Blog by Carolina Montenegro, Communications & Advocacy specialist, LLM candidate in Refugee Law at Vrije Universiteit Amsterdam

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“A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach… international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings.”

Appeal Chamber in the Tadić case at the International Criminal Tribunal for the former Yugoslavia

Last year the United Nations Convention on Genocide turned 75 years old, while the world kept stumbling on its own failure to prevent “the crime of all crimes”. From Gaza to Myanmar and Sudan, alarm bells are ringing regarding systematic killing with the intention of destruction of national, ethnic, racial or religious groups. The ones sounding the alarm while the atrocities are unfolding, however, have often risked their lives with little or no protection. They are civilians close to the ground where violence has quickly escalated, namely: victims, members of civil society organizations, journalists, whistleblowers, human rights defenders and humanitarians.

Staggering numbers reveal the size of this protection gap. In less than five months, over 30,000 people have been killed in Gaza, including over 12,500 children and 152 UN aid workers. At least 94 journalists have been killed in Palestine and three in Lebanon after the recent escalation of violence by Israel. In the wake of the military coup in Myanmar in 2021, 6,337 civilians were reported as killed including up to 40 aid workers and four journalists over the following 20 months. In Sudan, nine months of renewed conflict over the past year are estimated to have killed over 6,000 people, including 19 aid workers killed in 17 attacks and one journalist.

The Genocide Convention foresees that States are responsible to punish and prevent the crime of genocide, but little protection and recognition is afforded to civilians in their crucial role of informing on, denouncing, and trying to prevent genocide. Routes to punishment of the crime have slowly evolved, thanks to civilians’ advocacy towards States, development of universal jurisdiction and recent avenues pioneered by States including South Africa before the International Court of Justice. Efforts to prevent genocide, nevertheless, remain unsuccessful.

This article argues that the root of the problem lies in the limited power and protection granted by International Law so far to civilians, despite the United Nations’ increased support to civil society and the formal recognition of “CSOs or NGOs as non-profit, voluntary citizens’ groups organized on a local, national or international level” under the ECOSOC (UN Economic and Social Council). The main argument here is that International Refugee Law’s (IRL) civilian focus sets a precedent for the prevention of genocide, while International Criminal Law (ICL)’s latest developments have followed the same rationale indicating a potential to expand it even further in favor of preventing genocide.

A reflection about the actors best placed and the lawmaking needed for improving genocide prevention raises timely questions. Could the process of decolonizing the Genocide Convention involve a lawmaking rationale that establishes stronger prevention mechanisms led by civil society? Could the creation of categories of “protectors” allow for greater protection and prevention from genocide? Could the origins and latest developments of International Refugee Law (IRL) and International Criminal Law (ICL) contribute to closing this prevention gap?

Civil society in the forefront of preventing genocide

The first and second questions above are closely intertwined. Recent calls for decolonizing International Law and more specifically the Genocide Convention so far have been focused on expanding its protected categories to include “social and political groups”, contemplating also cultural genocide in the frame of colonialism and the plight of indigenous groups in different parts of the world. While relevant, this rationale is focused on expanding the protected categories in light of strengthening punishment, but it does not contemplate prevention.

If we seek to strengthen protection, we may also consider expanding categories of protectors beyond the traditional role of the State as a sole guardian of rights. IRL has set those grounds by rooting protection in the fundamental human rights of people who are no longer protected by their own country and allowing for civilians to hold persecutors and States to a greater level of accountability.

In this sense, the unique role of civil society in preventing violations during armed conflict has been consolidated in a groundbreaking research series led by the think tank ODI (Overseas Development Institute) that has informed the framing of UN’s latest policy on access for protection. Assuming that the case would be the same in preventing genocide, putting civil society in the center of future law and policy making could contribute to greater protection and prevention of genocide.

So far, the prohibition of the incitement of genocide has been institutionalized in many countries. These attempts to prevent genocide address solely the negative role that actors doing politics, disseminating propaganda and holding arms have played before in contexts like Rwanda, Srebrenica, Cambodia and even the Holocaust. Their rise to power, however, has not been looked in depth by the international community in terms of creating checks and balances to prevent genocide. As before, today in Sudan, Palestine and Myanmar it is a systemic tearing of those territories’ social fabric—composed of a patchwork of multiple racial, political, social and religious identities—that has made divides into abysses. Looking into the roots of the problem, therefore, suggests that it is exactly this miscellany of societies’ complex dynamics that has a unique ownership and a legitimate role to play in avoiding genocide. And International Law is the living space where to draw this fine line –building upon IRL and ICL’s precedents highlighted hereafter.

Novelties of International Refugee Law and International Criminal Law paving the way

One could argue that both bodies of law, IRL and ICL, have grown from human rights frameworks with broader protective and accountability lenses that the Convention on Genocide lacks, fruit of its own time and superpowers’ interests as revealed in its travaux préparatoires.

In IRL, for the first time in International Law a specific category of protected persons was drawn, and refugees were centered as the main subjects of rights and concerns. The 1951 Refugee Convention also established a clear guardian body responsible for its implementation and safeguarding (the UN High Commissioner for Refugees, UNHCR), a move that was adopted to some extent as a norm in later Human Rights conventions, for example, the Convention on the Rights of the Child established a monitoring Committee composed of individuals elected by States Parties and serving in their personal capacities. In the past decades, UNHCR’s role in interpreting and applying the Refugee Convention has proved decisive in guiding courts regarding the determination of refugee status (i.e. the Halaf case at the Court of Justice of the European Union).

Furthermore, in regards to protection, the Refugee Convention and its 1967 Protocol became the normative reference for the later development of national and regional laws on matters of asylum and the standards of rights and assistance for refugees. As an example, at European Union level, this influence was manifest in the 2011 Qualification Directive setting a list of rights afforded to refugees: maintaining family unity, residence permit, travel documents, access to employment, access to education, social welfare, healthcare, legal assistance to unaccompanied refugee minors, access to accommodation, freedom of movement and access to integration programmes. Adding to those rights is the protection from refoulement, stated in Article 33(1) of the Refugee Convention, widely recognized by regional and national legislations and safeguarded as a norm of customary international law.

ICL, on the other hand, has been born in response to the Achilles heel of International Humanitarian Law—its lack of enforcement—to provide for the codification of war crimes and their prosecution, with the ambitious aim to foster justice and non-recurrence of atrocities. Several developments in this field of law have put individuals and communities at the heart, as leading legal expert Cherif Bassiouni observed “[International Law] progress has been achieved as States’ interests and the values that their societies embrace have converged, demanding greater conformity by States to certain human aspirations (…) Among developments in which State sovereignty has given way to collective interests and values are those that occurred in the field of human rights and International Criminal Law (ICL)”.

Among those developments were the establishment of international tribunals, under the Rome Statute, and transitional justice processes. Civil society, especially represented by the legal persona of victims, had rights recognized in the International Criminal Court’s Rule of Procedure and Evidence 85 (a), and expanded novel participation in the Court’s proceedings, as well as in transitional justice processes as in Colombia and Tunisia.

Another notable recent development of ICL is the proposed Convention on Crimes against Humanity, which delves deeply into the prevention of mass atrocities, proposing that States 1) criminalize incitement to discrimination, hostility or violence in their national law, 2) call upon the competent UN organs for prevention and punishment of crimes, 3) call upon regional organizations to take action for the same reasons, 4) develop educational and informational programs about the prohibition of such crimes, 5) ensure that orders or instructions prescribing, authorizing, or encouraging crimes against humanity are prohibited, and 6) guarantee that a person who refuses to obey such an order will not be punished, and that a person who reports on the matter to their superiors or to appropriate authorities or bodies vested with powers of review or remedy are not punished for such conduct.

Moving forward on the prevention of genocide

If both IRL and ICL novelties offer new avenues for law-making centered on civilians, the prevention of genocide per se has gained limited traction amongst policymakers and lawmakers. Many States have transposed the Genocide Convention to national law, and some, like the UK, have tried to legislate on “genocide amendments” to trade laws forbidding commercial relations with countries suspected of allowing genocide. Civil society initiatives, instead, have multiplied worldwide to monitor and denounce acts of genocide, educate and train on prevention and shape international policy making on the issue, especially after Rwanda, Srebrenica and Darfur. Mostly projects with limited appeal to national constituencies, they have been able to influence decision-makers to a limited extent, but not to move the needle on the de-escalation of violence or preventive diplomacy. “It is in the realm of domestic politics that the battle to stop genocide is lost”, noted Samantha Power in her book “Problem from Hell: America and the Age of Genocide”, which depicts the herculean efforts of Rafael Lemkin (a Polish Jew and international lawyer who lost his family in the Holocaust) to invent the word “genocide” and gather support from the international community and the United Nations on drafting the Genocide Convention.

The UN structural response to preventing genocide so far has been the appointment in 2004 of an Office of the Special Adviser on the Prevention of Genocide (UNOSAPG) tasked to monitor, act as a mechanism of early warning for the Secretary General and the UN Security Council, make recommendations and strengthen the UN’s capacity to analyse and manage information relating to genocide.

Learning from IRL and ICL to strengthen further the prevention of genocide and the role of civil society in it would empower civilians and promote new multi-stakeholder avenues for States’ accountability, contribute to greater human rights enforcement in national contexts, address colonial historical injustices, and prevent displacement and the escalation of violence. New mechanisms could materialize in different ways, for example, the creation of a UN-backed civil society mechanism under the UNOSAPG aligned with a consultative process of the decolonization of the Genocide Convention. At the national level, other possibilities are the creation of laws on preventing genocide where civil society is recognized by the State as a “co-protector” of rights, or where national law could establish new policy in the form of a plan of action to be co-led with civil society. Such bottom-up law-making rationale has been done before in Brazil, for example, regarding legislation on domestic violence (Lei Maria da Penha) and a migration law (Lei de Migração).

The rights to life, asylum, freedom of assembly and freedom of expression, for example, could be in the forefront of such types of initiatives —given their clear civilian nature and ownership— also allowing for agreements on new frameworks within national courts and legislation, as in relation to the establishment of the rights of nature and a right to peace, being debated since the early 2000s.

If several formats of legal responses can be envisaged for improving the protection from and prevention of genocide, one thing is clear: the way forward is to look back. IRL and ICL’s common birthplace— of high aspirations of expanding protection and accountability centered on civilians— is the space to look into for the conception of much needed new avenues in International Law.

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The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.