International Responses to Mass Atrocities in Africa. Kurt Mills

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СКАЧАТЬ other mass atrocities are not killed. All of these have humanitarian and human rights characteristics, but to the extent a division can be created between the two, they all have a different balance. Palliation, while part of the broad concern with the other that characterizes human rights, does not have the same connotations with regard to changing society. Rather, it responds to the situation in the most minimal way possible, although those who practice or advocate rights-based humanitarianism alter the balance in favor of advocating for change while also offering the humanitarian response. Prosecution is the enforcement element of the development of international humanitarian law that was created to provide minimal levels of protection for particular classes of people in the midst of conflict. Yet it is also part of the broader human rights project that attempts to remove impunity for those who engage in the worst human rights violations. Protection is the most far reaching. It has a broad agenda that aims to prevent large-scale human rights abuses, stop ongoing abuses, and rebuild societies after the abuses end. Yet the most important element of this new norm, principle, or whatever one calls it, is the stopping or reacting element. This responsibility to react is what used to be called humanitarian intervention. But it is the formal recognition of the intervention—that is using military force⁷⁸—element for the humanitarian purpose of keeping people alive that is new and also the part of R2P that actually protects in the context of mass atrocities. Yet, as we have seen, all three practices make claims about protection. We thus need to further investigate the meaning of protection.

      Humanitarian Protection

      Humanitarian organizations like UNHCR or the ICRC see several protective elements to their work. Providing food, shelter, medical aid, and other resources to refugees and others affected by war and genocide have direct protective benefits for the individuals affected—it can literally save their lives. However, beyond this direct effect, other types of protection can be noted. UNHCR, for example, argues that merely having a presence on the ground in a conflict situation can be a form of protection. Their presence is an indication that the international community is watching, and can thus serve as a deterrent. However, sometimes that is not enough and it becomes clear that all the international community is doing is watching—and hoping that humanitarianism will suffice. UNHCR also talks about legal protection—which is its core mandate. This involves ensuring that refugees’ and asylum seekers’ rights are protected—making sure that states live up to their legal obligations under international refugee law, including the prohibition on nonrefoulement, obligations to examine asylum claims, and requirements for providing access to resources for refugees.⁷⁹

      The ICRC has a similar mandate, and although it frequently talks about relief and protection, David Forsythe argues that “the ICRC’s humanitarian protection in the field encompasses primarily traditional protection and relief protection.”⁸⁰ Traditional protection is essentially identical to UNHCR’s legal protection. Thus, as with UNHCR, the ICRC works to protect individuals by ensuring that states live up to their international human rights responsibilities. Its prison visits seek to accomplish similar goals, Forsythe points out, while “In relief protection there can be an element of supervision and representation, along with the central effort to provide the goods and services necessary for minimal human dignity in conflict situations.”

      Oxfam, an NGO that frequently works in the midst of conflict situations, recognizes the limits of its protection capabilities: “Oxfam … is not a specialist protection organisation…. For us, protection means improving the safety of civilians in our humanitarian programming. In practice, it means trying to reduce the threats of violence, coercion and deliberate deprivation to civilians, and reducing their vulnerability to these threats.”⁸¹ As an NGO, while it wants to contribute to the protection of civilians under its care, it is constrained in what it can actually accomplish. It further constrains itself by significantly restricting its interactions with peacekeeping and other military forces that may sometimes be needed to deliver assistance—and thus protection.⁸²

      Thus, humanitarian action can include both traditional (legal) protection and relief (material) protection. Both are necessary for maintaining human dignity and both are responsibilities of the international community. Yet the international community frequently chooses to emphasize humanitarian protection, which, while immediate, only provides partial protection and does not address longer term protection issues, at the expense of root cause, longer term options. Further, while the terminology of protection may be used, such organizations do not have the mandate or capabilities to actually physically protect people. They are not armed and, if an army or group of rebels decides to enter an IDP camp, there is little they can do to stop them. Indeed, as noted above, such activities might more properly be described as palliation rather than protection in that in the context of genocide or ethnic cleansing they may mitigate suffering but do little to provide robust, and long-term, action to stop the killing. Such activities are frequently undertaken by nonstate entities that do not have the capabilities or mandate to do anything other than deliver food and water and medical care—obviously worthwhile endeavors, but not backed up by the full authority and force of the UN or individual states. And, even when the authority of the UN is present, if it is not backed up by the power of the UN, that authority may be meaningless.

      Prosecution Protection

      Does the increasingly elaborate international criminal justice regime, with its courts in The Hague and practices of universal jurisdiction, protect people? We consider the rule of law to be a cornerstone of a peaceful and just society. We have domestic courts and legal proceedings designed to punish wrongdoers. This legal edifice is also assumed to deter people from committing crimes in the first place. Thus, through deterrence it protects people from harm, and by putting criminals behind bars it keeps criminals from harming anybody else. The deterrent effect of domestic legal systems is difficult to measure.⁸³ Further, the legal system relies on police officers to arrest wrongdoers, as well as be a presence on the street to deter wrongdoing and physically protect people. It is far from perfect, but domestic criminal justice systems do provide protection, if by no means total. The international criminal justice regime works very differently. It was conceived of as a retrospective system that would deal with people after they had committed their atrocities, which is of little comfort to the thousands or millions of civilians who might die in a conflict. Further, compared to the crimes committed and lives lost, extraordinarily few people have been tried before international courts or domestic universal jurisdiction proceedings. And it can be no other way. Indeed, the first Prosecutor of the ICC stated that his aim was to go after maybe a half dozen of those most responsible in a particular conflict.⁸⁴ This will leave hundreds and thousands of people who have committed serious crimes in a conflict to go free. The ICC has no resources to extend beyond that small number of people. Nor does it have the ability to get its hands on any more. It is completely reliant on states and the UN to deliver suspects to its door in The Hague, and unlike domestic contexts where there is a police force whose job is to do exactly that, the Prosecutor does not have his or her own police force to go out and arrest people. They are completely reliant on a very ad hoc process that only functions when states or other actors decide it is in their interest to arrest somebody,⁸⁵ and even if it is in their interest, they may not have the means. The fact that it took sixteen years to arrest Ratko Mladic indicates that justice is far from automatic. The protective effect of deterrence, unsure as it is in domestic contexts, is, at the present time, close to nonexistent, and will only have a chance of having any significant value after a long record of successful prosecutions in The Hague is assembled, with alleged perpetrators coming to trial in much less than sixteen years.

      Although international criminal justice is retrospective in nature, there are now attempts to use it to affect the course of conflicts in which the crimes are being carried out. The involvement of the ICC is sought by parties or observers to the conflict as a conflict management strategy.⁸⁶ Initial experience in places such as Darfur and Libya indicate the extreme limits of the ability to use threats of being sent to The Hague to alter perpetrators’ behavior. And without stopping the killing, it is difficult to make the case for СКАЧАТЬ