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.