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СКАЧАТЬ same time, particularly as a result of the experience in Rwanda, the “do no harm”²⁶ model is being embraced, as IHOs become more reflective about the broader implications of their work.²⁷

      From Palliation to Power

      In its most basic sense, humanitarianism is palliation. According to the World Health Organization, “Palliative care is an approach that improves the quality of life of patients and their families facing the problems associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual.”²⁸ In the medical sense, palliative care “intends neither to hasten or postpone death.” It “provides relief from pain and other distressing symptoms” and “offers a support system to help patients live as actively as possible until death.” The “illness,” the symptoms of which humanitarians treat, is not the malnutrition and diseases from which those affected suffer. Rather, it is war and violent conflict itself. Thus, whereas palliative care “affirms life and regards dying as a normal process,” humanitarianism as palliation affirms life but also regards war as a normal process. It takes the world and its illness—war—as it is and helps those affected by the illness—refugees, IDPs, and others—to stay alive, hopefully until the war ends and localized illness is cured, or until the illness—war—ultimately kills them. It treats the symptoms rather than effecting a cure. While many millions of people have been saved by humanitarianism, it must seem for some caught in the midst of conflict that the refugee camp is akin to a hospice, with humanitarians keeping refugees alive and comfortable until the war—either directly through an attack by armed forces or indirectly through malnutrition and war-associated disease—kills them. They thus become what has been described as the “well-fed dead.”²⁹

      This description is in no way meant to devalue the work of humanitarians. Indeed, most people helped by humanitarians live to see the end of the war in which they are caught, and even those in hospices will appreciate the efforts undertaken to ease their pain and make them comfortable as the inevitable happens. Yet taking war as inevitable imposes rather severe limits on the goals of humanitarians. At the same time, some humanitarians do not take the inevitable as such, and attempt to go beyond palliation.

      Humanitarianism as palliation engages with many different interests and perspectives. The ICRC may see palliation as the ultimate expression of humanity—you are keeping people alive for this one day, and hopefully the next, and the one after that, and so on.³⁰ And many other IHOs also see this as their humane goal, while others want to go beyond palliation and find a cure—that is, address the root causes that are leading to the disease of war, which is killing so many people. This creates operational problems. It also brings them into conflict with others who may prefer palliation as state policy. That is, while states—especially rich Western states with the resources to put toward stopping conflict—may want to see a particular conflict stop and prevent people from being killed—they do not necessarily want to invest the resources (troops) to do so. Palliation thus becomes the preferred course of action, and a substitute for more robust action. Thus, to bring the medical analogy to a close, instead of bringing in surgeons (troops) to excise the tumor of war and genocide, states bring in hospice workers (humanitarians) to keep people alive until the war ultimately kills them.

      This recourse to the humanitarian international,³¹ or the Land Cruiser Brigade,³² appears to give IHOs significant power in the midst of conflict. Yet it also brings with it many problems as humanitarians become politicized, wedded to one side in a conflict, and perceived, according to Michael Hardt and Antonio Negri, as the “mendicant orders of Empire,” “some of the most power pacific weapons of the new world order.”³³ The white Toyota Land Cruisers of the IHO become a representation of the international community’s response to conflict—more evocative than the armored tank—taking humanitarians into a realm of high politics, which conflicts with their humane palliation. As Michael Barnett and Thomas G. Weiss argue, “Humanitarianism has become institutionalized, internationalized, and prominent on the global agenda. It is an orienting feature of global social life that is used to justify, legitimate, and galvanize action.”³⁴ As a result of the changing nature of conflict,³⁵ humanitarianism has become embedded within contemporary conflict. Of the three responsibilities that are at the core of this book, humanitarianism (palliation) has the most well-defined set of principles and the longest practice. Although it may have different interpretations and meanings, it is recognized and accepted as a good thing, an expression of our ultimate humanity. It is, in fact, recognized as a duty or responsibility of the international community.³⁶ This makes it a very powerful tool, not only for humanitarians themselves but for other actors who may want to use it for purposes other than what its supporters and practitioners may wish.

       International Criminal Justice: The Responsibility to Prosecute

      The modern international criminal justice regime, too, has its roots in the attempts from the mid-nineteenth century onward to regulate how war is fought. While perhaps only successful at the margins in limiting the death and destruction of war, international humanitarian law laid the groundwork for the criminalization of certain practices of war. The introduction into international law of crimes for which individuals can be punished theoretically changes the calculus of decision makers—both those waging war and those attempting to stop a war. However, its broader positive effects—including deterring individuals from undertaking certain outlawed activities—will likely be a long time coming. But, of the three responsibilities laid out here, it is the most legalized³⁷ and embedded in international law.

      While there were previous instances of individuals being prosecuted for committing atrocities in war and violating the norms of the day,³⁸ we must look to the aftermath of World War II for the true roots of the international criminal justice regime and the evolving “responsibility to prosecute.” In 1943, the Allied powers, in the Moscow Declaration, decreed that Germans who committed war crimes would be tried in the countries where the atrocities occurred, although the worst crimes would be tried by the Allies themselves. Soon after, the Allies created a UN Commission for the Investigation of War Crimes, which created a draft treaty for an international war crimes court. After the war ended, the Allies created the International Military Tribunal at Nuremburg to try those most responsible for atrocities during the war. A second tribunal was set up in Tokyo to try Japanese war criminals. The four crimes prosecuted at Nuremburg were crimes against peace, aggression, war crimes, and crimes against humanity, the latter of which had appeared after the massacres of Armenians during World War I.³⁹ The latter three would appear in the Rome Statute of the International Criminal Court more than forty years later.

      The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948. Although the term genocide was not used until 1944,⁴⁰ and was not accepted by the judges in the Nuremberg trials,⁴¹ some of the elements of the crime of genocide did appear under the general heading of crimes against humanity, and genocide has become the über crime—the worst of all imaginable things one can do in war. As will be seen, this status leads to sometimes strange results as all other crimes are compared to it in international discourse. The crime of genocide is defined, in part, as engaging in certain actions “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” The actions include killing members of the groups and other elements of harm. While similar to crimes against humanity, it includes the element of intent to wipe out a group, and it is this intent which, in some way, makes it worse than the same actions without the mens rea⁴²—the intent to wipe out the group.

      The 1949 Geneva Conventions represented a significant point in the history of the attempt to “humanize” war. In addition to providing a basis for humanitarian action, it also further elaborated what states and individuals could and could not do during war and created a legal basis for individual responsibility for violations of the laws of war—war crimes. However, while the International Law Commission investigated the creation of СКАЧАТЬ