Preventing Mass Human-Rights Violations and Atrocity Crimes

Front matter

STUDIES IN POLITICS, SECURITY AND SOCIETY 42

Angieszka Bienczyk-Missala

Preventing Mass Human-Rights Violations and Atrocity Crimes

Table of Contents

Preliminary Remarks eideler Conceptualisation of the terms ENNEN Assumptions and research hypotheses ENEE

Research methods and techniques ENEE Part One: States, International Institutions and Instruments ...

I. The United Nations as a Universal Institution for The Prevention of Mass Human-Rights Violations and Atrocity e EE

II. Hi

Table of Contents

Competence of Regional European Institutions in the Prevention of Mass Human-Rights Violations and Atrocity CHINES ee 2.1. The European Union against mass human-rights violations andatrocitý CHE 2.1.1. Legal framework... gt ee 2.2. Prevention in the activities of the Organisation for Security and Cooperation in Europe ENEE

2.2.1. The High Commissioner on National Minorities — the

2.2.2. The Offices for Democratic Institutions and Human Rights rind ate’ yerinede tinni

2.2.3. OSCE Missions — prevention in the field A

2.3. The preventative role of the Council of Europe oes

The Problem of Preventing Mass Human-Rights Violations and Atrocity Crimes in Non-European Institutions E

3.2. The evolution of the Economic Community of West African States in respect of the protection of the population ow.

3.3. The International Conference on the Great Lakes Region on Genocide -PreventiOn enges

3.4. The preventative capacity of other sub-regional groups TO ATI uge Gate SE

3.5. The role of the Organization of American States wee 3.6. The Responsibility to Prevent in South East Asian institutions ....

3.7. Middle Eastern organisations in the prevention of mass

VI. Table of Contents

Prevention of Mass Human-Rights Violations and

4.1. Human rights, prevention and sovereignty of states 0.0...

4.2. States towards preventing mass violations of human rights GEORG

4.3. International cooperation of countries interested in the Prevention ee ee ene ee

The Role of Non-Governmental Organisations in the Prevention of Mass Human-Rights Violations and Atrocity EE

5.1. The potential of non-governmental organisations 0.0...

5.2. Types of non-governmental organisations and their forms of engagement ENEE ENEE

International Instruments for the Prevention of

GL Barly: Warning geeiert ee 6.2. Diplomatic instrument ENEE 6.3. Economic iNStrUMENHS een G4. Legal inste uments: ainina ieai inia

6.5. Military Instrumenter EEN

VII

7.1. Background: Chechen independence aspirations and the first Russian-Chechen wart ENNEN

7.2. Institutions involved and instruments applied en

7.3. Results and evaluation wo.cccccccccsccscssscscsscscsssscssescsssscsssssessssseesess

8 Table of Contents

VIII. Rwanda — Prevention After Genocide 0.0... .ccccceccseeteeteeeeeees 151

8.1. Background: causes and consequences of genocide in 1994 ... 151

8.2. Institutions involved and instruments applied ue 155 8.3. Results and evaluation ENEE 170 IX. Côte d’Ivoire’s Elections of 2010 EE 173 9.1. Background: the fight for power EE 173 9.2. Institutions involved and instruments applied ue 176 9.3. Results and evaluation ENNEN 181

X. The Conflict in Libya and the Intervention of

International Force tee gtt 185 10.1. Background: the collapse of the dictatorship and the

outbreak of the civil War ENEE 185 10.2. Institutions involved and instruments applied ue 187 10.3. Results and evaluation ENEE 193

Bibliography EEN 209 Books: wists e deer 209 Articles and E 215 Documents, reports, statements NEEN 221

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.'

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,

1 Lemkin R. (1944), Axis Rule in Occupied Europe. Laws of Occupation — Analysis of Government - Proposals for Redress, Washington: Carnegie Endowment for International Peace, 79-95.

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.”

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.? 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.*

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.

2 Speech by the UN Secretary-General Kofi Annan at the opening of the 54" session of the Commission on Human Rights, March 18, 1998, SG/SM/6487HR/4355.

3 Report of the UN Secretary-General, Prevention of Armed Conflict, June 7, 2001, A/55/985-S/2001/574.

4 See Biericzyk-Missala A. (2019): ‘Kosovo: the First War for Human Rights’ in: Madej M. (ed.), Western Military Interventions After the Cold War, London-New York: Routledge, 53-73.

Conceptualisation of the terms 11

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.’ The authors there distinguished the categories of “structural prevention” and “operational (direct) prevention’, where the former concerns long-term action vis-a-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.®

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

5 Preventing Deadly Conflict: Final Report, Carnegie Corporation of New York. 6 Preventing Deadly Conflict: Final Report, Carnegie Corporation of New York, XVIII-XX.

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.” 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.® 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

7 See Conclusions of the Maastricht Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, which took place between 11 and 15 March 1992.

8 Crimes do not have to be mass crimes, but article 8 of the Statute of the ICC states that the Tribunal specifically deals with war crimes committed in the execution of a plan or policy, or when these crimes are committed on a large scale.

Conceptualisation of the terms 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.

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. 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. 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 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.

This study adopted the category of mass human-rights violations and atrocity crimes, which refer to international human rights law and criminal law. The goal is to achieve the widest and most comprehensive consideration of the multiannual achievements of the international system of human-rights protection. And, in the field of structural prevention, it is the activities of the international human-rights institutions that play an important role.

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’ 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.

Assumptions and research hypotheses 15

The course of the research summarised here has seen many questions raised. Which international institutions are directly and indirectly involved in prevention, and how are their capacities and roles changing in this area? Which instruments at the disposal of countries and international institutions are used to prevent mass human-rights violations and atrocity crimes? Has the acceptance of Responsibility to Protect contributed quantitatively and qualitatively to the involvement of certain actors, and increased the adequacy of instruments used? How does the internal and international context affect the international community’s involvement and effectiveness?

The purpose of the work detailed here has thus been to achieve a systematisation in regard to actors involved and tools available vis-a-vis the prevention or limitation of mass violations of human rights and atrocity crimes. There has also been detailed and comprehensive analysis and evaluation of the effectiveness of both actors and instruments. Factors contributing to the success or failure of prevention have then been identified, through analysis of their application in the context of security, political, ethnic and economic determinants. A relationship between such determinants and the results of preventative action has also been sought, while the adequacy of international instruments used in situations where atrocity crimes are most likely to occur has been assessed.

The main research hypotheses formulated were that:

1. International institutions increased their capacity to prevent mass violations of human rights and atrocity crimes under the influence of the experiences of mass crimes in the 1990s in Europe and Africa and by developing the concept of responsibility for protection. However, they did not create a coherent system of prevention.

2. It is not possible to consistently and effectively apply instruments to prevent mass violations of human rights and atrocity crimes due to the overly complex and rapidly changing nature of the context - internal and international conditions — in which the threat of mass violations is present.

This is also the basis for the following sub-hypotheses:

1. By virtue of its nature and its achievements in the fields of human rights and security, the UN has at its disposal the widest range of instruments which can be used to prevent mass violations of human rights and atrocity crimes.

2. Since 2005, there has been limited qualitative change in laws, institutions, and practice in recognition of R2P, but this has not been extensive enough in relation to the components of the UN system focusing on the protection of human rights.

3. Prevention of genocide and other atrocity crimes has been a stronger driver of change in intergovernmental organisations outside Europe than in the European institutions.

4. The foreign policies of individual states remain the most important driving mechanisms in international prevention efforts.

5. NGOs play an important role in early warning, but cannot lead in terms of operational prevention.

6. The capacity of international institutions to prevent mass human-rights violations in countries that are Permanent Members of the UN Security Council is extremely limited.

7. The presence of international staff on the ground promotes adequacy and effectiveness of international prevention efforts.

8. There are problems with the unequivocal assessment of armed intervention as an instrument for preventing or stopping mass atrocities.

9. The experience of genocide can be a powerful factor in mobilising the international community to support efforts to stabilise situations and prevent future crimes.

The above hypotheses are verified in the course of ten chapters. Six of these form a first part in which the capacity of international institutions to prevent mass human-rights violations and atrocity crimes is outlined. Considerations here begin with a characterisation of the United Nations, given its universal character, but also because it has been a precursor of reflection and action on conflict prevention, genocide and other crimes. In subsequent chapters, the competences of regional European and non-European organisations, states and non-governmental organisations are considered. There is then and attempt at the systematisation and analysis of the international instruments used to prevent mass human-rights violations, in particular with a breakdown into those relating to early warning, diplomacy, the economy and trade, the law and the military. The second part of the study presents four cases in which international instruments for preventing mass human-rights violations have been used. These are the cases of Chechnya, Rwanda, Côte d'Ivoire and Libya. The choice thereof has been dictated by the contexts specific for each case. The first case of Chechnya is one of an ethnic group seeking independence and engaging a state enjoying the status of Permanent Member of the UN Security Council. The Rwandan case in turn refers to the instruments used in the wake of genocide, and in the presence of a real threat that further mass crimes would be committed. Côte d'Ivoire then exemplifies the action taken by the international community in the face of severe tensions and violence surrounding a change of power in a state and organised

Research methods and techniques 17 elections. Finally, Libya represents a situation in which internal conflicts were ongoing, and numerous institutions and instruments involved, up to and including international military intervention to protect the population.

This choice of cases allows for the analysis of what might be seen as “typical” situations in which mass human-rights violations arise in the context of national or ethnic group self-determination, ethnic divisions, power struggles and attempts to overthrow a dictatorship. To achieve further systematisation, analysis of the cases is based on a fixed analytical model. This begins with the internal and international context, with a view to the sources of threats of mass human-rights violations being defined, along with the state of involvement of international actors. International activities are then presented, in respect of the institutions and instruments deployed to prevent mass violence from breaking out. The final element of the analysis then entails presentation of the results of international engagement, as well as an evaluation thereof. Each time, the specificity of the situation and the changing conditions are taken into account. Such a cohesive approach to the analysed cases allows for comparison and the drawing of conclusions at the end of the work.

A serious limitation to the presentation of research results here lies with our basic inability to prove if preventative measures have been effective. In the case of repeated mass violations of human rights and atrocities, it is easy to say that instruments applied are ineffective at a specific place and time, but in the long term it is very difficult to formulate such conclusions. Still, the search for answers to the question why massive human-rights violations occur in a given situation, but not in others, and what determines the success of national and international prevention efforts, certainly represents one of the most important and interesting tasks facing the modern humanities. And naturally, this task goes far beyond the scope of this work alone, and indeed beyond the field of international relations alone.

Research methods and techniques

The research underpinning this study has drawn on several different research methods. The initial phase saw analysis of institutions and legal instruments, in order to achieve identification of the legal bases for the actions taken by states and international institutions as they seek to prevent mass human-rights violations and atrocity crimes. It was important to analyse both the legal instruments defining the obligation to prevent and the powers of international institutions in this area. It was equally important to identify the scope and nature of those relevant institutions (be these intergovernmental or non-governmental, expert or political), as such factors impact in a concrete way on the strength of their influence. The decision-making method was a complement that proved important in identifying decision centres, processes and implementation decisions. Its usefulness was manifested in particular in situations of the inadequacy of activities of organisations or states in the face of threats of mass human-rights violations and atrocity crimes; or when the implementation of decisions was seen to go beyond a given mandate.

The systems analysis was particularly helpful in respect of selected aspects of the international human-rights protection system and, to a lesser extent, the international security system. It allowed for exploration of the institutional and functional capacities of individual international organisations in the area of prevention to the extent necessary for the goals of the present work to be achieved. It also allowed for some encapsulation of the changes taking place in international organisations and in relations between states under the influence of complex cases of mass violence and unsuccessful international reactions or cases of apparent indifference to mass crimes. The study of the relationship between international organisations in the context of the threat of mass human-rights violations and atrocity crimes proved equally important, most especially where the United Nations and regional organisations were concerned. It was about the possibility of capturing manifestations of cooperation and competition in the face of the need to take action. It was equally important for the role of NGOs and their participation and impact on preventative action to be identified.

Particular elements made subject to systematic analysis were states in the world that have the capacity to engage directly and indirectly in solving problems in international relations, by way of their influence on processes taking place in international organisations. They are a particularly fascinating part of the analysis because of the dilemmas associated with the actions they take, which are influenced by various political, economic and security interests often seen to take precedence even when mass killings are in prospect. The systematic analysis has thus allowed for some grasp of the interrelationships between internal and international conditions, the involvement of institutions and the choice of instruments. It has also served to investigate whether the problem of preventing mass human-rights violations has affected the existing international human-rights system.

The elements of comparative methodology applied in the context of case studies allow conclusions to be drawn concerning institutions involved and international instruments used. Above all, they favoured identification of the relationship between internal and international conditions and the instruments used and their effectiveness. The adopted time interval also allowed for comparison

Research methods and techniques 19 before and after the adoption of Responsibility to Protect, in terms of the competences of international institutions, the identification of common features which could possibly foster cooperation and increased operational effectiveness.

The work leading to the present study has seen written sources analysed, and data collected in the course of visits to places affected by mass violations of human rights and atrocity crimes, as well as to the seats of international institutions. In the first case, literature used included monographs and articles, as well as legal acts, Reports and Resolutions. The latter were collected during archival searches at the United Nations Library in Geneva and the International Law Library at the Peace Palace in The Hague, among other places. Invaluable talks and interviews were held at the Permanent Representation of Poland to the United Nations Office in Geneva, the Office of the High Commissioner for Human Rights in Geneva, the Office of the United Nations Special Rapporteur for the Prevention of Genocide in New York, the Auschwitz Institute for Peace and Reconciliation, and the Budapest Centre for the Prevention of Mass Crimes. The study visit to Rwanda was also an important part of the work, allowing for exploration of the policy of national memory, and for interviews with government officials, NGOs and survivors. None of this would have been possible without the support of the National Science Centre of the Republic of Poland, to which the author extends her heartfelt thanks.