Human Rights

Genocide and Mass Atrocities

  • Genocide and Mass Atrocities
    Why Religious Persecution Justifies U.S. Legislation on Crimes Against Humanity
    (This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions now scheduled to resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.) The enactment of U.S. legislation on crimes against humanity would strengthen the prospect of the United States one day seriously considering ratification of the proposed Convention on the Prevention and Punishment of Crimes Against Humanity. In testimony before the U.S. Commission on International Religious Freedom on Sept. 30, I sought to explain the importance of the legislation currently being crafted on Capitol Hill. I was joined at the hearing by Professor Leila Sadat, who focused on the convention’s many attributes. The following narrative is drawn from my testimony. At the Nuremberg Trials following World War II, the Holocaust was first and foremost prosecuted by U.S. prosecutors as a crime against humanity with deeply embedded religious origins. If one surveys the atrocity crimes committed in recent decades and currently (namely genocide, crimes against humanity, and war crimes), religious violence stands out as a core element of many of these prejudicial assaults against multitudes of victims. Recall the persecution of the Muslim Cham community by the Khmer Rouge in Cambodia in the late 1970s, Bosnia in the early 1990s, Sudan for decades, ISIS and its rampage through the Middle East several years ago, including against the Yazidis, and today the Uyghurs in China, the Rohingya in Myanmar, and continuing religious turmoil in Nigeria, Kashmir, Yemen, Armenia-Azerbaijan, Ethiopia, the Holy Land, and Northern Ireland. Not everything that has transpired in these religion-stoked situations constitutes crimes against humanity, but this atrocity crime has left and continues to inflict far more scars on humankind than other international crimes. The World Economic Forum reported in 2019 that religious violence across the globe is rising. That trend continues to this day. So this is reality knocking on our door. Many of the criminal acts in the category of crimes against humanity have been employed in religious conflicts: widespread or systematic commission of murder, extermination, forcible transfer of population, torture, and mass rape or other forms of sexual violence, not to mention persecution that can underpin ethnic cleansing on religious grounds and unspecified “inhumane acts” that are confirmed by courts. Indeed, the London Charter that created the International Military Tribunal for the Nuremberg Trials and the Rome Statute that established the International Criminal Court (ICC) explicitly codified religious persecution as a crime against humanity. Gap in U.S. Criminal Law Regrettably, not only is there no convention on the prevention and punishment of crimes against humanity, there is a gap in U.S. federal criminal law regarding such violations, which do not exist in the U.S. Code, even though federal courts often have invoked crimes against humanity as enforceable customary international law in civil law matters. As recently as Sept. 15, the U.S. District Court in the Eastern District of Pennsylvania granted summary judgment in a civil lawsuit brought in February 2018 by survivor victims against a former Liberian warlord, Moses W. Thomas, for torture under the Torture Victim Protection Act and for both war crimes and crimes against humanity under the Alien Tort Statute. The plaintiffs survived a July 1990 massacre at a Lutheran Church in Monrovia, Liberia, during that country’s civil war. Thomas, accused of supervising the slaughter, returned from the United States to Liberia two years ago. If there had been a crimes against humanity statute in federal criminal law in 2018, Thomas could have been detained awaiting trial. Further, were the United States to codify such criminal penalties, it would be well-placed to participate in the future in the proposed Convention on the Prevention and Punishment of Crimes Against Humanity as having already achieved its domestic requirements. The United States thus could serve as a leader to encourage prosecution of this body of atrocity crimes in national courts globally. One can no longer logically argue that crimes against humanity, committed on such a large scale, should be absent from the federal criminal code, as if they merit the imprint of impunity. Frankly, this is an antiquated omission that could be viewed by others as an ever- shining green light to commit crimes against humanity without fear of U.S. criminal justice. For many years, I and others have pointed to this glaring gap in federal criminal law. Senator Dick Durbin, chairman of the Senate Judiciary Committee, has long labored on legislation to codify and criminalize crimes against humanity, which is the draft bill that merits getting across the finish line for filing in this Congress. The American Bar Association Working Group on Crimes Against Humanity, which I chair and of which Professor Sadat and Professor Beth Van Schaack (a Just Security executive editor) are members, has been working to advance a crimes against humanity bill since 2015. The draft legislation also would correct a couple of other gaps in federal law to ensure criminal liability under U.S. law of non-American perpetrators of war crimes waged against anyone anywhere in the world if such alien perpetrators are present in the United States, and to bar from admission to the United States any alien who engaged in the commission of war crimes or crimes against humanity. The United States should not be a safe haven for perpetrators of crimes against humanity during religious conflicts overseas or, for that matter, to advance any cause anywhere. A government cannot speak of religious freedom abroad – much less of seeking to defend it — if the same government is providing shelter to the very individuals who deny such religious freedom by committing crimes against humanity against those whose religious persuasion is different from their own. The interests of victims of crimes against humanity remain paramount. Provided jurisdictional requirements are met, the U.S. legal system should be structured to enable the Department of Justice to meet victims’ yearning for accountability. Impunity for American Citizens? Nor would it be plausible to permit an American citizen to commit crimes against humanity at home or abroad without being subject to criminal punishment under U.S. law. We have not accepted any such impunity for the commission of genocide, torture, or war crimes (including recruiting, enlisting, or conscripting children in an armed force or group or using children to participate actively in hostilities), and there is no rational argument why we should exclude crimes against humanity from the list of crimes that Americans must not commit or tolerate. We should be setting the example, particularly in the face of authoritarian regimes across the globe. Further, just as federal criminal statutes pertaining to genocide, war crimes, and torture do not carve out the U.S. military from their reach, neither should the crimes against humanity bill. While crimes against humanity (and their tough contextual requirements) are not explicitly designated as such in the “punitive articles” of the Uniform Code of Military Justice, there are a number of violations in such punitive articles that can be found (or interpreted to fall) within the corpus of crimes against humanity. A federal criminal law would ensure — as with genocide, war crimes, and torture — that there is no loophole in federal law permitting the commission of crimes against humanity. If there were to be an intentional command decision to commit crimes against humanity and to do so as part of a known widespread or systematic attack against a civilian population — a scenario I would find shockingly un-American — then there must be an unambiguous means of accountability under U.S. law. Even if one remains concerned about the exposure of American nationals to compliance with such international law, I would emphasize this point: Although the United States is not a State Party to the Rome Statute, the nation would be foolish not to have a crimes against humanity law to enforce on its own will. The principle of complementarity under the Rome Statute applies to both States Parties and non-party States to the treaty. Where a country has the capacity in its criminal law to investigate and prosecute crimes against humanity — as crimes against humanity and not lesser crimes — then that country can avoid ICC scrutiny for any such crimes allegedly committed by its nationals, provided the government proceeds in good faith to investigate and, if merited, prosecute any such individuals. U.S. Needlessly Exposed to Scrutiny by ICC This principle serves the interests of a non-party State, such as the United States, because the ICC may seek to investigate U.S. nationals if there are allegations that those individuals committed crimes against humanity on the territory of a State Party to the Rome Statute. The Court must respect the United States when it responds in good faith that it will investigate alleged crimes against humanity, just as it can currently do with respect to alleged genocide and war crimes if suspected by the Court, provided there is federal law enabling its law enforcement authorities to investigate and prosecute crimes against humanity. If there is no such law, then the ICC can ignore American protestations and claim that the United States lacks the legal capacity to undertake the task, which the Court then may proceed to undertake on its own. There are 104 countries, including all but one of the United States’ 27 NATO allies, that have codified crimes against humanity in their criminal codes. A large majority of these 104 countries are States Parties to the Rome Statute. National laws empower such countries to exercise their full complementarity rights under the Rome Statute, essentially requiring the Court to “back off.”  The United States oddly remains, because of this gap in federal law, needlessly exposed to scrutiny by the ICC. All that being said, the legislation is primarily aimed at the more prominent objective of ensuring that alien perpetrators of crimes against humanity find no sanctuary in the United States. Finally, David Miliband, president and chief executive officer of the International Rescue Committee, recently wrote and was interviewed about a new “age of impunity.”  The absence of  a crimes against humanity law in the U.S. federal criminal code certainly exemplifies that description of our times. It is almost a clarion call to those who commit such atrocities that the United States remains available for refuge, or even a quick visit to Disney World, without fear of prosecution. One might describe the United States as “Impunity World” for such world-class criminals. A crimes against humanity bill should not be a heavy lift on Capitol Hill. It should be viewed as a bipartisan, non-partisan imperative for the sake of humankind. The modest part that the United States can play in this global challenge is to criminalize commission of crimes against humanity — in the same spirit as our lawmakers already have done for individual acts of genocide, torture, and war crimes — and thus provide a path to justice for the victims in particular.
  • China
    What is Happening to the Uyghurs in Xinjiang?
    Play
    Panelists discuss China’s increasing repression of Uyghurs in Xinjiang, the response from the United States and other countries, and the implications for U.S.-China relations and China's foreign policy.
  • Genocide and Mass Atrocities
    What Does Mladic’s Conviction Mean for Genocide Law?
    An international court has upheld the guilt of former Bosnian Serb military leader Ratko Mladic, but its narrower view of what constitutes genocide could make future cases harder to prosecute.
  • Genocide and Mass Atrocities
    Srebrenica Massacre Anniversary, North American Pipelines Halted, and More
    Podcast
    The world marks the twenty-fifth anniversary of the Srebrenica massacre; the Atlantic Coast, Dakota Access, and Keystone XL pipelines suffer setbacks; and COVID-19 triggers historic levels of food insecurity.
  • Rwanda
    Financier of Rwandan Genocide Will Finally Face Justice in Court
    On May 17, twenty-six years after the Rwandan genocide, Félicien Kabuga was finally arrested outside of Paris. A wanted man for decades, he was the most notorious architect of the 1994 atrocities still at large. Kabuga bankrolled the massacre, financing the Interahamwe militias and importing to Rwanda an astounding number of the machetes that were then used to slaughter men, women, and children. He co-founded and co-owned the hate-radio station Radio Télévision Libre des Mille Collines, which repeatedly and expressly urged listeners to participate in mass murder. Kabuga then devoted the same resources and connections he had used to fuel the genocide to protecting himself and evading justice. Although he was indicted in 1997 by the International Criminal Tribunal for Rwanda, he found safe harbor in various African and European countries over the years, purchasing enough complicity to ensure he would not be held accountable for his actions. Of course, no arrest or prosecution can erase the trauma of the genocide. But the apprehension of Kabuga does bring a measure of relief to some survivors and to those who worked for years to bring him to justice. It should also strike some fear in the hearts of those responsible for atrocities; clearly justice does not simply give up over time. But the Kabuga saga also raises important questions. Who helped him live in freedom for so many years? Who facilitated his movements across borders and his financial transactions? Who tipped him off when the law got too close? Will those complicit parties be held accountable? Kabuga’s story also sheds some light on the pathologies of the Rwandan government today. Critics of the government—and its problematic human rights record—are by no means all sympathetic to the perpetrators of the genocide. Some of those critics were victims of the genocide themselves, while others came to care passionately about Rwanda because they were so horrified by what unfolded in the spring of 1994. When these critics are smeared as enemies of peace, genocide deniers, or worse, it is a grotesque distortion of reality. Yet for years some small and twisted circles of humanity continued to protect the likes of Félicien Kabuga, which helped feed the conflation of honest dissent with the darkest of motives. It’s easier, after all, to imagine that all opponents are part of a vast and evil conspiracy when there is evidence that a conspiracy somewhere—even one with the reduced aims of simply evading arrest—is still afoot. Leaving no stone unturned in pursuit of those who perpetrated the genocide, and those who protected them, remains essential for Rwanda’s future.
  • International Criminal Court
    The ICC’s Probe Into Atrocities in Afghanistan: What to Know
    The ICC appeals chamber’s decision to move ahead on an investigation of grave abuses by combatants in Afghanistan, including U.S. forces, marks an unprecedented move that is likely to arouse intensive pushback from Washington.
  • Southeast Asia
    The United Nations’ Failures in Myanmar: Lessons Learned?
    Last month, the United Nations released a scathing report about the organization’s own actions in Myanmar over the past ten years. The report, written by an independent investigator, but commissioned by UN Secretary-General Antonio Guterres, lambasted the UN for a “systemic failure” by UN agencies to find any common strategy toward the Myanmar government. This strategic failure, it noted, continued even as abuses escalated in the past five years against the Rohingya, and ultimately resulted in such atrocities that the UN’s own fact finding mission has called for Myanmar’s top military leaders to be investigated on charges of genocide and crimes against humanity. The fact the UN was willing to investigate and criticize its own actions might offer some hope for change. For more on the UN’s approach to Myanmar, and whether it might shift, see my new World Politics Review article.
  • Genocide and Mass Atrocities
    By Any Other Name: Thoughts on U.S. Genocide Determinations
    The history of the Genocide Convention stretches back more than seventy years, yet much work remains to be done to prevent and respond to atrocities. 
  • Conflict Prevention
    DRC, Afghanistan, and Egypt at Highest Risk for Mass Killing
    The Democratic Republic of Congo, Afghanistan, and Egypt top the list of countries most likely to experience a new mass killing in 2018 or 2019, according to a new forecast. 
  • Southeast Asia
    Extensive Report Suggests Myanmar Military Thoroughly Planned Crimes Against Humanity in Rakhine State
    Last week, the research and advocacy group Fortify Rights, which has amassed considerable expertise on the situation in Rakhine State and the abuses perpetrated by the Myanmar armed forces, released probably its most comprehensive report yet. The report [PDF], based on interviews with more than two hundred survivors of the killings in Rakhine State and some two years of research, strongly suggests that the Myanmar military carefully laid the plans for massive crimes against Rohingya in Rakhine State in late 2017. In fact, some of the evidence collected in the report makes the situation in Myanmar seem reminiscent of the type of planning that occurred in Rwanda, prior to the genocide against Tutsis there in 1994. The Myanmar military has denied any and all allegations that it planned atrocities in Rakhine State. As the Guardian notes, “A military inquiry into the conduct of soldiers released its findings in November 2017, exonerating the army.” As the Fortify Rights report shows, however, the killings of Rohingya in late 2017 were not just an outpouring of violence or some kind of inter-ethnic bloodletting that happened in the heat of Rakhine State political tensions. Its evidence shows that, well before an attack by a shadowy Rohingya insurgent group on police posts in western Myanmar in August 2017 which the Myanmar government claims supposedly triggered the violence, the Myanmar military had apparently launched a concerted effort to prepare for the killings of Rohingya that came after August. Fortify Rights reveals that, nearly a year before, the military had begun stripping Rohingya areas of possible defenses against violence, including confiscating makeshift weapons and removing Rohingya’s fences. The report also shows that the army trained Rakhine Buddhist vigilante groups, and armed them as well, and that in 2016 and 2017 the military moved new detachments of troops into northern Rakhine State, which would be the epicenter of the violence. All this , it shows, was in preparation for 2017, and these preparations allowed Rakhine Buddhists, and security forces, to go on a rampage in late 2017 against Rohingya, with the Rohingya fully unable to defend themselves. Perhaps more than any other piece of evidence yet unveiled about the situation in Rakhine State, the report demonstrates the need for international actors to take action against senior leaders of the Myanmar military responsible for the atrocities. There is no hope that the most senior army leaders will face any reckoning within Myanmar, given the army’s continuing dominance of many facets of Myanmar politics, and Aung San Suu Kyi’s weakness, as well as the weaknesses of the civilian government. The Myanmar government has not even allowed the top UN human rights official focused on Myanmar into the country to investigate the situation in Rakhine State. But the international community should take stronger action against the top levels of the Myanmar military—even if doing so, as some analysts predict, would alienate the majority of Myanmar citizens (at least Buddhist Burmans), who have rallied around the armed forces in the past two years. Top Myanmar leaders could, for instance, be referred to the International Criminal Court, or the United Nations General Assembly (UNGA) could create a framework for investigating alleged crimes in Myanmar; the Security Council will not do so, since any proposal would be blocked by China and Russia, so a UNGA framework would be a possibility. Without some kind of accountability for the Myanmar armed forces’ top leadership, the prospect of the army committing similar abuses in the future is high. And future crimes, in Rakhine, or in other ethnic minority areas, could not only bring more suffering but also further set back Myanmar’s peace process, and further undermine the country’s already-shaky political stability.
  • Rohingya
    The Rohingya Crisis and the Meaning of Genocide
    Despite evidence of systematic violence against the Rohingya, countries remain reluctant to classify the humanitarian crisis in Myanmar’s Rakhine State as genocide.
  • Sub-Saharan Africa
    Germany's 1904 Genocide in Namibia
    In what is often called the twentieth century’s first genocide, the German colonial authorities, from 1904 to 1906, set out systematically to exterminate two ethnic groups, the Herero and the Nama, following an uprising in what was then German South West Africa and what is now Namibia. The Namibian government is currently in talks with the German government to demand that Berlin officially acknowledge that the genocide took place, issue an apology, and pay reparations. While Germany has already acknowledged the genocide occurred, it rejects any legal responsibility. International law did not address genocide at the time, argue the Germans. According to the Wall Street Journal, a German diplomat said, “The German government uses this term (of genocide) in a historical-political sense, not in a legal sense.” Germany also opposes reparations, which legally “implies liability.”  Apologies and reparations for atrocities in the colonial past are complicated. The post-World War II German government has apologized and paid reparations to Jewish survivors of the Holocaust—but not to their descendants. French president Francois Hollande has acknowledged the suffering caused by the Algerian war, but did not formally apologize. Nor did UK Prime Minister Tony Blair fully apologize for British participation in the slave trade. Instead, he expressed “deep sorrow.” The Belgian government apologized for its complicity in the death of President Patrice Lumumba of Congo. In 2015, Japan reached a settlement with South Korea in which the Prime Minister formally apologized for the Japanese army’s use of Korean “comfort women” during World War II. Japan agreed to pay $9.5 million to the women who have survived. However, in the case of Namibia, after a century, there are no survivors, only descendants, so German authorities are unsure about what they might pay and to whom. It is difficult to know how to acknowledge past atrocities, especially those that happened long ago. Yet the wounds continue, right up to the present time, and not just in Africa. The potato famine in Ireland and the highland clearances in Scotland still resonate today.