Preventing Genocide and Mass Killings: The Challenge for the United Nations

The prevention of genocide and mass killing is arguably the greatest moral imperative resting on the United Nations (UN). The Genocide Convention was one of the first human rights instruments to be adopted by the UN, along with the Universal Declaration on Human Rights. However, in the immediate post-Second World War climate, it was assumed that, at least in peacetime, what states did to their own peoples within their own frontiers was largely their own business. There has been considerable progress since then. The Outcome Document adopted at the UN summit in September 2005 underlines the responsibility of the international community to protect threatened populations, a responsibility to be met through peaceful means but also, if these prove inadequate, by taking collective action through the UN Security Council. Further, it reaffirms the principle that protecting minority rights contributes to states’ stability and cultural diversity. In July 2004, the Secretary-General appointed Juan Mendez to be the first Special Adviser to the Secretary General on the Prevention of Genocide (SAG). Supported by a small but highly professional staff, the SAPG has already engaged actively on Darfur, among other situations. The mechanism may seem modest, and it is too early to give a judgment on its effectiveness. In April 2005, the Commission on Human Rights established an Independent Expert on Minority Issues, Gay McDougall. While it is also premature to judge the effectiveness of this post, it is likely that it will complement the SAPG’s role by focusing on violations of the rights of minorities which have not yet reached the stage of potential genocides. The International Criminal Court (ICC) is another ground-breaking initiative. As a mechanism for prosecuting individuals accused of serious human rights violations, one of the key hopes of those who worked to establish it was that it would contribute to deterring would be violators. International criminal law is often predicated on a preventive or deterrent function. One trial chamber of the International Criminal Tribunal for the former Yugoslavia has explained that in establishing the institution, the Security Council: ‘intended to send the message to all persons that any violations of international humanitarian law – and particularly the practice of “ethnic cleansing” – would not be tolerated and must stop’. With its modest resources and limited jurisdictional reach, the ICC cannot fill the entire impunity gap. Ultimately, faith and intuition rather than any hard evidence support the claim that international criminal justice has a deterrent role in the prevention of genocide and mass killing. More importantly, perhaps, the ICC enables the prosecution of a wider range of violations than the Genocide Convention, which excluded crimes based on forms of discriminatory criteria other than nationality, race, ethnicity and religion, such as political groups, and was limited to the physical destruction of the group. The drafters of the Genocide Convention quite intentionally excluded a category of punishable act that would apply to our contemporary concept of ‘ethnic cleansing’.