Good Governance Paper No. 13: Atrocities Prevention and Response

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

Introduction

While promoting a robust system of atrocities prevention and response has not historically been considered a hallmark of good governance, an enlightened notion of sovereignty as responsibility has taken hold in international relations in some circles. The 2005 World Summit Outcome Document articulated global obligations in this regard, which states have begun to internalize. It is now widely recognized that mass atrocities threaten international peace and security in a number of ways, including by destabilizing entire regions; generating uncontrolled migration, internal displacement, and refugee flows; emboldening perpetrators and creating openings for violent extremism to flourish; disrupting economic relations; and contributing to state fragility. As such, states should be encouraged to make a sovereign commitment to protecting those at risk.

The United States was once in the lead here. President Barack Obama was the first U.S. President to link the moral obligation to “save strangers” with the national interests inherent in doing so when he announced, “preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.” During his tenure, the atrocities prevention portfolio was significantly elevated within the U.S. foreign policy ecosystem, from the perspective of bureaucratic restructuring as well as a realignment of foreign policy priorities and the opening of a new situs of multilateral engagement. Although the Obama Administration made solid progress along a number of fronts and was able to respond vigorously at certain crucial moments, the concrete results remained mixed. Several key initiatives stalled, such as creating new sanctions authorities and getting legislation passed to fill gaps in the federal penal code. So, Obama left office having launched, but not finished, this work.

It is axiomatic that President Donald Trump has pursued an America First, transactional foreign policy. For the first years of his administration, the atrocities prevention and response portfolio was left largely to wither on the vine while the United States dramatically retreated from long-held human rights commitments and prioritized protecting religious freedom to the exclusion of other vectors of violence. In addition to pulling out of the U.N. Human Rights Council (HRC), the Trump administration almost shuttered the Office of Global Criminal Justice (J/GCJ) in the State Department and folded the Federal Bureau of Investigation’s war crimes office into the civil rights unit. There have been, however, some bright spots during this administration in the form of important new atrocities prevention and response legislation that President Trump signed into law, such as the Elie Wiesel Genocide and Atrocities Prevention Act; the filing of a new indictment under the U.S. torture statute against Michael Correa, an alleged torturer from Gambia living in Denver; and a potent new human rights sanctions authority on which President Obama had tried, but failed, to gain consensus. This latter tool has been deployed, but haphazardly.

All this is to say that there is work to be done during the tenure of the next U.S. president, whoever it may be, to re-prioritize these efforts. The endeavor must be accompanied by more deliberate upstream prevention work when it comes to promoting the rule of law, international development, social resilience to shocks, and peacebuilding. Furthermore, atrocities prevention and response cannot be pursued in a vacuum. The atrocities prevention agenda should be better integrated with adjacent imperatives, such as counterterrorism/preventing violent extremism, addressing state fragility, engaging in conflict prevention, protecting civilians in our own operations, and providing humanitarian assistance where needed.

The ideas that follow about what a robust atrocities prevention foreign policy could look like are articulated with the clear-eyed recognition that the collective attention of governments the world over has turned inward in the face of multiple and overlapping crises: a global pandemic, concomitant economic decline, worsening economic inequality, and a renewed (and long-overdue) focus on racial injustice. Resources are already strained, making it hard to justify investments in preventative work without the action-forcing pressure of an emergent crisis (or unassailable empirical proof of efficacy). Nonetheless, the need for global leadership in atrocities prevention has not receded, to which events in Myanmar, South Sudan, Nagorno-Karabakh, China, Yemen, Syria, and elsewhere regrettably attest. If anything, the shocks of a global pandemic, exclusionary populism, and climate change will ensure that this need remains acute. And, as polls consistently show, the U.S. public believes that genocide is preventable and supports the United States playing a role in protecting the most vulnerable around the world and promoting accountability. And so, this work remains a critical component of good global governance.

Components of a Robust Atrocities Prevention Agenda

The next administration should implement the following measures to protect civilians, prevent atrocities, and promote accountability globally.

A Centralized Inter-Agency Process

Key to this effort will be a revitalized interagency entity (however denominated) that is embedded in the mainstream NSC processes and creates a framework for atrocities prevention work, including long-range planning and emergency responses. Such a body must not be just another interagency policy committee (IPC) but rather enjoy some real power to drive policy, convene high-level attention, and urge Deputies and Principals to act. Ensuring an engaged whole-of-government approach and creating a pervasive culture of prevention rather than reaction, will enable the new entity to build awareness and consensus across the government around at-risk situations, marshal resources and expertise, and coordinate responses across regional and functional offices, which do not always work smoothly with each other. The system must commit to upstream prevention but also be poised and ready to act when the situation begins to erode. The body should be empowered to utilize all available tools—including:

  • deploying rapid-reaction teams;
  • imposing targeted sanctions;
  • recommending a role for regional or U.N. peacekeepers;
  • addressing supply chains and the provision of dual-use technology through trade and other authorities;
  • funding and otherwise supporting documentation and accountability mechanisms;
  • addressing dangerous speech on multiple platforms through peace-building initiatives, potential counter-speech, and engagement with the private sector;
  • investing in transitional justice mechanisms, reconciliation and peacemaking efforts, social cohesion, and inter-faith dialogues;
  • launching disarmament, demobilization and reintegration (DDR) programs for armed actors; and
  • supplying humanitarian assistance to and through trusted civil society actors—all in partnership with our allies and the United Nations.

In order to enhance its work, and ensure accountability, this entity should not eschew public engagement like other IPCs. Outreach to and lines of communication with non-governmental organizations (NGOs) in particular could offer alternative sources of information, advice, and implementing partners for addressing at-risk situations.

Intelligence and Information Gathering. The United States must continue to refine its ability to scan the horizon to detect risk factors and warning signs, particularly using data analytics and machine learning, as called for by the State/USAID Atrocity Prevention Framework. The role of the intelligence community is crucial here, but actionable information can be gathered from embassies (including through alert channels), civil society actors, and outside experts as well, such as the USHMM’s Early Warning Project. Information gathering should continue with a focus on at-risk countries to ensure adequate coverage and expertise within the inter-agency, identify areas where there may be outbreaks of violence to inform a long-term agenda, and track evolving situations to inform policy responses—even in countries where the United States does not have traditional strategic interests. The Director of National Intelligence should also be tasked with gathering information about responsible individuals and structures, as a function of promoting U.S. national security and accountability, and including these data within the DNI’s annual worldwide threat assessment to members of Congress. The administration and intelligence community should work to develop trusted information-sharing protocols with other countries and multilateral organizations, including courts, engaged in atrocities prevention and response exercises.

In addition to this collection prioritization, there is continuing work to be done declassifying historical documents—including those originating in the State Department, the Pentagon, and the CIA—related to “dirty war” conflicts around the world to support domestic accountability exercises. In this regard, the next administration should expedite its response to requests for mandatory document review under Executive Order 13526 and to Freedom of Information Act (FOIA) requests, particularly from victim or survivor groups.

Multi-disciplinary expert teams should also be deployed into the field to conduct empirical research and hear directly from affected communities and civil society actors, as has been done with respect to genocide in Darfur, violence in the “Two Areas” of Sudan, and genocide against the Rohingya. Furthermore, atrocities prevention personnel should compile modern jurisprudence and scholarship, conduct outreach to academics studying the societies in question, and engage with dedicated multilateral entities, such as U.N. commissions of inquiry, fact-finding missions, and special envoys as well as international, hybrid, and domestic courts and their legal personnel.

Strategic Messaging.  The next administration might consider establishing a more formalized system for making legal determinations about the nature of atrocities underway to guide strategic messaging, public diplomacy, and other policy interventions. In making such legal determinations, expertise can be gleaned in house from the relevant embassy and regional offices, the Department of Justice’s Human Rights & Special Prosecutions Unit (HRSP), J/GCJ, the Legal Adviser’s office, and the USHMM. However, the U.S. government and its partners should not get caught in a semantic trap; when civilians are being directly targeted, the world should act and it is of no moment that the precise elements of genocide cannot be fully established.

The Atrocities Prevention Toolkit.  There is more work to be done in building and refining a comprehensive toolkit of atrocities prevention and response instruments that can be deployed quickly in bespoke ways as situations demand. This has always involved populating the chasm between “doing nothing or unilaterally sending in the Marines.” This work can be centralized within the “J” Under-Secretariat for Civilian Security, Democracy, and Human Rights (J U/S), which can coordinate with relevant officers at USAID, U.S. missions, outside experts, and its own constitutive elements.

The National Security Council (NSC) and J U/S should commission rigorous “after action” analyses of prior atrocities prevention and response efforts to derive lessons learned and re-imagine benchmarks of success. This should involve outreach to civil society and academia to collect the best thinking about what has worked in the past, where the United States has fallen short, what opportunities exist to improve, and what tools have been under-utilized. Having an understanding of what tools exist, and when they have worked or failed in the past, will help avoid ad hoc responses to new crises.

A Surge Capacity.  Under the Obama administration, there were efforts to develop the ability to rapidly deploy multidisciplinary expertise to the field to help address at-risk situations, particularly in countries with a small embassy team that may lack in-house atrocities prevention and response expertise (e.g., in Burundi and the Central African Republic). These efforts should be revived. Getting this right requires dedicated funding; the removal of the bureaucratic barriers that prevented the State Department (primarily through the Bureau of Conflict Stabilization Operations (CSO)) and USAID from fully serving this function; overcoming resistance from embassies and posts wanting to avoid interference from D.C. or avoid admitting that the situation is deteriorating; and being willing to let go of post-Benghazi reticence while still protecting U.S. personnel. Forging closer partnerships with personnel in the field before a crisis strikes, and particularly the relevant U.S. ambassador who can build a local diplomatic coalition or contact group, will be crucial to getting any response right.

Sanctions & Economic Levers.  Sanctions have historically been utilized to constrain individuals involved in such threats to national security as terrorism and narcotics trafficking (see longitudinal data of designations here) in an effort to bring about behavioral change. An effort to produce a generalized atrocities prevention Executive Order under President Obama floundered in the face of resistance from the Treasury Department, which was concerned about its capacity to create designations and about setting expectations it could not meet. In the end, Congress enacted legislation in the form of the 2016 Global Magnitsky Human Rights Accountability Act, authorizing sanctions against individuals who engaged in gross human rights violations against human rights defenders and whistleblowers as well as acts of “significant corruption.” President Trump issued E.O. 13818 to further implement the new Act. Human Rights First now coordinates a consortium of civil society actors that feed bio-identifiers and other information into the Office of Foreign Assets Control (OFAC) for the purpose of making meaningful designations. Treasury should follow the lead of other Executive agencies and consider creating a dedicated and specialized human rights office to help manage these designations.

The United States should continue to look for ways to utilize additional financial levers (including anti-corruption, money-laundering authorities, and withhold release orders (WRO)) to apply diplomatic and economic pressure on those who would foment, enable, commit, or benefit from the commission of atrocities. The next administration should collaborate with other states and inter-governmental and civil society organizations (such as the Financial Action Task Force and The Sentry) to refine and strengthen these financial tools and coordinate sanctions with justice institutions that might be investigating the same individuals. A number of other states have already enacted, or are considering enacting, a version of the Magnitsky Act, which will strengthen U.S. action.

Likewise, the Executive Branch should include atrocities prevention components within development and security sector assistance, particularly in fragile states. New research by Riva Kantowitz and Kyra Fox (and others) demonstrates the central role that civilians and civil society actors can play in atrocities prevention. Existing pockets of resources, such as the Complex Crises Fund (CCF), while critical, are simply insufficient and too inflexible to be able to cover every need that might arise in a rapidly evolving situation. Comprehensive thinking is needed about how to fund this work so that it does not amount to an unfunded mandate.

Congress

The next administration must work with Congress to ensure regular briefings on atrocity situations and the Executive Branch’s efforts at atrocity prevention. The State Department can facilitate hearings with representatives of tribunals and other accountability mechanisms around the world, with an eye toward crafting a robust whole-of-government response. Because this work enjoys bipartisan support, atrocities prevention and response initiatives offer an opportunity to smooth over what can be bruising budgetary battles. There are many examples of recent, deeply bipartisan legislation that address the commission of atrocities through additional sanctions and support for documentation, investigation, and accountability efforts by trusted implementing partners and justice institutions. For example, with the Elie Wiesel Genocide and Atrocities Prevention Act, Congress has started to play a key role in atrocities prevention. The statute acknowledges that atrocity crimes threaten national and international security and commits to enhancing U.S. capacities to prevent, mitigate and respond to such crises (see Zach Kaufman’s groundbreaking work on “Legislating Atrocities Prevention”).

Although the Obama administration conceptualized some new legal capabilities to exclude perpetrators from the United States, many items on the DOJ HRSP’s wish list remained unfulfilled. Congress should work to fill these gaps in U.S. legal authorities, including by drafting a crimes against humanity statute, extending the superior responsibility provision within the Military Commission Act to other Title 18 international crimes, amending the war crimes statute so that the United States is more fully in compliance with the Geneva Conventions and able to prosecute more war crimes cases, and extending statutes of limitation that have impeded the filing of charges for historical atrocities. Given the U.S. Supreme Court’s truncation of the Alien Tort Statute, Congress should expand the causes of action available under the Torture Victim Protection Act to include international crimes penalized within Title 18. In addition, the DOJ’s HRSP should work with Congress to eliminate barriers to bringing more cases against perpetrators and their enablers under the suite of international law statutes made available to it.

Multilateral Efforts.  The United States should seek to rejoin the U.N. Human Rights Council, which has become the progenitor of a number of key documentation and accountability initiatives, including by launching fact-finding missions (e.g., for Venezuela), commissions of experts (e.g., for Syria), expert teams (e.g., for Yemen), and the Independent Investigative Mechanism for Myanmar. It should also recommit to Arms Trade Treaty, which prohibits state parties from authorizing the transfer of conventional arms when they know they will be used in the commission of genocide, crimes against humanity, or war crimes. The United States must also contribute to kindred multilateral initiatives, such as the Office on Genocide Prevention and the Responsibility to Protect (R2P) with its two Special Advisers to the U.N. Secretary-General. In addition, other worthwhile venues for collective action are regional, such as the International Conference on the Great Lakes Region, which made genocide prevention one of its primary pillars and initiated a productive South-South dialogue.

Ways to contribute to efforts outside the United Nations include participation by U.S. entities in the intergovernmental Global Network of Responsibility-to-Protect Focal Points, launched in 2010 in collaboration with the Global Centre for the Responsibility to Protect (of which the United States a member); the NGO International Coalition for the Responsibility to Protect; the Auschwitz Institute for the Prevention of Genocide and Mass Atrocities; and the Australia-funded Asia-Pacific Centre for the Responsibility to Protect. Likewise, the United States can capacitate the preventive and accountability work of civil society actors and survivors groups.

The United States should actively look for ways to support international institutions dedicated to justice and accountability, including ad hoc tribunals and residual mechanisms; hybrid courts; international fact-finding and investigative initiatives (such as the International, Impartial, and Independent Mechanism for Syria (IIIM)); the International Court of Justice, which has become a new situs for determining state responsibility for atrocities (see our coverage here of a groundbreaking suit by The Gambia against Myanmar under the Genocide Convention); and regional/sub-regional bodies. Such assistance can include:

  • information/evidence sharing and offering testimony,
  • declassifying intelligence when it will assist with prevention or accountability,
  • fugitive tracking and capture (as with Bosco Ntaganda, and Dominik Ongwen, who were transferred to the Hague),
  • neutralizing violent extremist groups committing atrocities (as with the Lord’s Resistance Army, the Islamic State, and Boko Haram),
  • the payment of rewards for information leading to the capture or conviction of potential perpetrators,
  • diplomatic engagement in the Security Council and elsewhere, and
  • providing financial pledges, personnel secondments, and nominations for key posts.

In addition, State, DOJ, and DHS must develop more options for assisting with witness protection measures and providing technical assistance in connection with foreign and international prosecutions (e.g., through the DOJ’s International Criminal Investigative Training Assistance Program (ICITAP)). The United States can participate in the Eurojust Genocide Network; provide mutual legal assistance to domestic investigative and prosecutorial efforts through existing treaty arrangements and on an ad hoc basis; contribute to domestic capacity building and positive complementarity through inter-governmental networks, such as Justice Rapid Response, and—if called upon—help states transitioning from repression to implement a genuine transitional justice process.

Crucial to this component of the atrocities prevention and response agenda will be the normalization of relations with the ICC. With the appointment of John Bolton as National Security Advisor, U.S. policy toward the International Criminal Court (ICC) took a nasty turn, even though the United States has supported accountability in the majority of the situations on the Court’s docket. With Bolton’s ouster, Secretary of State Mike Pompeo took over attacking the ICC, which culminated in the issuance of Executive Order 13928, authorizing the imposition of sanctions on ICC personnel, and the designation of two senior African officials, including the Chief Prosecutor herself, as Specially Designated Nationals and Blocked Persons subject to sanction (see our prior coverage here).

EO 13928 and the ICC sanctions must be revoked immediately. The United States should look for ways to promote the work of the Court where it is consistent with U.S. law and policy while defending against investigations of U.S. personnel within the Rome Statute framework and the rule of law. The State Department, though the Office of Global Criminal Justice, should create a streamlined process to use the Dodd Amendment to the American Servicemembers Protection Act (ASPA) to assist the ICC with investigations that advance U.S. accountability goals.

The United States can leverage is role as a permanent member of the Security Council to continue to enhance the effectiveness and performance of peacekeeping operations. This must include finding ways to strengthen regional peacekeeping forces and relaxing U.S. opposition to funding them out of U.N. assessed dues when they are doing the work of the entire international community (even though this will augment the United States’ share of the costs).

Dedicated Staffing. The NSC must retain a dedicated directorate staffed with senior personnel with atrocities prevention and response expertise. As is clear from previous administrations, this work suffers when there are gaps in senior leadership in key posts, such as the Under-Secretary for Civilian Security or the Ambassador-at-Large for Global Criminal Justice. But these aptitudes must exist at all levels throughout the government and be baked into job descriptions and titles. In addition, the diplomatic corps, USAID field officers, and other deployed personnel must be empowered to play an essential role in early warning and response, and in supporting genuine transitional justice processes underway in host countries, through training at the Foreign Service Institute (FSI) and elsewhere. Agencies should reward individuals who serve with distinction in at-risk situations when it comes to promotions and forms of special recognition. In this way, the United States should continue to build expertise within its ranks.

Conclusion

Even with an exquisite bureaucratic architecture, unlimited funds, and indomitable political will, there are no guarantees. This work is hard. Situations evolve rapidly and atrocities can be the result of complex historical, cultural, and political factors that may be inscrutable to outsiders. The United States—even working by, with, and through partners and the United Nations—is not omnipotent. But it does have unique capabilities, in terms of both its operational acumen and its ability to convene a coalition of the willing. History demonstrates that investments in prevention do pay off and the course of events can be altered. By recommitting to the atrocities prevention and response agenda, the United States can restore its own international standing while also contributing to the protection of those most vulnerable and ensuring a more just and peaceful world. So, this global governance agenda is worth the effort. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).