115 american bar association adopted by the house of delegates february 6, 2017
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- The Way Forward
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115 AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES FEBRUARY 6, 2017 RESOLUTION RESOLVED, That the American Bar Association urges governments and relevant organizations to implement the recommendations set forth in the policy brief, Allies Against Atrocities: The Imperative for Transatlantic Cooperation to Prevent and Stop Mass Killings (May 2016). REPORT In August 2009 the ABA House of Delegates adopted policy endorsing the “responsibility to protect” doctrine, which holds that the international community has a responsibility to protect civilians from mass atrocities where their governments are unable or unwilling to do so; as well as comprehensive recommendations set forth in the report, Preventing Genocide: A Blueprint for U.S. Policymakers (December 2008). The report was issued by the Genocide Prevention Task Force, which had been convened by the U.S. Holocaust Memorial Museum and other organizations to offer recommendations to the then-incoming presidential administration.1 Upon the ABA’s endorsement of the report, the ABA Center for Human Rights established an Atrocity Prevention and Response Project to help implement the recommendations. Those efforts have included co-organizing and co-sponsoring, with the Holocaust Museum, an international conference on atrocity prevention, in Paris, France, in 2011; participation in various other conferences and research projects; establishment of a separate International Criminal Court (ICC) Project within the Center, to implement longstanding ABA policy urging accountability for atrocity crimes; and, within the ICC Project, forming a Crimes Against Humanity Working Group to help fortify U.S. law on that topic. After more than five years’ experience analyzing and implementing the Genocide Prevention Task Force recommendations by governments and civil society groups, in May 2016 the recommendations were followed up with the policy brief, Allies Against Atrocities: The Imperative for Transatlantic Cooperation to Prevent and Stop Mass Killings (hereafter Allies Policy Brief), authored by Lee Feinstein, dean of Indiana University’s School of Global and International Studies and former U.S. Ambassador to Poland, and Tod Lindberg, research fellow at Stanford University’s Hoover Institution.2 The Allies Policy Brief identifies lessons learned since the Genocide Prevention Task Force report was issued, and offers further recommendations on issues of core concern in atrocity prevention and response. The Center for Human Rights seeks to update ABA policy accordingly to ensure the Association’s further efforts in this vital field of human rights law and policy reflect current insights, experience, and expertise. The balance of this report draws heavily from the text of the Allies Policy Brief, which provides a concise summation of developments in the field to date and the rationales for the offered recommendations, which are included below. Background A generation after the genocides in Rwanda and Bosnia, many of the world powers that apologized for their lack of an early and effective response to genocide during the 1990s have yet to organize themselves sufficiently to act early and effectively to prevent or stop mass atrocities. As responses to past atrocity crimes show, averting and halting atrocities requires a coordinated and sustained effort by local, regional, and international actors. A multilateral response is necessary, one that the transatlantic region has a critical role to play in shaping and leading. The governments of the transatlantic community already devote significant resources and political capital to the prevention and amelioration of crises and conflicts, as well as to the pursuit of international development agendas. Without better cooperation among themselves and their like-minded cousins, efforts to address mass atrocities will continue to be reactive, slow, and devastating to human life and potential. Each transatlantic country should be involved in these efforts, bringing its unique capacities to the table. The United States has a particularly important role to play in encouraging greater transatlantic cooperation amongst states on this issue. President Obama’s declaration in 2011 that the prevention of genocide and atrocity crimes is “a core national security interest and a core moral responsibility of the United States” was laudable. He broke new ground and put the United States at the forefront of institutionalizing atrocity prevention efforts at the domestic level. His administration established an ambitiously named Atrocities Prevention Board (APB) aimed at coordinating early warning and action throughout the U.S. government. The APB has established patterns of cooperation within the U.S. government over a period of five years, convening on a monthly basis representatives of 11 different government agencies that previously did not prioritize atrocity prevention. This structure has proven bureaucratically resilient and as effective as could be expected in its early years. With its emphasis on upstream prevention rather than crisis response, the APB has proven itself ill-equipped to prevent atrocities in countries, such as Syria, that have already gone over the brink. The magnitude of the crisis in Syria and its ramifications for the security of the region push it outside of the APB’s scope. However, when evaluated as an instrument to focus interagency attention on at-risk countries that have not typically been at the top of the agenda, the APB has created both a focal point consisting of various supportive actors within government and a capacity to push for new prevention efforts. The APB’s successes are difficult to measure, but preventive efforts in Burundi and Kenya, including peace messaging, youth engagement, and preventive diplomacy, stand out as having directed greater resources to these countries at high risk of violence that has had a deterrent impact in the short term, even if their long-term impact remains to be seen. Despite the advances by the U.S. government, transatlantic cooperation is fundamental to preventing atrocities. The United States cannot advance this agenda on its own. Since the genocides in Rwanda and Srebrenica, states have worked together can avert and halt atrocities. The United Kingdom intervened in Sierra Leone to prevent atrocities, the United States aided in halting Charles Taylor’s atrocities in Liberia, and France has led efforts in Mali and Cote d’Ivoire. U.S. partners and allies tend to focus their efforts under a variety of rubrics: atrocity prevention, the responsibility to protect, countering violent extremism, conflict prevention, stabilization, civilian protection, human rights, and human security, among others. The labels given these efforts are less important than their outcomes — bringing much needed attention to the risk of atrocities and spurring action. Some of the responses in countries at risk of atrocities have proven controversial. For example, the United States, the United Kingdom, and France — backed by the endorsement of the Organization of Islamic States and the UN Security Council — acted swiftly to stop the threat by the Qaddafi regime in Libya to eliminate its opponents “like rats.” Yet, that “model” intervention and the initial impulse to respond to a credible threat of mass killing were not met by the equally essential resolve to stay the course and rebuild. The Way Forward There is growing recognition within the transatlantic community that the failure to prevent and halt atrocities is a first-tier security challenge, amply demonstrated by six years of global lassitude and indifference to crimes against humanity and spreading war in Syria. The crisis that began in 2011 with the decision of the Assad regime to open fire on peaceful protesters demanding political reform has resulted in the death of 250,000 people and in the largest displacement crisis since World War II, with millions of civilians fleeing to neighboring Middle Eastern countries and to Europe. The subsequent civil war also has destabilized the region, contributing to the rise of the self-proclaimed Islamic State and its record of perpetrating atrocities, culminating with the recent declaration by U.S. Secretary of State John Kerry that its targeting of religious minorities constitutes genocide. The crisis in Syria began, in short, with atrocities and has consistently demanded more engagement and response by the international community, particularly the transatlantic powers. Meanwhile, international acceptance of the cornerstone concept of atrocity prevention, the responsibility to protect, is at a crossroads. When the current Secretary-General of the United Nations, Ban Ki-moon, entered office, he placed at the center of his agenda the principle that mass atrocities occurring in one country are the concern of all countries. Yet, as the administrations of a new Secretary-General and a new U.S. president become established in 2017, it is unclear whether atrocity prevention will remain a priority. This shift calls into question whether the atrocity prevention agenda will maintain strong political support. Exacerbating such challenges, Russia is seeking to reinterpret the concept as a pretext for intervention in its sovereign next-door neighbor, Ukraine. Russia and China also seem increasingly willing to use their veto power as permanent members of the United Nations Security Council to block effective action to halt atrocities and ensure accountability for perpetrators. Given this increasingly difficult political landscape, it is tempting to see the adoption by the UN General Assembly of the “responsibility to protect” doctrine in 2005 as the high-water mark in international efforts to establish a new principle that conditions a state’s sovereign rights on its capacity and willingness to protect citizens within its own borders against mass atrocities. However, the international community has made important strides since 2005. To continue on this trajectory, the United States and its Atlantic partners must affirm their willingness to act in their own capacity to prevent atrocities and to work together to develop coordinated strategies, policies, and processes to that end. The transatlantic imperative now is to find practical ways to work together, despite differences in perspective, and to put the emphasis more squarely on preventing atrocities before they have occurred than on crisis response once atrocities have begun. These governments must work together to identify countries and populations at risk. They must undertake a full inventory of the resources at their disposal to defuse atrocity risks. And they must be prepared to act in concert at the earliest opportunity. Difficult decisions inevitably lie ahead. Political will is the essential element in any international effort sufficient to prevent mass atrocities. The absence of political will, however, is reinforced by the absence of international capacity. When there is a will, there is a way. But, when the way forward is not apparent, the chance of generating political will in the face of opposition is lower; the absence of capacity feeds the disinclination to act. The following recommendations are therefore offered as a way forward. Recommendations for Enhancing Transatlantic Cooperation
The U.S. and its transatlantic partners should affirm that the prevention of genocide and atrocities is a core national and collective security interest and a core moral responsibility. Governments and international institutions must devise internal processes coordinating atrocity prevention efforts and work with one another to internationalize strategies, policies, and processes. Early preventive action is essential, saving lives at considerably less cost than intervening to halt ongoing atrocities. In assessing risks when atrocities have already broken out, however, the United States and its transatlantic partners must recognize the danger of inaction. Future and ongoing NATO and US-EU summits are an appropriate place to affirm the importance of atrocity prevention for the transatlantic community; some discussion of not just future threats to those alliances but also future opportunities for prevention should be made a standing agenda item at those summits.
In the U.S. context, the Atrocities Prevention Board (APB) is an important step forward. A future administration may wish to reevaluate what goals the APB can realistically achieve and what resources it requires to be effective, but it should preserve the basic infrastructure, which has served to create expertise and patterns of cooperation that are critical to effectiveness within the U.S. government. The APB should regularly meet and work with its transatlantic counterparts. The APB should convene a special meeting to take stock of efforts to date to internationalize atrocity prevention and plan concrete, actionable next steps. U.S.-E.U. summits should include meetings between officials concerned with preventing atrocities.
The United States should launch an international initiative to target perpetrators and enablers of atrocities with crippling economic sanctions. In the United States, a specific executive order authorizing sanctions for crimes against humanity, which would correspond with other such executive orders, for counter-narcotics and counterterrorism activities, would provide the U.S. Treasury Department with an important tool — one employed effectively in recent years to bring Tehran to the nuclear negotiating table. The State Department Office of the Coordinator for Sanctions Policy should address atrocity prevention as a core part of its mandate. The United States government should convene an international conference of its transatlantic partners and their like-minded and capable cousins to coordinate efforts to punish enablers of crimes against humanity and mass killings. 4. DEVELOP AN INTERNATIONAL LEGAL FRAMEWORK ADEQUATE TO THE CHALLENGE OF ATROCITY PREVENTION After the Bosnia war, the mainstream view of European and U.S. law deemed the Kosovo intervention to be legitimate but not legal, due to the absence of a UN Security Council Resolution and a cramped understanding of what constituted self-defense. This remains the mainstream view today, even when exigent circumstances exist and even when it is clear that the United Nations Security Council will not reach agreement to authorize action, either under Article VI or Article VII of the UN Charter. Over the past quarter century, however, a pattern of practice has developed that can provide the basis for action that is both legitimate and credible under international law. The time has come to move beyond a framework that presents the alternatives as doing nothing or acting illegally. The transatlantic community should take the lead in convening experts in international law and legal policy to develop a more effective framework. As a preliminary step, the United States and its transatlantic partners, as well as UN and international officials, should ready international prevention efforts as if the UN Security Council will give its approval to action. This will serve both to build pressure on the Security Council and to ready capacity to take steps outside a Security Council mandate if necessary.3
Effective peacekeeping capacity is central to all efforts to reduce the risk of atrocities in conflict. The protection of civilians is now included as a matter of course in peacekeeping doctrine and training. Reforming peacekeeping missions to equip them to better protect civilians and prevent atrocities has been an important priority for the U.S. government and its transatlantic partners. In 2015, the Obama administration hosted the Leaders’ Summit on UN Peacekeeping — which drew many militarily capable European partners — to address the critical gaps in peacekeeping, including the lack of rapid deployment capacity, and to get commitments from states to increase their police and troop contributions. The United States and its transatlantic partners must build on such recent efforts by continuing to explore effective ways to contribute to peacekeeping operations, whether by increasing direct participation or in funding, capacity building, and training. NATO must also recognize the priority of protection of civilians and take steps toward developing appropriate doctrine and training. NATO should build toward a military training exercise that includes a large-scale component of protection of civilians from mass atrocities. Respectfully submitted, Hon. Bernice B. Donald, Chair ABA Center for Human Rights February 2017
RESOLVED, That the American Bar Association urges governments and relevant organizations to implement the recommendations set forth in the policy brief, Allies Against Atrocities: The Imperative for Transatlantic Cooperation to Prevent and Stop Mass Killings (May 2016). The resolution updates current ABA policy to reflect important developments in this vital field of human rights law and policy.
The Board of the Center for Human Rights approved the submittal of this report with resolution on November 16, 2016.
The Center for Human Rights submitted a similar, more expansive resolution at the 2009 Annual Meeting (110, approved); the current resolution builds on the 2009 resolution.
Numerous policies on international criminal justice, adopted over many decades, are affected favorably by adoption of this resolution. As noted above, the August 2009 resolution is most directly relevant and would be augmented by this resolution.
N/A
There is no known relevant legislation on this issue.
This resolution would be implemented as part of the Center’s ongoing Atrocity Prevention and Accountability Project established to implement the August 2009 resolution.
No direct or indirect costs to the Association will result from adoption of the resolution.
No known interests are implicated by the resolution.
The resolution has been referred to the Sections of International Law, Criminal Justice, Civil Rights and Social Justice, and the Rule of Law Initiative for their support.
Michael Pates, Director, ABA Center for Human Rights, 1050 Connecticut Ave., NW, Fourth Floor, Washington, DC; 202-662-1025; michael.pates@americanbar.org
Hon. Bernice B. Donald, Chair, ABA Center for Human Rights, United States Court of Appeals for the Sixth Circuit, 540 Potter Stewart U.S. Courthouse, 100 E. Fifth Street, Cincinnati, Ohio 45202-3988; (513) 564-7000; Bernice_Donald@ca6.uscourts.gov.
1. Summary of the Resolution RESOLVED, That the American Bar Association urges governments and relevant organizations to implement the recommendations set forth in the policy brief, Allies Against Atrocities: The Imperative for Transatlantic Cooperation to Prevent and Stop Mass Killings (May 2016). The resolution updates current ABA policy to reflect important developments in this vital field of human rights law and policy. 2. Summary of the Issue that the Resolution Addresses The resolution builds on current ABA policy addressing prevention of and responses to mass atrocity crimes – genocide, war crimes, crimes against humanity, and ethnic cleansing. The legal dimensions of atrocity prevention and response are key factors in decisions taken whether – and, if so – how to undertake such efforts. 3. Please Explain How the Proposed Policy Position Will Address the Issue The resolution updates existing ABA policy with expert insights gleaned since that policy’s adoption in August 2009. In particular, the policy brief to be endorsed pursuant to the resolution recommends developing an international legal framework adequate to the challenge of atrocity prevention. 4. Summary of Minority Views or Opposition Internal and/or External to the ABA Which Have Been Identified No internal or external minority views or opposition have been identified thus far. 1 See Report with Recommendation 110, adopted August 2009. 2 The policy brief is not formally related to the Genocide Prevention Task Force report or its members. Mr. Lindberg was, however, an author of that report as well. 3 The UN International Law Commission since 2015 has been drafting articles for a Convention on the Prevention and Punishment of Crimes against Humanity, which would require all States Parties to take measures to prevent such crimes, to adopt national laws on such crimes, to establish jurisdiction over alleged offenders, and to cooperate on extradition and mutual legal assistance. (See http://legal.un.org/ilc/guide/8_8.shtml; see also S. Murphy, Third Report on Crimes Against Humanity, UN doc. A/CN.4/704, Jan. 23, 2017). The United States and other governments should support and engage closely with the work of the ILC on the drafting of such a convention, so that when the draft is sent to the U.N. General Assembly in 2019-20 there is strong political support for transforming the draft into a convention to which States will widely adhere. Directory: content -> dam -> aba -> directories -> policy policy -> Resolution policy -> American bar association adopted by the house of delegates policy -> 109a american bar association adopted by the house of delegates february 10, 2014 policy -> Adopted by the house of delegates policy -> American bar association adopted by the house of delegates policy -> 112g american bar association criminal justice section report to the house of delegates policy -> American bar association standing committee on paralegals report to the house of delegates policy -> 119b american bar association adopted by the house of delegates august 14-15, 2017 policy -> 107d american bar association adopted by the house of delegates february 9, 2015 policy -> American bar association adopted by the house of delegates Download 39.94 Kb. Share with your friends:
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