Global Conference on the Prevention of Genocide

On October 11th, the Global Conference on the Prevention of Genocide begins in Montreal. The Echenberg Family Conference on Human Rights is organized by the McGill Centre for Human Rights and Legal Pluralism and the McGill University Faculty of Law.

The conference aims to facilitate a dialogue between policy-makers, NGOs, media, young leaders, and genocide survivors, in order to shift the focus on genocide from intervention to prevention. Notable speakers include Lt.-Gen. (ret.) Roméo Dallaire and Wole Soyinka.

Compiled on the conference website are:

• Selected links on genocide in the 20th century
• Links to UN activities relating to genocide prevention

Cases heard by international tribunals:

• International Criminal Trial for Rwanda
• International Criminal Trial for Former-Yugoslavia
• International Court of Justice

Domestic cases in the US and Canada:

• Presbyterian Church of Sudan v. Talisman Energy, Inc
• 2006 U.S. Dist. LEXIS 86609 (S.D.N.Y., Dec. 1, 2006)
• United States District Court for the Southern District of New York
• Mugesera v. Canada
• Supreme Court of Canada [2005] 2 S.C.R. 91, 2005 SCC 39

I will be blogging from the conference, focusing on the legal aspects of this complex issue.

Sessions over the 3-day conference include:

• Accountability for Genocide: Does Criminal Justice Prevent Future Atrocities?
• Can the ICC help stop the atrocities in Darfur?
• Inducing the Will to Act: Humanitarian Intervention and The Responsibility to Protect Against Genocide
• Making Prevention Feasible: Overcoming the Fear of Quagmire

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Accountability for Genocide: Does Criminal Justice Prevent Future Atrocities?
Chaired by Professor William Schabas (Irish Centre for Human Rights), the panel included Professor Catherine Lu (McGill University), Professor Gary Bass (Princeton University), and Justice Richard Goldstone (Constitutional Court of South Africa, Prosecutor – International Criminal Tribunals for Rwanda and former Yugoslavia).Key questions addressed by the panel:

• What is justice?
• What is the role of the International Criminal Court(ICC)? What is the role of the prosecutor? What type of prosecutor/legal actor is imagined to efficiently work within a system of justice?
• How do politics, the law, and morality intersect?

On justice

Professor Bass contrasted the “normal version” of criminal justice, “one murderer, one prosecution, one jail sentence” to international criminal justice, where a small number of people are prosecuted as a mostly symbolic gesture. A “perfect justice” is not always the solution, which may exceed the costs that the parties are willing to take.

On the role of the Court/role of the Prosecutor

The ICC is seen as a soft option for politicians, according to Bass, sending a message that “we care” or “we are paying attention,” without committing the necessary resources for economic sanctions or military intervention.

Lu described her ideal vision of actors within ICJ: judges and lawyers with a good political instinct, politicians who possess the same instinct and a commitment to justice. Bass concurred with his depiction of a jurist who thinks like a politician but doesn’t appear to be one.

Justice Goldstone relayed an anecdote about his experience as Prosecutor, confronted by an irritated UN Secretary General Boutros Boutros-Ghali, who expected to be consulted before the ICTY indictments. Goldstone emphasized the necessity of an independent Court and office of the Prosecutor, as outlined in Article 42, Section 1 of the Rome Statute. The role of the Prosecutor is to investigate and issue appropriate indictments, once sufficient evidence is available. The Prosecutor, not being privy to political negotiations, cannot be expected to make political decisions nor is it the Prosecutor’s role.

On law, politics and morality

There was consensus on the panel that if the political will is present, the Court can be effective, at least in prosecuting and punishing, if not in deterrence. Goldstone was adamant in stating that the global community must decide whether it wants an efficient ICC.

Tough questions still remained, many presented by Professor Lu throughout the session, such as: When should one prosecute? What happens when “justice” causes harm, or prolongs a war? Can the ICC be seen as a legitimate and independent authority? Should limited financial resources be devoted to an external legal system or to much needed areas of reconstruction in the aftermath of a genocide?

Professor Lu described the law as embedded within politics and morality, explaining that “laws don’t interpret and apply themselves.” Due to the nature of the crimes under its jurisdiction, the ICC finds itself embedded within external political struggles, while grappling with being recognized as a legitimate judicial authority. While the panel concluded that deterrence is a small section of the ICC’s scope of action, the appropriateness of ICC as a uniform institution for international criminal punishment is still called into question.

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A Legal Obligation to Prevent Genocide
The panel on Making Prevention Feasible, chaired by Prof. Stephen Toope, focused on the proposal for a UN Emergency Peace Service, how to affect the inertia which plagues government action, and how to train negotiating parties for effective collaboration.During the discussion, Dr. Jerry Fowler (US Holocaust Memorial Museum) described what he saw as the current normative environment with regards to preventative action and current international law on genocide. Fowler noted his skeptical views on the effect of the International Court of Justice‘s Bosnia v. Serbia ruling, which emphasized the duty to prevent genocide (Article 1 of UN Convention on Genocide).Fowler’s argument is that the duty to prevent is limited by the implied qualification, “with the means available under the current circumstances.” In short, the government will do what it can. Fowler notes that the judgment on what one can or cannot do is a political judgment, not a legal one. Therefore, the determination that certain atrocities are genocide will not influence the outcome of what the government is willing to do. He gave the example of Colin Powell on Darfur; the “legal” determination or use of the term genocide did not change the US government’s actions.

He emphasized that governments will not act out of a legal obligation to international law but out of a political necessity. This gap between law and politics needs to be filled by “constituencies of conscience,” Fowler claims, to create this political necessity and refocus how governments can act towards prevention.

Prof. Schabas provided a counterpoint to Fowler’s argument, indicating that the Bosnia v. Serbia holding did cause a change in thinking about genocide prevention. He explained that in 1994 during the Rwandan genocide the Security Council members interpreted the genocide convention as an obligation to prevent genocide only within their own countries. With the Serbia ruling, the legal argument provides additional momentum to the movement for the prevention of genocide internationally.

Prof. Toope addressed the two arguments and reminded the audience that it is not necessary to think of the evolution of legal obligation separately from the development of constituencies of conscience. This interaction depends on one’s concept of law, and how one sees law as being created. Toope recommended further reading on this topic in Emmanuel Adler‘s work on communities of practice.

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The Role of the ICC Prosecutor
The session on Making Prevention Feasible and the discussion with Luis Moreno Ocampo revealed two different conceptions of the role of International Criminal Court (ICC) prosecution.

Prevention and the Role of Prosecutor

Justice Richard Goldstone described the role of Prosecutor as constrained by the specific limits authorized by the Rome Statute. Goldstone emphasized the Prosecutor’s duties as external to the political process of negotiations to end armed conflict, which are often concurrent to investigation and indictment.

During the discussion between Professor Akhavan of the McGill Centre for Human Rights and Legal Pluralism and ICC Prosecutor Moreno Ocampo, there was a clear shift in imagining the prosecution’s role in current conflicts, such as Darfur. Ocampo described a two-fold function of the Prosecutor’s office:

• The duty to investigate past and present crimes
• To contribute to the prevention of crimes

Moreno Ocampo sees prevention and deterrence at the heart of the Rome Statute, which authorized the ICC (see Preamble). He views the Darfur conflict as a testing model to see how law can be used to prevent atrocities. Enforcing the ICC’s arrest warrant for Ahmad Haroun will prevent future crimes in Darfur, according to Moreno Ocampo.

Constraints to Prosecutor’s office

Like Goldstone, Moreno Ocampo recognizes the constraints of the ICC, a judiciary without an analogous institution to domestic police to enforce its warrants. Ocampo has a holistic view which involves pressure from civil society to influence political will of national governments. The legitimacy and accountability of the ICC can be imagined as developing within this framework of practice, not from statutory law.

Another problem Ocampo notes is that “there will never be enough justice.” The ICC’s work should be seen as one part of a whole, a complement to other forms of justice, such as Truth & Reconciliation Commissions, and humanitarian work. He mentioned the lack of legal criteria on determining who to bring to trial. In the case of Nuremberg, he recounted that the number of people tried at each case, twenty-two, was determined by the number of chairs available in the courtroom.

Deterrence

In contrast to the previous panel, Ocampo sees the ICC as being an effective deterrent, especially in the case of military action. The ICC’s impact on reviewing the rules of engagement in Afghanistan and general military policies to avoid prosecution in the Hague has been significant.

Complementarity

Sudanese human rights lawyer Salih Mahmoud Osman questioned the concept of ICC’s complementary jurisdiction, as stated in the Preamble of the Rome Statute. Professor Akhavan described the relation as follows: If domestic courts are willing and able to prosecute, the ICC has agreed to not exercise its jurisdiction. Osman emphasized the importance of privileging ICC’s jurisdiction. In the case of Sudan, there are no crimes against humanity enumerated in the penal code.

Osman reiterated the necessity to support the ICC and to generate political will for its effective functioning through pressure on national governments. Adding to this equation, Moreno Ocampo further emphasized the need for effective lobbying on the international level.

All proceedings from the Global Conference on the Prevention of Genocide are now online.