Genocide Prevention and International Law

The recently published report Preventing Genocide: A Blueprint for U.S. Policymakers (the Albright-Cohen Report) is a welcome addition to the growing efforts to realize the often invoked promise, "Never again."¹ In fact, it constitutes the first attempt to translate the existing research on genocide prevention into a policy guide for decision makers, and it deserves praise for taking this step. In particular, from a European perspective, one would hope that institutions and actors such as the Imperial War Museum in London, the International Task Force for Holocaust Education, Research and Remembrance, and the Stiftung für Wissenschaft und Politik in Berlin will engage in similar work to add new perspectives and inspire European leaders.

Being the first of its kind, the Albright-Cohen Report invites a number of criticisms. This cannot come as a surprise, and it may, indeed, help to generate further debate and reflection. My focus here will be on the relationship between genocide prevention and international law. From a legal perspective, there are numerous obvious links between the two—of course, one might say, given that the crime of genocide is defined in a legal instrument, the UN Convention on the Prevention and Punishment of the Crime of Genocide (UNCG). Nonetheless, the treatment of international law in the report remains inconsistent and insufficient. Most often, law is reduced to "international political challenges" (75; emphasis added) or is accorded even less importance. This approach corresponds well with the state of art in the field of genocide studies, where much ink is still spilled on criticizing the alleged and real shortcomings of the legal definition instead of scrutinizing newer developments. The Albright-Cohen Report should have done better and explored how recent trends in international law could contribute and shape future policies in the field of genocide prevention.

The Albright-Cohen Report and International Law

On a number of occasions the report does touch on the interplay between genocide prevention and international law. Chapter six is in fact titled "International Action: Strengthening Norms and Institutions," and references are made to legal concepts such as the responsibility to protect (xxi) and to institutions such as the International Criminal Court (101ff).² Some of the recommendations set forth are very agreeable,³ while others seem totally unrealistic;⁴ overall, there is little self-critical assessment of past US policies vis-à-vis international law.⁵ What is more, legal tools appear to be relegated to a secondary category, appended to and dependent on political considerations. An example of this approach occurs in the brief discussion of the potential need to initiate military operations when no UN authorization can be obtained. On the one hand, the report slurs over the fact that the use of force is generally prohibited under international law (97).⁶ On the other hand, it ignores the fact that the United States has no official policy supporting the existence of a right to humanitarian intervention.⁷ In what follows I shall highlight some of the report's shortcomings vis-à-vis international law and point to one particular and major omission: the failure to address the legal duty of the United States to prevent genocide.

(a) The Legal Definition of Genocide as "Definitional Trap" for Genocide Prevention

The Albright-Cohen Report begins by discussing the scope of genocide prevention, calling this "Defining the Challenge." Should prevention focus on genocide alone, or should it also address crimes against humanity and other massive violations of human rights? Does genocide prevention depend on a determination of genocide? The task force behind the report defines the scope of the Blueprint "as the prevention of genocide and mass atrocities, meaning large-scale and deliberate attacks on civilians" (xxi). A number of recent developments, such as the mandate of the UN's Special Adviser on the Prevention of Genocide, the scope of the responsibility to protect, and the newly discovered legal duty to prevent genocide, all point in this same direction. While lawyers were the first to call genocide the "crime of crimes,"⁸ they have since moved beyond the notion of a hierarchy of suffering. Today, there is a growing readiness...