. Professor Yehuda Bauer of theHebrew University in Jerusalem, a renowned historian and scholar of theHolocaust, begins this section with his own reflections on the preventionof genocide. He explores some of the obstacles to prevention, including thecomplex psychology of killing, the relative unpredictability of genocide, andthe need for intervention to be multi-faceted and pragmatic. Throughout,he provides prescriptions for how various actors and organizations may

succeed in prevention of genocide, focusing in particular on the currentsituation in the Darfur.

Wiebe Arts, who served as a Dutch UN peacekeeper in Srebrenica in1995, has written an extremely valuable and unique soldiers point-of-view on the role of the military in confronting genocide. He explores theconditions necessary for peacekeeping or military missions to succeed inpreventing genocide, using the Responsibility to Protect guidelines on mil-itary intervention as a benchmark. In particular, Arts identifies the needfor sufficient resources, the ability to deal with unreliable parties to armed

conflict, the need for appropriate training, and an element of media savvy,as critical to preventing a repetition of the tragic UN failures in Srebrenicaand Rwanda.

Professor Irwin Cotler of McGill University, former Minister of Justiceand Attorney-General of Canada, argues that beyond troops, the law itselfcan also be mobilized against genocide. Recalling the Canadian SupremeCourts admonition that [t]he Holocaust did not begin in the gas chambers;it began with words, he focuses on the role of domestic and internationallaw in prohibiting incitement to genocide. Cotler expresses particular con-cern with the call for the destruction of Israel by the President of the IslamicRepublic of Iran, Mahmoud Ahmadinejad, arguing that he should be held toaccount for incitement to genocide.

Professor Taner Akam, an acclaimed and courageous Turkish histo-rian and sociologist, considers the persistent denial of the 1915 Armenian


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genocide in Turkey. Akam was the one of the first Turkish academics toopenly discuss this controversial issue. His contribution explores some ofthe motivations driving the Turkish governments refusal to face history,criticizing in particular its claims that doing so would compromise national

security. He argues that defeating such claims and acknowledging historicalinjustices is critical both for prevention of future atrocities as well as thedemocratization process in Turkey.

The eminent South African Judge Richard Goldstone the for-mer Prosecutor of the International Criminal Tribunals for the formerYugoslavia and Rwanda considers the topic of economic sanctions as a keyinstrument of the prevention toolbox. He examines three particular casestudies South Africa, Iraq and Sudan assessing the relative strengths andweaknesses of the use of sanctions in those situations. Goldstone makes

a forceful argument for the potential impact of economic sanctions inpreventing genocide, but conditions this on judicious use tailored to thespecific case at hand.

The final contribution to this Section is a rare Chinese perspective ongenocide by two Chinese scholars, Wenqi Zhu and Binxin Zhang fromRenmin University. Zhu and Zhang summarize Chinas international obliga-tions with respect to the prohibition of genocide, but note the conspicuousabsence of any implementing domestic legislation in this regard. They pro-pose the drafting of new legislation in China criminalizing genocide as

an important step in consolidating the norms and structures required toincrease awareness of mass crimes.

Section 3, Prevention Beyond the State, also considers approaches togenocide prevention, but goes beyond conventional State or UN-centredconceptions of global governance to analyze the role of civil society.Professor Frdric Mgret of McGill University makes a highly original andthought-provoking scholarly contribution, arguing that international lawshould do more to empower the victims of genocide to resist their oppres-sors. He points out that in the past, the vast majority of survivors owed their

rescue not to the chimera of the international community, but ratherto themselves, the courage of strangers or resistance movements. He thusproposes that the best hope in confronting genocide lies in empowering vic-tims, who are often dismissed, even in the law itself, as passive lambs tothe slaughter incapable of devising their own salvation. Instead of focus-ing on ambitious and unrealistic solutions like humanitarian intervention,

Mgret argues that international law should shift its focus to resistance byvictims of genocide.

A related contribution is that of Krzysztof Kotarski and Samuel Walker,who examine a relatively unexplored topic: namely, the potential use ofmercenaries in preventing genocide. Although they approach the issue cau-tiously, they argue that the use of private military companies should begiven serious consideration and not be summarily dismissed insofar asit provides an alternative where there is no political will for UN military


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intervention. They contend that the potential use of mercenaries in suchcircumstances may be legal, cheaper, faster, more effective, and unbur-dened by the usual obstacles to political will of States arising from thesacrifice of national blood and treasure.

Rebecca Hamilton for her part explores the central issue of how politicalwill can be generated through citizen advocacy. She argues that in orderto be successful, the prevention of genocide cannot originate solely withinestablished power structures but must also be driven by external, popu-lar pressure. She analyzes as a case study the remarkable efforts of theGenocide Intervention Fund in the United States, exploring their inno-vative campaign to pressure the US Congress to take action on Darfurby establishing a 1-800-GENOCIDE telephone hotline and issuing score-cards evaluating each legislators performance vis--vis Darfur. Noting

that lack of caring or empathy cannot be the only reason for inaction,she proposes that anti-genocide citizen advocacy become much moresophisticated, strategic, and pragmatic.

The next contribution is that of Luis Moreno-Ocampo, the Prosecutorof the International Criminal Court. He makes a case for the critical rolethe ICC plays not just in sanctioning but also in preventing genocide. Heconsiders not only the deterrent effect of criminal justice to future crimesbut also explores the peace versus justice debate, contending that theseimperatives are complementary rather than in competition with each other.

He argues that ICC intervention has in fact mitigated atrocities in placeslike Uganda and the Sudan.

Professor Noah Weisbord of Duke University Law School then respondsto Ocampos defense of the ICC, with a macro-level analysis of whetherinternational criminal justice is in fact the false dawn of a fictitious inter-national morality or an unachievable utopian ideal. He concludes that theICC and its supporters have in fact successfully begun to build a new globalcosmopolitan morality, a universal code that was once seen as the privi-leged domain of aristocratic elites, but which has since been democratized

with the proliferation of international norms, institutions and the strength-ening of civil society. He offers the ICC and the cultural shift it has realizedas a successful example of this emerging reality.

Professor Catherine Lu of McGill University also examines the role of theICC in preventing genocide but from a different perspective. She focuses onthe pitfalls of idealizing international criminal justice in an imperfect world.She argues that the ICC is an inherently political institution, one that whileaspiring to political impartiality, nevertheless prioritizes consequentialistclaims that it contributes to peace and reconciliation. Lu thus contends thatas a political instrument, the ICC can cause unintended harms, and thatsometimes the price of peace may indeed be impunity for mass-crimes. Sheconcludes that the ICC cannot disregard a world of defective domestic andinternational political agents and structures and that the ideal of universal

justice should not blind us to pragmatic constraints and realities.


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Relying on his extensive field-work in Rwanda, Jobb Arnolds contribu-tion provides insights from psychology on how local reconciliation effortscan contribute to building a lasting peace in the aftermath of violence.He explores the concept of post-traumatic growth by conducting the first

known empirical research on how Rwandan genocide survivors look to thefuture despite past tragedy. Arnolds findings help better understand recon-ciliation efforts in transitional societies, and provide a welcome infusion ofhope by demonstrating that even Rwandans exposed to the most unimag-inable horrors have been able to re-construct a sense of community anddevelop a positive outlook on the future.

The final contribution by Mary Kimani, a journalist now working for theUnited Nations, provides an insightful examination of the role of media ingenocide. Whereas Mark Thompson had earlier offered a study of the media

as one of the building tools of genocide, Kimani shows how peace mediacan be used to further tolerance and dialogue, and thus ultimately preventmass atrocities. She draws mainly from her extensive experience in the

African context, arguing that media, historically the mouthpiece of power-ful interests in the region, can be positively reshaped to serve the publicinterest, citing several successful examples of this growing trend. Kimanimakes a persuasive plea of increased support for peace media initiativesin Africa, which suffer from an inherent lack of commercial profitabilitydespite their critical role in battling exclusionary ideologies.

As much as a preventive approach opens new possibilities forconfronting genocide, it leaves unanswered a vital question: will re-conceptualization of genocide make an appreciable difference to the plightof victims who have been abandoned time and again? This is a fundamentalquestion because in Bosnia, in Rwanda, in Darfur, the world knew what washappening but decided not to act. It is true that early-warning and preven-tion are more cost-effective than intervention after the fact. This approachthus may be more likely to induce the will to act. Nonetheless, lack ofknowledge, inadequate theoretical frameworks, or flawed methodologies,

hardly explain the repeated failure to protect the victims of mass-murder.So beyond utilitarian justifications, will the promises of genocide pre-vention be realized or will they be relegated to yet another intellectualconstruction that makes no appreciable difference on the ground?

It is evident that where powerful actors link intervention to the pursuit ofvital interests, there is a greater likelihood of action. Those advocating pre-vention of genocide may thus appeal to this calculation of interest to infusea strategic element of pragmatism to the desirability of engagement. It maybe argued that genocidal violence is invariably accompanied by instabilityand the spillover effects of violence. Thus, it would follow that the interna-tional community should act in order to avoid manageable conflicts frombecoming a wider regional or global problem. This after all is the languageof global governance: rational, pragmatic, and mindful of political realities,immune from nave idealism. To the human conscience however, the moral


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imperative of acting against genocide does not require such elaborate jus-tification or cost-benefit analysis. In the face of immense human suffering,we are instinctively moved to help those in distress, to make right thewrongs that shock our elementary sense of justice. This impulse, born of

empathy, arises more from an emotional connection than it does from are-conceptualization of a problem, no matter how brilliant and original theperspective. Reducing mass-murder to a distant abstraction or theoreticalconstruct may itself be part of the reason why knowledge is not translatedinto action. In studying this rich and diverse collection of essays, the readermust not lose sight of the limitations of such discourse in awakening thesense of moral urgency without which we will continue to be spectators toradical evil.

This Preface began by recounting humankinds appalling history of

cruelty and violence. Yet those gathered at the Global Conference onPrevention of Genocide, and the remarkable authors that have contributedto this book, point to a different potential for solidarity and engagementwith the downtrodden. Encounters with survivors of genocide teaches usthat in the midst of utter darkness, those that have witnessed unspeakablehorrors, and suffered irredeemable loss, but who refuse to surrender theirdignity and go on living, searching for answers, seeking justice, these are themost powerful proof of the resilience of the human spirit, of the indomitablehope without which true civilization and progress would be extinguished.

It is befitting then to recall the stirring and fateful words of 13 year-oldAnne Frank, before she and her sister were discovered by the Gestapo attheir home in Amsterdam and murdered in the Bergen-Belsen concentra-tion camp. She wrote in her diary: I still believe, in spite of everything, thatpeople are truly good at heart. In searching for solutions to this scourgethen, we are also searching for transcendence, for faith that a different andbetter tomorrow is within the reach of those that act on their conscience.

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