Responding to Mass Atrocities in Africa

Protection First and Justice Later

Raymond Kwun-Sun Lau

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367150877
• eBook ISBN: 9780429619830
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Global Development Studies
• Index: Politics & International Relations

This book explores the relationship between the Responsibility to Protect (R2P) and the International Criminal Court (ICC), challenging the assumption that they are always mutually reinforcing or complementary, and examining instead the many tensions which arise between the immediate imperative of saving lives, and the more long-term prospect of punishing perpetrators and preventing future conflicts through deterrence.

Around the world, audiences in the mid-1990s watched the mass atrocities unfolding in Rwanda and Srebrenica in horror and disbelief. Emerging from these disasters came an international commitment to safeguard and protect vulnerable communities, as laid out in the R2P principle, and an international responsibility to punish perpetrators, with the establishment of the ICC. The book provides context-independent proposals for resolving contradictions between the two principles, suggesting that focusing on timing and sequencing in invoking international R2P and ICC actions could facilitate the easing of tensions. Drawing on examples from Uganda, Kenya, and Darfur, the book applies International Relations concepts and theories in order to deepen our understanding of international responses to mass atrocities. Ultimately the book concludes that a 'Protection First, Justice Later' sequence approach is necessary for managing the tension and facilitating more effective and consistent international responses.

This book makes an important contribution to discussions and debates surrounding international responses to genocide and mass atrocities. It will be of special interest to scholars, students and policymakers in International Relations, Global Governance, African Studies, International Development, Human Rights and International Criminal Law.

1 Introduction

DOI: 10.4324/9780429054938-1

When it comes to the international society’s willingness and ability to deal with genocide and mass atrocities,¹ a review of the history of the 20th century is simply depressing. The commission of genocide and mass atrocities has frequently been a recurring phenomenon: Turkey’s wiping out of 1.5 million Armenians in 1915–1916, the systematic mass extermination of 6 million Jews in Nazi concentration camps prior to and during the Second World War, Indonesia’s extirpation of 500,000 Chinese and alleged communist Indonesians during Sukarno’s anti-communist purge in 1965–1966, Serbian attempts to ethnic cleanse Muslims in Bosnia and Kosovo (8000 in Srebrenica in 1995 and a total of 100,000 in both territories), the massive slaughter of 800,000 Rwandans by Interehamwe militias in just 100 days in 1994 or the killing of 5 million civilians in the Democratic Republic of Congo (DRC) since 1998. According to one estimate, over 160 million people were victims of genocide and mass killings in the 20th century.²

The fact that far more people were slaughtered by their governments³ in the 20th century than the number killed in all the foreign and internal wars of the century is largely attributed to the founders of the United Nations (UN) and their preoccupation with addressing the problem of states waging war against each other, while paying no particular attention to imposing constraints on how states dealt with their own populations.⁴ Indeed, the treatment of citizens by their respective governments has consistently been considered as a domestic matter since state sovereignty and non-intervention in the domestic affairs of another state has been the organizing principle of the modern international society.

The starting point for this book, however, is that against the backdrop of the Yugoslav wars of 1991–1995, the Rwandan genocide in 1994 and intervention in Kosovo in 1999, there is evidence of changing expectations and in particular emerging concerns about how to respond to genocide and mass atrocities in a more effective and consistent manner. Of particular importance is what Jennifer Welsh described as ‘the Rwanda Effect’, as this has provided the catalyst for the development of new ways of thinking and new institutional arrangements.⁵ Arguably the two most significant innovations were the Responsibility to Protect (R2P) principle and the International Criminal Court (ICC).

At its simplest, the R2P principle emphasizes a state’s primary responsibility for the protection of its population from four ‘mass atrocity crimes’:⁶ genocide, war crimes, crimes against humanity and ethnic cleansing. The international society has a responsibility to assist other countries in upholding their protection responsibility, and should states be unwilling or unable to protect their populations the international society should respond and take action to protect them. Underpinning this is a ‘global political commitment’ endorsed by all the UN Member States at the 2005 World Summit to prevent and respond to the four above-mentioned mass atrocity crimes.⁷

Being the world’s first permanent international judicial institution, the ICC is mandated to investigate, prosecute and try individuals for genocide, war crimes, crimes against humanity and aggression. It holds that it is the primary responsibility of each state to prosecute and punish those accused of committing ‘the most serious crimes of concern to the international community as a whole’.⁸ Under the principle of complementarity, the Court can step in to investigate and, where warranted, prosecute and try individuals only when the country concerned does not, cannot or is unwilling genuinely to investigate and prosecute.

On the protection front, R2P is intended to address the needs of the victims by building up ‘a system of protection involving diplomacy, judicial measures, economic measures, peace operations deployed with local consent—albeit sometimes coerced—international assistance to help build responsible sovereigns’.⁹ Conceptually and practically, R2P has provided a new way of (re)conceptualizing humanitarian intervention and ‘a platform for developing better ways to prevent atrocities and save lives’.¹⁰ On the justice front, the birth of the world’s first permanent international judicial body does represent a significant advancement in international criminal justice: the institutionalization of the residual responsibility to prosecute.¹¹ With the ICC operating as an independent judicial entity outside the UN system, the Court and particularly the Office of the Prosecutor (OTP) is capable of deciding when and where to exercise jurisdiction without a need for further Security Council authorization. As such, since the Court came into effect in 2002, the landscape of international criminal justice has undergone dramatic changes over the last two decades: the revival of international judicial intervention¹² for the sake of ending impunity, punishing perpetrators and upholding international justice.

Taken together, both R2P and the ICC are focused on the aversion of mass atrocity crimes, including genocide, crimes against humanity and war crimes. Along with sharing the same commitment to ending mass atrocities, the two are also perceived as sharing a similar historical context, intellectual underpinning and normative inspiration. There has been, hence, a tendency among scholars and policymakers to frame the R2P principle and the ICC as inseparable and mutually reinforcing. Ramesh Thakur, for instance, argued that the duty to prosecute and responsibility to protect are interrelated as simply like ‘twin norms’.¹³ Both the UN and ICC officials, for instance, hold similar views: the former UN Secretary-General Ban Ki-moon treats the ICC as ‘an essential tool for implementing the responsibility to protect’,¹⁴ while the ICC Chief Prosecutor Fatou Bensouda suggested that the Court should become the ‘legal arm of the responsibility to protect’, as this international judicial body has to be seen as ‘a tool in the R2P toolbox’.¹⁵ In this sense, synthesizing the international protection and punishment agenda is merely logical, since there is no choice between the protection of civilians and the prosecution of perpetrators as they are two sides of the same coin.¹⁶

Yet, as shown in Chapter 4, R2P and the ICC also display crucial differences, especially their different motivating logics, emphases and instrumental logics. In terms of their motivating logics, R2P is motivated by the desire to save lives under imminent threat while the ICC is driven by the mandate to prosecute and punish perpetrators after the fact. In terms of their different emphases, R2P lays the emphasis squarely on mitigating the direct impact of violence on affected populations (in cases where states are unwilling or unable to do so). Given that every human being is entitled to their rights to life, saving lives in immediate danger under the umbrella of R2P, in this sense, entails a moral responsibility and ‘a duty of care’.¹⁷ The ICC, by contrast, rests primarily on holding perpetrators accountable on the basis of the principle of individual criminal responsibility. Here, the emphasis on ending impunity and bringing perpetrators to justice under the ICC framework is a legal responsibility of every country. In terms of different instrumental logics, reference is made to the international society’s readiness to save lives and protect vulnerable populations and the ICC’s attempt to deliver ‘in-conflict justice’.¹⁸

Despite the similarities and differences between the two, there has been relatively little attention paid to the precise relationship between R2P and the ICC. The core concern of this book, therefore, is how to make better use of international protection and punishment efforts to address genocide and mass atrocities more consistently and effectively. More specifically, this book seeks to answer the following questions with an in-depth study of the relationship between R2P and the ICC: to what extent are international efforts for protecting vulnerable populations from genocide and mass atrocities (characterized by R2P) and punishing perpetrators (encapsulated by the ICC) complementary? If the relationship between the two is not, as many proponents assume, always complementary or mutually reinforcing, what are the principal causes of tensions between ICC and the R2P?

Against the backdrop of changing expectations regarding the international response to mass atrocity crimes, this book contends that the overriding policy issue and the cornerstone dilemma for international policymakers relates to managing the tension between the immediate imperative of saving lives and protecting victims, and the important prospect of punishing perpetrators and preventing future conflicts through deterrence. Of particular importance is issues of timing and sequencing in invoking R2P and ICC actions: upholding justice and providing protection can be either complementary or in tension depending on the context and that the critical determinant appears to be the sequence in which they are used.

My main argument throughout this book, therefore, is that situating R2P and the ICC in a ‘Protection First, Justice Later’ temporal sequence is critical to manage the tension between R2P’s urgent imperative to save lives and the ICC’s efforts to uphold justice and deter future mass atrocities. To situate my line of argument in more a context-specific way, addressing genocide and mass atrocities in Africa via this ‘Protection First, Justice Later’ approach tends to be more effective and consistent because: 1) the African intellectual roots of R2P¹⁹ enables international policymakers to assume the residual responsibility by providing protection and assistance in the first place. The principle’s strong historical connection with the continent enables R2P to be perceived as promoting responsible sovereignty on the African continent;²⁰ and 2) highlighting the importance of civilian protection (other than just perpetrator punishment) can help mitigate the growing African backlash against the ICC.²¹ Therefore, simply put, international protection and punishment efforts work best together when R2P precedes the ICC. When the two coincide or ...

Table of contents

• Cover
• Endorsements
• Half Title
• Series Page
• Title Page
• Copyright Page
• Abbreviations
• Acknowledgements
• 1. Introduction
• 2. Responsibility to Protect: Protecting vulnerable populations
• 3. Responsibility to punish: International criminal justice and the International Criminal Court
• 4. Protection and punishment in responding to mass atrocities
• 5. Northern Uganda
• 6. Darfur
• 7. Kenya
• 8. Conclusion
• Index