Legal Frameworks for the Prevention of Genocide and Mass

AtrocitiesRaphael Lemkin Seminar

AIPR, November 2015

Ashad SENTONGO (Ph.D)

Director for Africa Programs Auschwitz Institute for Peace and Reconciliation

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OBJECTIVES:

i.To examine the implementation of existing legal frameworks towards prevention of genocide.

ii.Identify relevant approaches to manage the tensions and challenges of prevention through legal frameworks

iii.Share lessons and generate recommendations to expand and improve the application of legal frameworks towards increasing the responsibility and participation in prevention of genocide and mass atrocities.

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Defining the crimes (Rome Statute of the ICC 1998):

a. Genocide - Article 6 – Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as…

b. Crimes Against Humanity - Article 7 - committed during peace or war times as part of a systematic and widespread against civilian populations, including murder, extermination, enslavement, forcible transfer of population, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, apartheid...etc.

a. War Crimes – Article 8 – when committed as part of a plan or policy or as part of a large-scale crimes against persons or property in breach of The Geneva Conventions (1949), laws and customs applicable in non-international or international armed conflict, etc.

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CONTENTS

I. Overview of the Legal Framework(s)

II. Legal and prevention approaches to genocide and mass atrocities.

I. Legal Challenges towards Prevention

II. Envisioning an effective legal framework

III. Lessons Learned towards implementation

IV. Moving Forward4

Overview of the Legal Framework(s) in relation to prevention of genocide

i. International

ii. Regional

iii. Sub Regional

iv. National

Internationali. United Nations Convention on the Prevention and Punishment of the Crime of

Genocide 1948.

ii. International Covenant on Civil and Political Rights (1966) – Article 6 (1-3)

iii. The United Nations 2005 World Summit Outcome - the R-to-P populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

iv. Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity (2001)

v. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1970, Article 2)

vi. Rome Statue of the International Criminal Court, 122 States Parties

E.t.c

Regionali. EUROPEAN

- European Convention on Human Rights (2010)- Charter of Fundamental Rights of the European Union (2000)

ii. ASEAN- ASEAN Human Rights Declaration (2012)

iii. INTER AMERICAN - American Declaration of the Rights and Duties of Man (1948)- American Convention on Human Rights (1978)- Statute of the Inter – American Court on Human Rights (1979)E.t.c

African – Regional

i. Constitutive Act of the African Union (2000, Lome, Togo)

ii. Peace and Security Council (PSC) Protocol (2002)

iii. African Charter of Human and Peoples’ Rights (Banjul Charter) (1981)

iv. African Union Non-Aggressive and Common Defense Pact (2005)

v. Statue of the International Criminal Tribunal for Rwanda (1994)

vi. AU Transitional Justice Policy (Draft 2014)

African – Sub Regional i. IGAD

- Protocol on the Establishment of a Conflict Early Warning and Response Mechanism for IGAD Member States (CEWARN) (2002)

ii. ICGLR (2005)- Pact on Security, Stability and Development with 10 protocols e.g. - Protocol for the Prevention and the Punishment of the Crime of Genocide,

War Crimes and Crimes against Humanity and all forms of Discrimination- Protocol on Non-aggression and Mutual Defense in the Great Lakes Region- Protocol on Sexual and Gender-based violence (SGBV)

iii. EAC (1999)- Protocol on Peace and Security

How do existing legal frameworks (international, regional,

subregional, etc) function to respond or prevent context

specific and uniquely organized crimes?

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Role

Provides operating language & describes responsibility for stated crimes

Provide a framework for cooperation with the UN, states, regional, national and civil society.

Prevent a culture of impunity by delivering:

i. Justice - Investigations, Arrests, Extraditions, Prosecutions and Punishment

ii. Deterrence – immediate and long-term.

Provide legitimacy for actions taken to:

i. Respond to identified risks that can escalate into genocideii. Protect the vulnerable, marginalized, persecuted communities.iii.Rebuild communities and states affected by genocide.

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When we Prevent

We undertake:

1.Early Warning and Early Response to threats

2.Structural and Direct interventionsE.g. particular forms of killings that are:

•Systematic•Unidirectional•Sustained•Intentional•Extensive

3. Building states committed to prevention and communities that are resilient to genocide

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Prevention Agendai. Intra and inter state conflicts:-a.State-led discrimination and exclusionb.Ethnocized political ideologyc.Sustained struggle to redress disparities d.Leadership instability e.Economic deprivation, disparities and collapse, etc.

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Prevention Agendai. Intra and inter state conflicts:-a.State-led discrimination and exclusionb.Ethnocized political ideologyc.Sustained struggle to redress disparities d.Leadership instability e.Economic deprivation, disparities and collapse, etc.

ii. Threatening genocide/mass atrocity crimes, indicated by (Stanton, etc) :- a.Classificationb.Dehumanization c.Organization d.Polarization, etc.

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Prevention Agendai. Intra and inter state conflicts:-a.State-led discrimination and exclusionb.Ethnocized political ideologyc.Sustained struggle to redress disparities d.Leadership instability e.Economic deprivation, disparities and collapse, etc.

ii. Threatening genocide/mass atrocity crimes, indicated by (Stanton, etc) :- a.Classificationb.Dehumanization c.Organization d.Polarization, etc.

iii. Scope of prevention – (Sheri P. Rosenberg)a.Conflict prevention b.Genocide preventionc.Atrocity preventiond.Civilian protectione.Humanitarian Assistance f.Transitional Justice (non-recurrence)g.Responsibility to Protect (a right and duty to prevent), etc.

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Prevention Vs Legal Approaches

Challenges to Legal Framework(s) towards Prevention

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i. The context in the production of genocide and mass atrocities (Rwanda)- Historical - Social- Political - Economic

Challenges to Legal Frameworks towards Prevention

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i. The context in the production of genocide and mass atrocities (Rwanda)- Historical - Social- Political - Economic

ii. Incoherence between legal and alternative tools for prevention (Lybia, Southern Sudan, CAR)

- Diplomacy- Political - Military - Social- economic- Technological

Challenges Cont’d

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i. The context in the production of genocide and mass atrocities (Rwanda)- Historical - Social- Political - Economic

ii. Incoherence between legal and alternative tools for prevention (Lybia, Southern Sudan, CAR)

- Diplomacy- Political - Military - Social- economic

iii. Multiplication of initiatives on Justice and human rights Vs expanding the space for accountability and creating the space for culture in complex judicial processes (Rwanda)

Challenges Cont’d

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iv. Competing mandates, overlapping obligations and responsibilities within international, regional and national legal frameworks (South Sudan)

v. Weak capacity of states – E.g. The African Court of Justice and Human Rights – A merger between the African Court of Justice and The African Court on Human and Peoples’ Rights

By Feb 2012 – 30 signed but 5 ratified and deposited i.e. Congo, Mali, Libya, Burkina Faso and Benin.

Huge implications on human capacity, financial resources, infrastructure and logistics of this regional framework on member states.

vi. Genocide and mass atrocities occur in varying forms and degrees where cases are usually recognized only after the fact (Syria, Turkey)

Challenges Cont’d

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vii. Lack of expressed political will to apply or partake in implementation of legal provisions towards prevention.

viii. Narrow space at United Nations – particularly the Security Council, for preventive engagements with affected states.

ix. Lack of local capacities and leadership to articulate the purpose, process and anticipated outcomes from application of legal frameworks to affected communities.

vii. Persistent high levels poverty, discrimination, and other disparities.

viii. Lack of partnerships / disconnect between international, national and grassroots efforts to prevention.

Challenges Cont’d

Envisioning effective legal framework as tools for the prevention of genocide and mass atrocities?

Envisioning legal frameworks as tools for prevention?

? Stable Legal frameworks (reduce flexibility to improve certainty)

? Sustainable Political will (local and international) to apply and enforce.

? Inclusive legislative structures to mainstream prevention agendas

? Prevention-specific capacity building for legal practitioners

? Domestication of international and regional legal frameworks

? Create space for communities during implementation

? Clarity on concepts and their application e.g. intention, inclusiveness,

responsibility, etc.

? Constant assessment mechanisms (pro-active Vs reactive)

E.t.c..

Lessons Learned towards implementation

i. Start small

ii. Do not re-event

iii. Describe and project a vision for prevention

iv. Demonstrate value addition to peace and stability

v. Redirect the routine

vi. Don’t take ownership but make credit for others

vii. Effective partnerships

Moving Forward

i. Multi-level advocacy - To gain sufficient buy-in from stakeholders to invest time, resources, and political capital in the implementation of legal frameworks as prevention tools.

Moving Forward

i. Multi-level advocacy - To gain sufficient buy-in from stakeholders to invest time, resources, and political capital in the implementation of legal frameworks as prevention tools.

ii. Strengthening the capacity of national structures – Localize implementation of legal frameworks by developing local capacities to implement justice and accountability programs as tools of prevention.

Moving Forward

i. Multi-level advocacy - To gain sufficient buy-in from stakeholders to invest time, resources, and political capital in the implementation of legal frameworks as prevention tools.

ii. Strengthening the capacity of national structures – Localize implementation of legal frameworks by developing local capacities to implement justice and accountability programs as tools of prevention.

iii. Creating awareness – In governments and grassroots communities in respect to all aspects of existing legal frameworks as alternatives and opportunities that threatened communities can utilize to prevent.

Moving Forward

i. Multi-level advocacy - To gain sufficient buy-in from stakeholders to invest time, resources, and political capital in the implementation of legal frameworks as prevention tools.

ii. Strengthening the capacity of national structures – Localize implementation of legal frameworks by developing local capacities to implement justice and accountability programs as tools of prevention.

iii. Creating awareness – In governments and grassroots communities in respect to all aspects of existing legal frameworks as alternatives and opportunities that threatened communities can utilize to prevent.

iv. Institutional linkages – Local and international networks to constantly share information and best practices at policy and project levels concerning formulation and implementation of legal approaches to prevention.