By Any Other Name: Thoughts on U.S. Genocide Determinations
The following is a guest post by Avril Haines, deputy director of Columbia World Projects at Columbia University, and John B. Bellinger III, cochair of Arnold & Porter’s global law and public policy practice and adjunct senior fellow in international and national security law at the Council on Foreign Relations. Haines served as principal deputy national security advisor to President Barack Obama and deputy director of the CIA from 2013 to 2017. Bellinger served as legal advisor for the U.S. Department of State from 2005 to 2009.
Reminders of the inhumanity associated with atrocities such as those committed by Nazi Germany during the Holocaust are all the more poignant today, as acts of genocide continue despite efforts by governments and nongovernmental organizations to prevent them. The best-known international effort to prevent genocide—the Convention on the Prevention and Punishment of the Crime of Genocide—has attracted broad acceptance since it was signed in December 1948 and entered into force in 1951 (150 countries are now parties), yet mass atrocities continue to take place across the globe. In short, there is more work to be done. Today, we are honored to be part of an effort sponsored by the U.S. Holocaust Memorial Museum, which is dedicated to stimulating timely global action to prevent genocide and to catalyze an international response when it occurs.
Inspired by last year’s seventieth anniversary of the signing and thirtieth anniversary of U.S. ratification of the Genocide Convention, the U.S. Holocaust Memorial Museum is today releasing an important report entitled “By Any Other Name: How, When, and Why the U.S. Government Has Made Genocide Determinations.” We have been pleased to serve as the cochairs of an advisory group that the museum convened to guide the preparation of this report, which we hope will assist future administrations to construct an approach to making genocide determinations in a way that is both consistent with U.S. foreign policy interests and likely to promote the prevention and punishment of genocide and other mass atrocities.
The report—researched and written by former State Department Ambassador for Global Criminal Justice Todd Buchwald and former National Security Council and State Department official Adam Keith—reviews the cases where the U.S. government has made a public determination that genocide had occurred (e.g., Bosnia, Rwanda, Darfur and areas controlled by the self-proclaimed Islamic State), including the de facto process (led by the State Department) for making such decisions, and provides certain recommendations in light of the historical record.
As a preliminary matter, the report describes the widely differing understandings and interpretations of what exactly the word “genocide” means, the degree to which such legal discussions can be distracting, and how the U.S. government and others interpret the legal obligations of states when genocide is occurring or may occur. Although the 1948 Genocide Convention contains a legal definition of genocide, it is narrower than the public perception of what “genocide” means. Legal experts also differ on the meaning of specific phrases as well as the standard of evidence that should be applied in the context of a determination.
In debates over use of the term “genocide,” we have personally seen how what meets the legal definition is not always what policymakers or advocates perceive to be valid in light of the political and moral consequences of such a determination. This is likely obvious to the diplomats, lawyers, and activists who work every day to shape policy on issues of national security, taking care to calibrate and scrutinize government statements for shades of nuance, but the results can be extraordinarily unsatisfying where the underlying acts are so vile. What falls into the legal definition is often contested, misunderstood, and otherwise difficult to prove, and too much focus on what does not meet the treaty’s definition can contribute to a sense that only those atrocities that do meet the definition actually merit the world’s attention. The report concludes, and we agree, that policymakers should be careful not to allow the legal discussion to eclipse or drive the policy discussion, and should shape their statements to avoid the suggestion that atrocities that do not meet the treaty’s definition of genocide are somehow less important to prevent or punish than other atrocities.
Recent cases in point serve to highlight the challenges associated with this recurring issue. The Barack Obama Administration, for example, faced the question late in its second term of whether to state publicly that atrocities committed by Islamic State forces—which were undeniably horrific, even as a U.S.-led military campaign worked to stop the group—amounted to genocide. Then U.S. Secretary of State John Kerry, in response to repeated and urgent queries, as well as a robust discussion regarding which acts met the legal definition of genocide, ultimately reached the conclusion that genocide had been committed with respect to the Yezidis, Christians, and Shia Muslims, adding that these and other groups had also faced ethnic cleansing and crimes against humanity. The Donald J. Trump Administration affirmed these judgments the following year.
Drawing on publicly available documents and interviews with current and former officials, the report describes myriad factors that have led to or impeded genocide determinations, including the availability of evidence, the actions of advocates, and the anticipated impact on U.S. policy of making a determination. It recalls episodes in which, for example, policymakers were reluctant to use the word “genocide”—at least in part because of concerns that doing so might generate unwanted pressure to take action that an administration believed to be inconsistent with U.S. interests. The fact that similar questions have arisen even in the last two years regarding whether and how the U.S. government should characterize the Myanmar government’s abuses against the country’s Rohingya and other minority ethnic groups makes clear that these are enduring issues.
The report makes clear that the internal process of reaching a determination of genocide in and of itself can be valuable, as is taking steps to highlight indicators leading to mass atrocities in order to help prevent them from happening. We have seen firsthand how the government’s deliberate process to assess unfolding atrocities can be critical for establishing a historical record, laying the groundwork for accountability efforts, and in providing acknowledgement to the victims, not only of the extent of their suffering, but also of the veracity of their claims. We agree with the report that, in a world where action to prevent or respond to genocide is often difficult to mobilize, activists and governments alike have seen value in calling genocide by its name, even though policymakers and advocates should be realistic about the catalytic impact that a genocide determination is likely to provoke.
At the same time, we endorse the report’s conclusion that taking action to prevent or stop a mass atrocity should be a higher priority than naming the crime and, while a public determination can promote effective atrocity prevention, there may be circumstances in which the debate surrounding such determinations may, however unwittingly, have negative consequences. For example, there are difficulties in seeking to show that genocide has occurred while atrocities are unfolding, and a determination under such circumstances should not delay action to prevent further atrocities, or suggest that a robust response should be limited to only those mass atrocities that are determined to fall within the definition of genocide.
We also agree with the report’s conclusion regarding the importance of reinforcing or improving the U.S. government’s posture for mobilizing a multilateral response to stop or prevent additional atrocities and laying the groundwork for accountability efforts, even as a process for making a genocide determination is underway. In particular, as the report highlights, statements regarding the risk of genocide or any other mass atrocity may be especially helpful and should be routinely considered during the course of any process associated with making a determination of genocide.
In short, we believe that “By Any Other Name” will provide policymakers and others a useful guide for navigating the complex issues of language, law, policy, morality, and memory that inevitably will be raised in the public narrative associated with such determinations in future cases. It can bolster future efforts to prevent such crimes by helping executive branch participants in the process as well as members of Congress, the media, and civil society to understand better the role that the laws and language surrounding genocide can play in the U.S. government’s response to it.