The Oxford Handbook on Atrocity Crimes 9780190915629, 9780190915636, 0190915625

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Cover
THE OXFORD HANDBOOK ON ATROCITY CRIMES
Copyright
Contents
Acknowledgements
List of Abbreviations
List of Contributors
Introduction: Atrocity Crimes and Atrocity Studies—​Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn
PART I — ​Atrocity Crimes
1. Genealogy and Etymology of Atrocity Crimes—​Jeremy Kuperberg and John Hagan
2. On the Empirical Study of Atrocity Crimes—​Catrien Bijleveld
3. Atrocity Crimes as a Different Type of Crime?—​Mark A. Drumbl
PART II — ​Etiology and Causes of Atrocity Crimes
4. Origins of Predicting Genocide and Politicide: Risk Assessments and Early Warnings—​Barbara Harff
5. Human Rights and Atrocities—​Melanie O’Brien
6. Armed Conflict and Atrocities: Understanding Power Dynamics—​Jolle Demmers
7. Natural Resources and Atrocities—​Kieran Mitton
8. Democracies, Dictatorial Regimes, and Atrocities—​Maartje Weerdesteijn
9. Ideologies, Identities, and Speech in Atrocities—​Jonathan Leader Maynard
10. Meso-​Level Dynamics of Atrocities—​Rachel Jacobs and Scott Straus
11. Detention, Torture, Disappearance: The Crimes of Atrocious Organizations—​Susanne Karstedt
PART III —​ Actors in Atrocity Crimes
12. Individuals as Perpetrators of Atrocity Crimes—​Alette Smeulers
13. Individuals as Bystanders to Atrocity Crimes—​Roland Moerland
14. On the Margins: Role-​Shifting in Atrocity Crimes—​Erin Jessee
15. Child Soldiers—​Myriam Denov and Anaïs Cadieux Van Vliet
16. Non-​State Actors and Atrocity Crimes—​Uğur Ümit Üngör
17. The Involvement of Corporations in Atrocity Crimes—​ Wim Huisman, Susanne Karstedt, and Annika van Baar
18. The Role of the State in Atrocity Crimes—​Christopher W. Mullins
19. The International Community and Atrocity Crimes: The Responsibility to Protect—​Alex J. Bellamy
PART IV — ​Harm and Victims of Atrocity Crimes
20. Victimology of Atrocity Crimes—​Antony Pemberton and Rianne Letschert
21. How Can Mortality Due to Atrocity Crimes Be Estimated? Methods and Data Sources—​Helge Brunborg
22. Atrocity Crimes and Ecocide: Interrelations between Armed Conflict, Violence, and Harm to the Environment—​Daan P. van Uhm
23. Forced Migrants and Atrocity Crimes—​Victoria Colvin and Phil Orchard
24. In the Aftermath of Atrocities: Research on the Intergenerational Transmission of Trauma and Violence—​Lidewyde Berckmoes
PART V —​ Reactions to Atrocity Crimes
25. Transitional Justice in the 21st Century: History, Effectiveness, and Challenges—​David Tolbert and Marcela Prieto Rudolphy
26. International Criminal Justice—​Nancy Amoury Combs
27. Sexual Violence as a Practice of War: Implications for the Investigation and Prosecution of Atrocity Crimes—​Kim Thuy Seelinger and Elisabeth Jean Wood
28. Amnesties and Truth Commissions—​Jeremy Julian Sarkin
29. Customary Responses—​Joanna R. Quinn
30. Reparations and the Role of Apologies—​Stephanie Wolfe
31. Memory and Memorialization after Atrocities—​Nicole Fox
PART VI — ​Case Studies
32. War Crimes in Angola—​Joris van Wijk
33. War Crimes, Atrocities, and Resistance in Colombia—​Oliver Kaplan
B. Crimes against Humanity
34. Crimes against Humanity in Indonesia (1965–​1966)— ​Jess Melvin and Annie Pohlman
35. Crimes against Humanity and Transitional Justice in Ethiopia (1935–​2020)—​Thijs B. Bouwknegt and Tadesse Simie Metekia
C. Genocide
36. Guatemala: Genocide and its Aftermath—​Naomi Roht-​Arriaza
37. Genocide against the Êzidîs in Iraq: The Sinjār Massacre and its Aftermath—​Kjell Anderson
Index

Citation preview

THE OXFORD HANDBOOK oN

ATROCITY CRIMES

THE OXFORD HANDBOOK ON

ATROCITY CRIMES Edited by

BA R B O R A   HO L Á , HO L L I E N YSE T H N Z I TAT I R A , and

M A A RT J E W E E R D E ST E I J N

1

3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2022 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Holá, Barbora, 1980- editor. | Nyseth, Hollie Nzitatira, 1986- editor. | Weerdesteijn, Maartje, 1984- editor. Title: The Oxford handbook on atrocity crimes / [edited by] Barbora Holá, Hollie Nyseth Nzitatira, Maartje Weerdesteijn. Description: New York, NY : Oxford University Press, [2022] | Includes bibliographical references and index. | Identifiers: LCCN 2021029382 (print) | LCCN 2021029383 (ebook) | ISBN 9780190915629 (hardback) | ISBN 9780190915636 (epub) Subjects: LCSH: Atrocities. | Genocide. Classification: LCC HV6322.7 .O95 2022 (print) | LCC HV6322.7 (ebook) | DDC 364.15/1—dc23 LC record available at https://lccn.loc.gov/2021029382 LC ebook record available at https://lccn.loc.gov/2021029383 DOI: 10.1093/oxfordhb/9780190915629.001.0001 1 3 5 7 9 8 6 4 2 Printed by Sheridan Books, Inc., United States of America

Contents

Acknowledgements List of Abbreviations List of Contributors

Introduction: Atrocity Crimes and Atrocity Studies—​Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn

ix xi xv 1

PA RT I — ​A T RO C I T Y C R I M E S 1. Genealogy and Etymology of Atrocity Crimes—​Jeremy Kuperberg and John Hagan

27

2. On the Empirical Study of Atrocity Crimes—​Catrien Bijleveld

51

3. Atrocity Crimes as a Different Type of Crime?—​Mark A. Drumbl

75

PA RT I I — ​E T IOL O G Y A N D C AU SE S OF AT RO C I T Y C R I M E S 4. Origins of Predicting Genocide and Politicide: Risk Assessments and Early Warnings—​Barbara Harff

97

5. Human Rights and Atrocities—​Melanie O’Brien

115

6. Armed Conflict and Atrocities: Understanding Power Dynamics—​Jolle Demmers

141

7. Natural Resources and Atrocities—​Kieran Mitton

159

8. Democracies, Dictatorial Regimes, and Atrocities—​Maartje Weerdesteijn

187

9. Ideologies, Identities, and Speech in Atrocities—​Jonathan Leader Maynard

209

10. Meso-​Level Dynamics of Atrocities—​Rachel Jacobs and Scott Straus

235

vi   Contents

11. Detention, Torture, Disappearance: The Crimes of Atrocious Organizations—​Susanne Karstedt

255

PA RT I I I — ​ AC TOR S I N AT RO C I T Y C R I M E S 12. Individuals as Perpetrators of Atrocity Crimes—​Alette Smeulers

281

13. Individuals as Bystanders to Atrocity Crimes—​Roland Moerland

303

14. On the Margins: Role-​Shifting in Atrocity Crimes—​Erin Jessee

329

15. Child Soldiers—​Myriam Denov and Anaïs Cadieux Van Vliet

351

16. Non-​State Actors and Atrocity Crimes—​Uğur Ümit Üngör

373

17. The Involvement of Corporations in Atrocity Crimes—​ Wim Huisman, Susanne Karstedt, and Annika van Baar

393

18. The Role of the State in Atrocity Crimes—​Christopher W. Mullins

423

19. The International Community and Atrocity Crimes: The Responsibility to Protect—​Alex J. Bellamy

441

PA RT I V — ​H A R M A N D V IC T I M S OF AT RO C I T Y C R I M E S 20. Victimology of Atrocity Crimes—​Antony Pemberton and Rianne Letschert

461

21. How Can Mortality Due to Atrocity Crimes Be Estimated? Methods and Data Sources—​Helge Brunborg

481

22. Atrocity Crimes and Ecocide: Interrelations between Armed Conflict, Violence, and Harm to the Environment—​Daan P. van Uhm

511

23. Forced Migrants and Atrocity Crimes—​Victoria Colvin and Phil Orchard

535

24. In the Aftermath of Atrocities: Research on the Intergenerational Transmission of Trauma and Violence—​Lidewyde Berckmoes

555

Contents   vii

PA RT V — ​ R E AC T ION S TO AT RO C I T Y C R I M E S 25. Transitional Justice in the 21st Century: History, Effectiveness, and Challenges—​David Tolbert and Marcela Prieto Rudolphy

581

26. International Criminal Justice—​Nancy Amoury Combs

617

27. Sexual Violence as a Practice of War: Implications for the Investigation and Prosecution of Atrocity Crimes—​Kim Thuy Seelinger and Elisabeth Jean Wood

649

28. Amnesties and Truth Commissions—​Jeremy Julian Sarkin

675

29. Customary Responses—​Joanna R. Quinn

703

30. Reparations and the Role of Apologies—​Stephanie Wolfe

725

31. Memory and Memorialization after Atrocities—​Nicole Fox

755

PA RT V I — ​C A SE S T U DI E S A.  War Crimes 

773

32. War Crimes in Angola—​Joris van Wijk

775

33. War Crimes, Atrocities, and Resistance in Colombia—​Oliver Kaplan

801

B.  Crimes against Humanity

827

34. Crimes against Humanity in Indonesia (1965–​1966)— ​Jess Melvin and Annie Pohlman

829

35. Crimes against Humanity and Transitional Justice in Ethiopia (1935–​2020)—​Thijs B. Bouwknegt and Tadesse Simie Metekia

853

C. Genocide

877

36. Guatemala: Genocide and its Aftermath—​Naomi Roht-​Arriaza

879

37. Genocide against the Êzidîs in Iraq: The Sinjār Massacre and its Aftermath—​Kjell Anderson

899

Index 921

Acknowledgements

First, we thank the contributors to this volume; we are very grateful for the amazing efforts that went into each individual chapter. At Oxford University Press, we thank James Cook and Michael Tonry for their initial assistance, as well as Meredith Keffer and Macey Fairchild for bringing the Handbook to fruition. We are likewise appreciative of a stellar team of graduate students pursuing the International Crimes, Conflict, and Criminology Master’s degree at Vrije Universiteit Amsterdam, Jacqueline Beveridge and Madison March, who assisted with formatting and editing. Finally, as we write these brief acknowledgments, atrocity crimes are unfolding around the world. We hope that this handbook will encourage additional research and related concern for these crimes, which are truly an affront to all people and which have many lasting ramifications for peoples and cultures long after atrocity crime itself has subsided. Barbora Holá Hollie Nyseth Nzitatira Maartje Weerdesteijn

List of Abbreviations

ACCU ​Autodefensas Campesinas de Córdoba y Urabá (Colombia) AFDL ​Alliance of Democratic Forces for the Liberation of Congo-​Zaire (DRC) AHPN ​Archivo Histórico de la Policía Nacional (Guatemala) AI ​Amnesty International AIAN ​American Indian and Alaska Native AMISOM ​African Union Mission to Somalia ATCA ​Alien Tort Claims Act (USA) AU ​African  Union AUC ​Autodefensas Unidas de Colombia (Colombia) BiH ​Bosnia and Herzegovina BTI ​Bertelsmann Stiftung’s Transformation Index CALDH ​Center for Human Rights Legal Action (Guatemala) CAR ​Central African Republic CAT ​Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment CAVR ​Commission for Reception, Truth, and Reconciliation (Timor-​Leste) CEDAW ​Convention on the Elimination of All Forms of Discrimination against Women CEH ​United Nations Commission on Historical Clarification CERD ​Convention on the Elimination of All Forms of Racial Discrimination CIA ​Central Intelligence Agency (USA) CICIG ​Commission against Impunity (Guatemala) CIEDP ​Commission of Investigation on Enforced Disappeared Persons (Nepal) CINEP ​Centro de Investigación y Educación Popular (Colombia) CIPEV ​Commission of Inquiry into Post-​Election Violence (Kenya) CMR ​Crude Mortality Rate CNE ​National Electoral Commission (Angola) CNRR ​National Commission on Reparation and Reconciliation (Colombia) CPR ​Civil and Political Rights CRC ​Convention on the Rights of the Child CRIC ​Regional Indian Council of Cauca (Colombia) CRP ​Community Reconciliation Process (Timor-​Leste) CRPD ​Convention on the Rights of Persons with Disabilities CTF ​Commission on Truth and Friendship (Indonesia, Timor-​Leste) CUD ​Coalition for Unity and Democracy (Ethiopia) CVR ​Comisión de la Verdad y Reconciliación (Colombia) DDR ​Disarmament, Demobilization, and Reintegration

xii   List of Abbreviations DHS ​Demographic and Health Surveys DINA ​National Intelligence Directorate (Chile) DRC ​Democratic Republic of the Congo ECCC ​Extraordinary Chambers in the Courts of Cambodia ECtHR ​European Court of Human Rights ELN ​Ejército de Liberación Nacional (Colombia) ENDF ​Ethiopian National Defense Forces EPL ​Ejército Popular de Liberación (Colombia) EPRDF ​Ethiopian People’s Revolutionary Democratic Front EPRP ​Ethiopian People’s Revolutionary Party EW ​Early Warning FARC ​Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (Colombia) FARDC ​Forces Armées de la République Démocratique du Congo (DRC) FDRE ​Federal Democratic Republic of Ethiopia FEWER ​Forum of Early Warning and Early Response FLEC ​Frente de Libertação de Cabinda (Angola) FLN ​Front de Libération Nationale (Algeria) FNI ​Front des Nationalistes et Intégrationnistes (DRC) FNLA ​Frente Nacional de Libertação de Angola (Angola) FRELIMO ​Frente de Libertação de Moçambique (Mozambique) FRY ​Federal Republic of Yugoslavia GDP ​Gross Domestic Product HEWS ​Humanitarian Early Warning System HPE ​Êzidîxan Protection Force (Iraq) HRC ​Human Rights Council HRW ​Human Rights Watch IACHR ​Inter-​American Commission on Human Rights ICC ​International Criminal Court ICCPR ​International Covenant on Civil and Political Rights ICESCR ​International Covenant on Economic, Social, and Cultural Rights ICISS ​International Commission on Intervention and State Sovereignty ICJ ​International Court of Justice ICL ​International Criminal Law ICMP ​International Commission on Missing Persons ICRC ​International Committee of the Red Cross ICTJ ​International Center for Transitional Justice ICTR ​International Criminal Tribunal for Rwanda ICTY ​International Criminal Tribunal for the former Yugoslavia IDDRS ​United Nations Integrated Disarmament, Demobilization, and Reintegration Standards IDPs ​Internally Displaced Person(s) IHL ​International Humanitarian Law ILC ​United Nations International Law Commission IMT ​International Military Tribunal IPV ​Intimate Partner Violence

List of Abbreviations    xiii IR ​International Relations IRA ​The Irish Republican Army (Ireland) IRO ​International Refugee Organization IS ​Islamic  State ISCED ​Instituto Superior de Ciências de Educação (Angola) ISIL ​Islamic State of Iraq and the Levant ISIS ​Islamic State of Iraq and Syria IUSSP ​International Union for the Scientific Study of Population JCE ​Joint Criminal Enterprise JEP ​Jurisdicción Especial para la Paz (Colombia) KDP ​Kurdish Democratic Party (Iraq) KSC ​Kosovo Specialist Chambers Komnas HAM ​Komisi Nasional Hak Asasi Manusia (Indonesia) KontraS ​Commission for the Disappeared and Victims of Violence (Indonesia) KRG ​Kurdish Regional Government (Iraq) LRA ​Lord’s Resistance Army (Uganda) LTTE ​The Liberation Tigers of Tamil Eelam (Sri Lanka) MAQL ​Quintin Lame Armed Movement (Colombia) MAS ​Death to Kidnappers (Colombia) MINUSMA ​United Nations Multidimensional Integrated Stabilization Mission in Mali MPLA ​Movimento Popular de Libertação de Angola (Angola) MRND(D) ​National Republican Movement for Democracy (and Development) (Rwanda) M-​19 19th of April Movement (Colombia) MSE Multiple Systems Estimation MSF ​Médecins Sans Frontières NATO ​North Atlantic Treaty Organization NGO(s) ​Non-​Governmental Organization(s) NHRIs ​National Human Rights Institutions NMT ​Nuremberg Military Tribunal NRL ​National Reconciliation Law (Guatemala) NSAs ​Non-​State  Actors OECD ​Organization for Economic Cooperation and Development OGP ​Office of the General Prosecutor (Timor-​Leste) OHCHR ​United Nations Office of the High Commissioner for Human Rights OSCE ​Organization for Security and Cooperation in Europe OTP ​Office of the Prosecutor of the International Criminal Court PAC ​Patrullas de Autodefensa Civil (Guatemala) PHR ​Physicians for Human Rights PKI ​Partai Komunis Indonesia (Indonesia) PKK ​Partiya Karkerên Kurdistanê (Iraq, Turkey) PLO ​Palestinian Liberation Organization PNR ​Programa Nacional de Resarcimiento (Guatemala) POW ​Prisoner of War PTSD ​Post-​Traumatic Stress Disorder

xiv   List of Abbreviations QRA ​Qualitative Comparative Analysis R2P ​Responsibility to Protect REHMI ​Recovery of Historical Memory Project (Guatemala) RPA ​Rwandan Patriotic Army (Rwanda) RPF ​Rwandan Patriotic Front (Rwanda) RSHA ​Reichssicherheitshauptamt (Germany) RTLM ​Radio et Television Libre des Mille Collines (Rwanda) RUF ​Revolutionary United Front (Sierra Leone) SCSL ​Special Court for Sierra Leone SD ​Sicherheitsdienst (Germany) SJP ​Special Jurisdiction for Peace (Colombia) SPO ​Special Prosecutor’s Office (Ethiopia) SS ​Schutzstaffel (Germany) TCs ​Truth Commissions TCK ​Truth and Reconciliation Commission (Korea) TDC ​Truth and Dignity Commission (Tunisia) TGE ​Transitional Government of Ethiopia TJRC ​Truth, Justice, and Reconciliation Commission (Kenya) TRC ​Truth and Reconciliation Commission UC-​ELN ​Unión Camilista-​Ejército de Liberación Nacional (Colombia) UDA ​Ulster Defence Association (Northern Ireland, UK) UDHR ​Universal Declaration of Human Rights UN ​United Nations UNAMIR ​United Nations Assistance Mission in Rwanda UNEP ​United Nations Environment Programme UNESCO ​United Nations Educational, Scientific, and Cultural Organization UNHCR ​United Nations High Commissioner for Refugees UNITA ​União Nacional para a Independência total de Angola (Angola) UNITAD ​UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (United Nations Security Council Resolution 2379) UNMISS ​United Nations Mission in South Sudan UNOCI ​United Nation Operation in Côte d’Ivoire UNSC ​United Nations Security Council UNWCC ​United Nations War Crimes Commission UP ​Unión Patriótica (Colombia) UPR ​Universal Periodic Review URNG ​Unidad Revolucionaria Nacional Guatemalteca (Guatemala) UVF ​Ulster Volunteer Force (Northern Ireland, UK) ​WPF ​World Peace Foundation YBS ​Yekîneyên Berxwedana Şengalê (Iraq)

List of Contributors

Kjell Anderson  is the director of the Master of Human Rights program at the University of Manitoba, and Assistant Professor of Law. His publications include a monograph, Perpetrating Genocide: A Criminological Account, an edited volume (with Erin Jessee), Researching Perpetrators of Genocide, and articles and chapters on genocide, mass atrocities, conflict, and transitional justice. His current major research projects include a book on Dominic Ongwen and his trial at the International Criminal Court. Alex J. Bellamy  is Professor of Peace and Conflict Studies and Director of the Asia Pacific Centre for the Responsibility to Protect at the University of Queensland, Australia. Lidewyde Berckmoes  is Assistant Professor “Regional Conflict in Contemporary Africa” at the African Studies Centre Leiden at Leiden University and is Fellow at the Netherlands Institute for the Study of Crime and Law Enforcement in Amsterdam. She has a background in Anthropology, Development Studies, and African Studies. Her research interest lies in the long-​term and intergenerational consequences of conflict, for which she conducted extensive fieldwork research with children, youth, and families, particularly in the Great Lakes Region. Catrien Bijleveld  is Senior Researcher at the Netherlands Institute for the Study of Crime and Law Enforcement, member of the Netherlands Scientific Council for Government Policy, and professor of Research Methods for Empirical Legal and Criminological Research at Vrije Universiteit Amsterdam. She is a research methodologist and criminal lawyer by training. Her research has focused on criminal careers and intergenerational continuities in crime. Thijs B. Bouwknegt  is Researcher at the NIOD Institute for War, Holocaust and Genocide Studies (part of the Royal Netherlands Academy of Arts and Sciences, KNAW), the Netherlands. His research covers the history of mass atrocity violence, history politics after mass atrocity violence (“transitional history”) and transitional justice processes concerning mass atrocity violence. Helge Brunborg  is a demographer and retired Senior Research Fellow, Statistics, Norway. He worked as investigator at the ICTY in 1997–​1998 and later as a consultant and an expert witness. Helge was the Chair of the International Union for the Scientific Study of Population (IUSSP) Working Group on the Demography of Conflict and Violence (2002–​2004) and the Panel on the Demography of Armed Conflict (2005–​2009). After retirement in 2014, he has mostly worked on international recommendations on refugee statistics, estimation of statelessness, and on improving civil registration and vital statistics internationally.

xvi   List Of Contributors Victoria Colvin  is Lecturer at the School of Law, University of Wollongong. She completed her doctorate at the TC Beirne School of Law, University of Queensland, in 2017. From 2001 to 2009, she was a prosecutor with the Criminal Justice Branch of the Attorney General of British Columbia, Canada. She is the co-​editor, with Philip Stenning, of The Evolving Role of the Public Prosecutor: Challenges and Innovations (Routledge, 2018). Nancy Amoury Combs  is Ernest W. Goodrich Professor of Law and the Director of the Human Security Center at William & Mary Law School. She has authored more than two dozen law review articles and book chapters on international criminal law topics as well as two monographs: Factfinding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010) and Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach (Stanford University Press 2007). Jolle Demmers  is Professor in Conflict Studies at the History of International Relations section at the History Department of Utrecht University, The Netherlands. Myriam Denov  is Professor at McGill University and holds the Canada Research Chair in Youth, Gender, and Armed Conflict. Her research interests lie in the areas of children and families affected by war, migration, and its intergenerational impact. She is the author of Child Soldiers: Sierra Leone’s Revolutionary United Front (Cambridge University Press) and co-​editor of Children Affected by Armed Conflict: Theory, Method, and Practice (Columbia University Press). Mark A. Drumbl  is Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University. Nicole Fox is Assistant Professor of Criminal Justice at California State University, Sacramento. Her research centers on how racial and ethnic contention impacts communities, with a focus on how remembrances of adversity shape social change and collective memory. Her most recent project examines individuals who conducted acts of rescue during episodes of mass violence, theorizing the social factors that shape high-​risk actions and upstander behavior. Her 2021 book After Genocide: Memory and Reconciliation in Rwanda (University of Wisconsin Press) analyzes how memorials matter in the lives of genocide survivors currently residing in Rwanda. John Hagan is John D. MacArthur Professor of Sociology and Law at Northwestern University and Co-​Director of the Center on Law and Globalization at the American Bar Foundation. He was elected Fellow of the National Academy of Sciences, 2017 and Fellow of the American Academy of Arts and Sciences, 2010. He is the author of the 2012 Princeton University Press book, Who Are the Criminals? The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan and the 2015 Cambridge University Press book with Josh Kaiser and Anna Hanson, Iraq and the Crimes of Aggressive War. Barbara Harff  is Professor Emerita at the United States Naval Academy in Annapolis, Maryland. She has written dozens of articles, chapters, and books on the causes, risks, and prevention of genocidal violence including Preventing Mass Atrocities: Policies and Practices (Routledge, 2019). In 2013, she was awarded the Raphael Lemkin Prize for her affirmative stand and great contribution to genocide prevention by the Auschwitz Institute for Peace and Reconciliation.

List Of Contributors    xvii Barbora Holá  is Senior Researcher at the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) and Associate Professor at the Department of Criminal Law and Criminology at Vrije Universiteit Amsterdam, the Netherlands. Wim Huisman  is Professor and chair of criminology at Vrije Universiteit Amsterdam, the Netherlands. He is co-​editor in chief of the journal Crime, Law & Social Change, and he is a member of the board of the European working group on Organizational Crime (EUROC) of the European Society of Criminology. Rachel Jacobs is Assistant Professor of Political Science and International Studies at Dickinson College. Erin Jessee  is Senior Lecturer in History at the University of Glasgow. She has over a decade of experience conducting qualitative fieldwork in conflict-​affected contexts, particularly Rwanda, Bosnia-​Hercegovina, and Uganda. She is the author of Negotiating Genocide in Rwanda: The Politics of History (Palgrave Macmillan, 2017) and has also published articles in such notable journals as Memory Studies, Conflict and Society, History in Africa, Oral History Review, and Forensic Science International, among others. Oliver Kaplan  is Associate Professor at the Josef Korbel School of International Studies at the University of Denver. He is the author of the book Resisting War: How Communities Protect Themselves (Cambridge University Press, 2017), which examines how civilian communities organize to protect themselves from wartime violence. Kaplan received his Ph.D. in political science from Stanford University and completed his B.A. at the University of California, San Diego. Susanne Karstedt  is Professor in the School of Criminology and Criminal Justice and the Griffith Criminology Institute at Griffith University, Australia. Her research focuses on comparative criminology, and she has researched and written widely on state crime, atrocity crimes, and transitional justice. She was co-​founder and chair of the European Criminology Group on Atrocity Crimes and Transitional Justice. Jeremy Kuperberg is Ph.D. candidate at the Northwestern University Department of Sociology. Rianne Letschert  is Rector Magnificus and Professor in International Law and Victimology at Maastricht University, the Netherlands. From April 2010 to August 2010, she was a visiting Research Fellow at the Lauterpacht Centre for International Law at the University of Cambridge (UK) and Research Fellow of Clare Hall, Cambridge, where she was offered a lifelong membership. In 2014, she was a visiting professor at the University of Barcelona, Spain. Letschert has authored and edited several book publications and articles in national and international journals in the field of mass victimization. Jonathan Leader Maynard  is Lecturer in International Politics at King’s College London. Prior to joining King’s in 2020, he was based at the University of Oxford. His research focuses on the role of ideology in mass atrocities and armed conflict, and he has published in scholarly journals including the British Journal of Political Science, Journal of Peace Research, Terrorism and Political Violence, Ethics, and Genocide Studies and Prevention. Jess Melvin is Australian Research Council Discovery Early Career Researcher Award (DECRA) Fellow in the Department of History, School of Philosophical and Historical

xviii   List Of Contributors Inquiry (SOPHI), at the University of Sydney, Australia. She is the author of The Army and the Indonesian Genocide: Mechanics of Mass Murder (2018). Her research interests include the legacies of the Cold War in Southeast Asia, the Indonesian military, and political violence. Tadesse Simie Metekia  is Senior Researcher at the Institute for Security Studies, Addis Ababa, Ethiopia. Kieran Mitton is Reader in Conflict, Security and Development in the Department of War Studies at King’s College London [etc] in the Department of War Studies at King’s College London, and author of Rebels in a Rotten State: Approaches to Understanding Atrocity in the Sierra Leone Civil War (Hurst/​Oxford University Press, 2015). Roland Moerland is Assistant Professor of Criminology at Maastricht University, the Netherlands. In his research and teaching, he focuses on the causes of gross human rights violations and how relevant stakeholders deal with such violations afterward. He is a Board Member of the Maastricht Centre for Human Rights, and he serves as an editor to Genocide Studies and Prevention: An International Journal. Christopher W. Mullins  is Professor of Criminology and Criminal Justice at Southern Illinois University. His research focuses on the structural and cultural aspects of violence, including street violence, terrorism, and atrocity crimes. He has published four books, Crime, Justice and Social Diversity; Holding Your Square: Masculinities, Streetlife and Violence (Routledge, 2015); Blood, Power, and Bedlam: Violations of International Criminal Law in Post-​Colonial Africa (Peter Lang Inc., 2008); and The International Criminal Court: Symbolic Gestures and the Generation of Global Social Control (Lexington Books, 2006); one co-​edited volume, State Crime: Current Perspectives (Rutgers University Press, 2010); and over sixty peer-​reviewed articles and book chapters in a wide variety of outlets. Hollie Nyseth Nzitatira  is Associate Professor of Sociology at The Ohio State University. She has published over 40 articles and book chapters on genocide and mass violence, as well as how countries rebuild in the aftermath. Her two current projects funded by the U.S. National Science Foundation examine Rwanda’s gacaca courts and peoples’ reentry and reintegration following incarceration for genocide in Rwanda. Melanie O’Brien is Associate Professor of International Law at the University of Western Australia, an award-​winning teacher of International Humanitarian Law, Public International Law, and Research units. Her research examines the connection between human rights and the genocide process and sexual exploitation by peacekeepers, including Criminalising Peacekeepers: Modernising National Approaches to Sexual Exploitation and Abuse (Palgrave, 2017). She is President of the International Association of Genocide Scholars (IAGS), and an admitted legal practitioner who has previously worked at several Australian universities; the National Human Rights Institution of Samoa; and the Legal Advisory Section of the Office of the Prosecutor at the International Criminal Court. Phil Orchard is Associate Professor of International Relations at the University of Wollongong and Senior Research Fellow at the Asia-​Pacific Centre for the Responsibility to Protect. He is the author of A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge University Press, 2014), which won the 2016 International Studies Association Ethnicity, Nationalism, and Migration Studies Section

List Of Contributors    xix Distinguished Book Award, and Protecting the Internally Displaced: Rhetoric and Reality (Routledge, 2018). He is also the co-​editor, with Alexander Betts, of Implementation in World Politics: How Norms Change Practice (Oxford University Press, 2014). Antony Pemberton is Professor of Restorative Justice at the Leuven Institute of Criminology, KU Leuven, Belgium, and Senior Researcher at the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) in Amsterdam, the Netherlands. He has a background in political science and criminology. His primary interests concern the broad topics of victims and society, in particular cultural and narrative victimology and the ethics of victimology and of humane responses to injustice, including the study and implementation of restorative processes. Annie Pohlman is Senior Lecturer in Indonesian at The University of Queensland, Australia. She is the author of Women, Sexual Violence, and the Indonesian Killings of 1965–​ 66 (Routledge, 2015) and the co-​editor of three volumes on mass atrocities in Asia. Her research interests include Indonesian history, gendered experiences of mass violence, torture, and life narrative. Marcela Prieto Rudolphy is Assistant Professor of Law at the University of Southern California, Gould School of Law and has J.S.D and LLM degrees from New York University. She holds a law degree from Pontificia Universidad Católica de Chile. From 2012 to 2014, she worked at the Chilean Ministry of Interior Human Rights Program (Programa Continuación Ley 19.123) prosecuting crimes against humanity committed during Augusto Pinochet’s military dictatorship. Joanna R. Quinn is Director of the Center for Transitional Justice and Post-​Conflict Reconstruction and Professor of Political Science at The University of Western Ontario. She has written on the role of customary justice in Uganda, Fiji, and the Solomon Islands. Naomi Roht-​Arriaza  is the Albert Abramson 1954 Chair and Distinguished Professor of Law at the University of California, Hastings College of Law in San Francisco. She is the author of Impunity and Human Rights in International Law and Practice (Oxford University Press, 1995), The Pinochet Effect: Transnational Justice in the Age of Human Rights (University of Pennsylvania Press, 2005), Transitional Justice in the Twenty-​First Century (Cambridge University Press, 2006), and numerous articles as well as a casebook on international law. She has followed human rights-​related trials in Guatemala for many years, and attended the Ríos Montt trial. She was a member of the legal team that brought the genocide case to the courts of Spain. Jeremy Julian Sarkin  is Distinguished Visiting Professor of Law and member of CEDIS at NOVA University, Lisbon, Portugal, and a Research Fellow at the University of the Free State, South Africa. He is admitted to practice as attorney in the United States and South Africa. He was Chairperson-​Rapporteur of the United Nations Working Group on Enforced or Involuntary Disappearances. He served as an acting judge in the High Court in South Africa. He is a member of a number of journal editorial boards. He has published eighteen books and more than 350 articles and book chapters. Kim Thuy Seelinger  is Research Associate Professor at the Brown School of Social Work, Public Health and Social Policy at Washington University in St. Louis, where she also serves as Visiting Professor at the School of Law and inaugural Director of the Center for Human

xx   List Of Contributors Rights, Gender and Migration. She focuses on accountability for, and protection from, sexual violence in armed conflict and forced displacement. Previously, she was a Lecturer in Law and founding director of the Sexual Violence Program at the Human Rights Center, University of California, Berkeley School of Law (2010–​2019). In 2021 Seelinger was appointed by the Office of the Prosecutor of the International Criminal Court to serve as Special Adviser on Sexual Violence in Conflict. Alette Smeulers  is Professor of Criminal Law and Criminology of International Crimes at the University of Groningen in the Netherlands. In her research, she focuses on the causes of mass atrocities, the perpetrators of mass atrocities, and the criminal prosecution of mass atrocities. Scott Straus is Professor of Political Science at the University of California, Berkeley, co-​editor of Violence: An International Journal, and author of several books on genocide and political violence. David Tolbert  is Registrar (United Nations Assistant Secretary-​General) of the Special Tribunal for Lebanon. He previously was Ford Foundation Fellow and Visiting Scholar, Duke University, Sanford School of Public Policy. From 2010 to 2018, he served as President of the International Center for Transitional Justice (ICTJ). He also held the following positions: Assistant Secretary-​General and Special Expert to the UN Secretary-​General on the Khmer Rouge trials; Deputy Prosecutor, Deputy Registrar, Chef de Cabinet to the President, International Criminal Tribunal for the former Yugoslavia (ICTY); Executive Director, ABA-​CEELI; Chief, General Legal Division, UNRWA. He is the author of over 40 scholarly articles as well as other publications on, e.g., human rights, international criminal justice, rule of law, transitional justice. Uğur Ümit Üngör  is Professor at the NIOD Institute for War, Holocaust, and Genocide Studies in Amsterdam, the Netherlands. His main area of interest is the historical sociology of mass violence. He is an editor of the Journal of Perpetrator Research, coordinator of the Syria Oral History Project, and the author of five books, including Paramilitarism: Mass Violence in the Shadow of the State (Oxford University Press, 2020). Annika van Baar  is Assistant Professor at Vrije Universiteit Amsterdam, the Netherlands. Her research focuses on how corporations become involved in international crimes and human rights violations, and the effects of formal and societal reactions to such involvement. Daan P. van Uhm  is Assistant Professor in Criminology at the Willem Pompe Institute for Criminal Law and Criminology, Utrecht University, the Netherlands. He conducted research on various forms of environmental crime, such as transnational wildlife trafficking, deforestation and timber trade in Southeast Asia, illegal mining in Latin America, and the illegal trade in dogs in Europe. Van Uhm primarily focuses on research in the context of green crimes and harms. Anaïs Cadieux Van Vliet  holds a Masters of Social Work from McGill University, where she works as a research assistant. Her front-​line work has centered on supporting populations affected by systemic oppressions as well as state and sexual violence, with a focus on street-​ involved and queer youth, both locally and internationally.

List Of Contributors    xxi Joris van Wijk  is Associate Professor in Criminology at Vrije Universiteit Amsterdam, the Netherlands. He co-​directed the Center for International Criminal Justice (CICJ) and directs the Master’s program International Crimes, Conflict, and Criminology. Maartje Weerdesteijn is Assistant Professor at the Department of Criminology at Vrije Universiteit Amsterdam, the Netherlands, and a Research Fellow at the Center for International Criminal Justice. Stephanie Wolfe  is Associate Professor of Political Science at Weber State University. She holds a Ph.D. from the University of Kent and is the author of The Politics of Reparations and Apologies (Springer, 2014). Elisabeth Jean Wood  is Crosby Professor of the Human Environment and Professor of Political Science, International, and Area Studies at Yale University. She is currently writing a book on sexual violence during war. Among her recent articles are “Rape as a Practice of War: Towards a Typology of Political Violence” and “The Persistence of Sexual Assault within the US Military.”

INTRODU C T I ON

Atrocity Crimes and Atrocity Studies Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn My first baby, Sama. Her name is meaning “the sky.” Sky we love, sky we want. Without air forces; without bombing. Sky with sun, with clouds, with birds. [...]

Sama, I know you understand what’s happening; I can see it in your eyes. You never cry like a normal baby would. That’s what breaks my heart. [...] Sama. You’re the most beautiful thing in our life. But what a life I’ve brought you into. You didn’t choose this. Will you ever forgive me?1

The 2019 documentary For Sama is a powerful and intimate account of life in the context of atrocity. Filmed as a love letter from a mother to her newborn daughter, Sama, Waad al-​Kateab documented her life during the five years that the city of Aleppo—​one of the theaters of the Syrian war—​was under siege. Against the backdrop of extreme violence and destruction, Waad, a journalism student, falls in love, gets married, gives birth, and is ultimately forced to flee the carnage and constant insecurity. Together with her family, she leaves her beloved country. Her camera consequently captures the lived reality of atrocity crime, as well as the choiceless choices of individuals who bear the brunt of these crimes. It is on the one hand a story of mass destruction, tragic loss, trauma, and the inhumanity of atrocities; on the other hand, this documentary shows survival, laughter, love, resilience, and the humanity of those living through atrocity crimes. 1  Quotes from Waad al-​ Kateab and Edward Watts (2019), For Sama. Documentary. Produced by Channel 4 News/​ITN Production for Channel 4 and Frontline PBS. More information available here: https://​www.forsamafilm.com (accessed: March 18, 2020).

2    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn The war in Syria—​which had led to an estimated 511,000 deaths, 6.6 million internally displaced people, and 5.6 million refugees by the end of 20192—​is but one of the many contemporary scenes of atrocity crime. In the 20th century alone, mass atrocities and collective violence cost over 200 million lives, with hundreds of millions more injured and traumatized (Savelsberg, 2010). As daunting as these numbers are, they also cannot fully capture the myriad impacts on communities and cultures, rendering the full scale of harm of atrocities beyond comprehension. Despite the repeated mantra of “never again,” early warning systems, agreements to protect populations, and efforts to hold perpetrators accountable, such violence occurs again and again.

1.  Atrocity Crimes: “What’s in a Name?” Researchers have variously referred to serious, large-​scale, collective, and organized acts of violence committed against civilians as mass killings, (categorical) mass violence, conflict-​ related crimes, gross human rights violations, crimes of the powerful, massacres, complex (humanitarian) emergencies, organized crime, or international crimes. Legally, such violent acts could be classified, alternatively or simultaneously, as war crimes, crimes against humanity, or genocide—​“the most serious crimes of concern to the international community as a whole.”3 Collectively, such crimes are also known as atrocity crimes. Atrocity crimes as a concept and as a term entered the vernacular in 2006. David Scheffer, the former U.S. Ambassador-​at-​Large for War Crimes, introduced the umbrella term “to enable public and academic discourse to describe genocide, crimes against humanity (including ethnic cleansing), and war crimes with a single term that is easily understood by the public and accurately reflects the magnitude and character of the crimes” (Scheffer, 2006, p. 230). Scheffer sought to rid the (often stalemated) political discussions among governmental representatives, policy makers, and diplomats of the emotively and legally charged debates about the classification of violent acts as genocide. The “genocide label,” according to Scheffer, had become insufficient, and at times counterproductive, as it is too narrow and politically controversial due to possible legal ramifications and state obligations “to

2  Human Rights Watch (2019). World Report 2019: Syria—​ Events of 2018. Available here: https://​ www.hrw.org/​world-​report/​2019/​country-​chapters/​syria (accessed: March 18, 2020). 3  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute), Preamble. The international prosecutions and trials of perpetrators of what we here refer to as “atrocity crimes” were first undertaken after the Second World War, when Allies held to account the leaders of Nazi Germany and Japan in the International Military Tribunals in Nuremberg and Tokyo. In the 1990s and early 2000s, many international(ized) criminal courts and tribunals dealing with specific situations of mass atrocities were established, such as the International Criminal Tribunal for the former Yugoslavia (Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted May 25, 1995) UNSC Res 827(1993), as amended (ICTY Statute), the International Criminal Tribunal for Rwanda (Statute of the International Criminal Tribunal for Rwanda (adopted November 8, 1994) UNSC Res 955(1994), as amended (ICTR Statute), or the Special Court for Sierra Leone (Statute of the Special Court for Sierra Leone (adopted January 16, 2002) pursuant to UNSC Res 1315(2000) (SCSL Statute).

INTRODUCTION   3 prevent and punish” the acts of genocide4 (Scheffer, 2006, p. 230). The main idea was to enable policy makers, diplomats, and others to label serious violence as “atrocity crimes meriting timely and effective responses in political, military, and judicial terms” (Scheffer, 2006, p. 237). According to Scheffer, the term atrocity crimes would facilitate discussions and public outreach, rid them of unnecessary technicalities, and more accurately describe the totality of crimes—​ultimately enabling effective prevention and intervention while sending a clear moral message of condemnation (Scheffer, 2006, p. 238). In addition to referring to legal definitions in the statutes and case law of international criminal courts and tribunals, Scheffer delimited the crimes as “high-​impact crimes of severe gravity that are of an orchestrated character, that shock the conscience of humankind, that result in a significant number of victims, and that one would expect the international media and the international community to focus on as meriting an international response holding the lead perpetrators accountable before a competent court of law” (Scheffer, 2006, p. 239). In academia, Scheffer’s proposal attracted support (e.g., Schabas, 2007; 2016; Bazyler, 2007; Mennecke, 2007; Karstedt, 2013) as well as criticism (e.g., Akhavan, 2007; Levene, 2007, Minow, 2007). In practice, the term has been widely adopted by the United Nations, which in 2014 published its “Framework for Analysis of Atrocity Crimes.”5 According to the Framework (p. 1), “the term ‘atrocity crimes’ refers to three legally defined international crimes: genocide, crimes against humanity and war crimes,” as stipulated in international treaties and conventions, including the Rome Statute of the International Criminal Court. We believe that atrocity crime—​as a term and a concept—​can be useful not only for prevention, intervention, and public outreach, but also as an analytical category above and beyond the legal categories of genocide, crimes against humanity, or war crimes. This Handbook consequently focuses on atrocity crimes, which contributing authors also label as “atrocities” and “mass atrocities” at varying times. Atrocity crime delimits criminality, which is varied in its manifestations but nonetheless is unified by its fundamental underlying characteristics. Atrocity crime is large-​scale and systematic—​extraordinary—​criminality committed within specific political, ideological, and societal contexts. Individual violent acts are perpetrated in the context of other grave, widespread, or systematic crimes. They are committed by a multiplicity of actors against a multiplicity of victims who suffer far-​ reaching consequences.6 Atrocity crimes are, therefore, not isolated incidents perpetrated against the social norms of a respective society or group. Their perpetration is rather often dictated by those norms, and there can be enormous pressure on individuals to participate (Woolf, Hulsizer, 2005, p. 110). Not participating can mean risking condemnation or physical violence (Alvarez, 2001, p. 129), but participating often means reinforcing those norms in powerful ways. As such, the violent acts contribute to the context, while the context contributes to the violent acts of the individual. Because the individual crimes are part of 4  Convention

on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention). 5 United Nations (2015) General Assembly: Report of the Secretary General. New York. A/​ 70/​1. Available at: https://​www.un.org/​en/​genocideprevention/​documents/​about-​us/​Doc.3_​Framework%20 of%20Analysis%20for%20Atrocity%20Crimes_​EN.pdf (accessed: March 18, 2020). 6  See also Chetham (2020), who argues that three elements clearly distinguish atrocity crimes: (i) their scale; (ii) their systematicity; and (iii) the gravity of the harms.

4    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn a larger, organized, and violent attack, they become more than the sum of their parts. The context transforms the nature of the acts: from rape to a war crime, from murder to genocide. The violent acts that comprise atrocity crimes, therefore, take place against and within a violent context that is both constituted by and constitutive of such actions. Accordingly, these crimes typically occur during armed conflicts, large-​scale repression, or violent societal campaigns. Not all violence in such contexts is necessarily criminalized, though. For example, during armed conflicts, certain killings under specified conditions (of enemy soldiers, for example) are legal. However, irrespective of the (il)legality and criminality of individual violent acts, the violent contexts are determinative and sine qua non of atrocity. In fact, according to Straus (2016, p. 26), the violent context is what lies at the core of the conceptualization of mass atrocities as “large-​scale, systematic (extensive, organized, widespread, sustained) violence against civilians and other noncombatants.” It is this intimate and necessary interrelation between the violent milieus and individual acts of atrocity that differentiates atrocity crimes from other types of criminality. Despite the conceptual similarities of genocide, crimes against humanity, and war crimes, which warrant the grouping of atrocities under one label, we also believe that it is necessary and merited to disaggregate atrocities into categories for research and teaching purposes, though we recognize that the boundaries around such categories are often blurry. Atrocity crimes are constituted by diverse acts of violence, with varied purposes, motivations, dynamics, and consequences. Some are group-​selective, some are not. In much the same way, some are group-​destructive, while others are not (Straus, 2016). The act of killing, for example, can simultaneously constitute genocide, a crime against humanity, and a war crime. Yet, it can also be only one or the other, depending on the context and the purpose of the act, and we thus turn to a brief examination of such distinctions.

1.1. Genocide Genocide is a group-​selective and group-​destructive mass atrocity. Raphael Lemkin coined the term during the 1940s to encapsulate “the destruction of a nation or of an ethnic group” (Lemkin, 1944, p. 79). Several years later, the United Nations adopted the international legal definition of genocide in the 1948 Genocide Convention, which has subsequently been used in the statutes of international criminal courts and tribunals, such as the ICTY, ICTR, and the ICC.7 According to the Convention, genocide involves killing, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life to bring about its physical destruction, imposing measures intended to prevent births and/​or forcibly transferring children “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”8 Genocide can be committed in both times of war and times of peace, and case law of the international criminal courts and tribunals has interpreted the prohibited acts to also include other forms of violence, such as sexualized violence.9

7 

Rome Statute, art 6; ICTY Statute, art 4; ICTR Statute, art 2. Genocide Convention, art II. 9 Case Akayesu (Trial Judgment) ICTR-​96-​4 (September 2, 1998). 8 

INTRODUCTION   5

1.2. Crimes against humanity Although often perpetrated against a vulnerable or marginalized group, crimes against humanity are per definition neither a group-​selective nor a group-​destructive form of mass atrocities.10 They are violent acts “committed in the context of widespread or systematic attack against any civilian population” (emphasis added).11 Coined in the context of the Belgian King Leopold II’s atrocities in Congo Free State (Washington Williams cited in Franklin, 1998), crimes against humanity are understood to encompass violent acts offending our “value of humanness” (Luban, 2004). Unlike genocide and war crimes (addressed in the next section), there is no convention on crimes against humanity.12 Furthermore, crimes against humanity can be committed in the absence of armed conflict (Schabas and Bernaz, 2011). Actions that can constitute crimes against humanity are multifaceted and include murder, extermination, enslavement, deportation, identity-​ based persecution, forcible transfer of populations, torture, various forms of sexual violence, enforced disappearance, and apartheid.13

1.2. War crimes In contrast to genocide and crimes against humanity, war crimes are, as the name suggests, prohibited acts committed during an international or internal armed conflict. They are regulated by international humanitarian law and codified in the Hague and Geneva Conventions.14 The connection to warfare and armed hostilities is thus the defining feature of war crimes. They are not necessarily a group-​selective or a group-​destructive form of atrocity. As such, war crimes encompass a large variety of acts and prohibited conducts (e.g., the Rome Statute lists 50 specific offenses),15 ranging from attacking civilian property and using prohibited means of warfare to conscripting and using child soldiers, killing civilians, and committing sexualized violence. In juxtaposition to crimes against humanity, war crimes can be isolated acts or conducts prohibited by international humanitarian law. The violent context, which distinguishes murder as a war crime from murder as a crime

10 Certain forms of crimes against humanity, however, entail a discriminatory, group-​ selective element, such as persecution or the crime of apartheid. 11  Rome Statute, art. 7, ICTY Statute, art 5, ICTR Statute, art 3. 12  Debates on creating such a treaty have been ongoing for several years (Sadat, 2011). 13  Rome Statute, art. 7. 14  See, for example, the Convention Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted October 18, 1907, entered into force January 26, 1910) (Hague Convention); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287. 15  Rome Statute, art 8.

6    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn committed in peace time, is the violence related to the armed conflict/​war, which is not criminalized.

1.3. Ethnic cleansing and the crime of aggression Lastly, we need to consider ethnic cleansing and the crime of aggression. Even though our attention is dedicated to the three main categories of atrocity crimes listed earlier, the overview would be incomplete without a brief mention of these two forms of violence as well. Ethnic cleansing is not listed in any of the international criminal statutes; however, it is mentioned in the UN Atrocity Crimes Framework. The term refers to “acts that are serious violations of international human rights and humanitarian law that may themselves amount to one of the recognized atrocity crimes, in particular crimes against humanity.”16 Ethnic cleansing refers to the forced removal and relocation of an ethnic group from a territory and is thus a form of group-​selective violence. The term was first used at the international level to describe the violence during the 1990s in the former Yugoslavia. The term is a literal translation from the Serb/​Croatian or Croat/​Serbian etničko čišćenje, which was, according to Petrovic (1994), employed by military officers in the former Yugoslav People’s Army to describe the aim of gaining total control over a particular area—​“to clean the territory” of the enemies (Petrovic, 1994, p. 2). The phrase gained notoriety because it was swiftly adopted by journalists and politicians who also used it to describe similar violence in other countries (Petrovic, 1994, p. 1). Today, ethnic cleaning is not legally recognized as a crime, though politicians, journalists, and some academics continue to employ the term. Last but not least, the crime of aggression—​formerly described as crimes against peace—​ constitutes the fourth category of crimes listed in the Rome Statute. Aggression refers to unjustified initiation of armed conflict by a state against another state.17 Despite its original status as “the supreme crime” after World War II, Moyn (2020, p. 341) suggests that, “international criminal law has exclusively focused on accountability for atrocity [i.e. war crimes, crimes against humanity, and genocide]” since the 1990s. Indeed, while the ICC retains jurisdiction over the crime of aggression, its definition was not originally included in the Rome Statute. Instead, in 2010, state parties to the Rome Statute adopted the so-​called Kampala Amendment which defined the crime and outlined conditions under which the ICC can exercise jurisdiction. The article prohibiting aggression in the ICC Statute entered into force in July 2018, which is also the starting date the ICC could prosecute the crime. As such, the crime of aggression has yet to receive much scholarly attention, in particular from social scientists, and we accordingly do not consider it in this Handbook. Instead, we focus on war crimes, crimes against humanity, and genocide, which have been extensively studied in the social sciences, humanities, and law.

16  17 

UN Atrocity Crimes Framework, 2014, p. 1. Rome Statute, art. 8 bis.

INTRODUCTION   7

2.  The Field: The Scattered Universe of Atrocity Studies Scholars studying mass atrocities are scattered not only across a large variety of disciplines—​ such as international (criminal) law, international relations, criminology, political science, psychology, sociology, history, anthropology, and demography—​but also across the topic-​ related fields, which are by definition multi-​and interdisciplinary but are typically limited to a particular category or aspect of atrocity crimes. These include genocide studies (Bloxham and Moses, 2010), conflict studies with their focus on armed conflicts and post-​ conflict reconstruction and peace building (Tropp, 2012), perpetrator studies (Smeulers et al., 2019), the growing field of transitional justice that studies post-​atrocity justice and reconciliation (Lawther et al., 2017), and international criminal justice (Heller et al., 2020). Therefore, atrocities are generally studied in disciplinary or “topical” silos, and there is a lack of exchange, dialogue, and integration of the vast knowledge gleaned over the past decades on the causes, dynamics, and consequences of each category of atrocity crimes. Scholarship on atrocity crimes is spread over numerous (inter)disciplinary journals and books, and (to our knowledge) a comprehensive volume that addresses and compares the three main categories of atrocity crimes—​and covers and connects the breadth and depth of the existing scholarship—​did not exist prior to this one. Though this Handbook integrates literature from all of the aforementioned disciplines and topic-​related fields, it retains a special emphasis on criminology. Criminology is an interdisciplinary area of inquiry centered on a single, unifying phenomenon: crime. As such, we suggest that criminology offers a particularly powerful lens for synthesizing scholarship on atrocity crime. Indeed, criminologists are not newcomers to the study of atrocity crimes. Most notably, Sheldon Glueck, who is prominently recognized for his criminal careers research with Eleanor Glueck, played an instrumental role in the International Military Tribunal at Nuremberg (Hagan and Rymond-​Richmond, 2009). Prior to the Tribunal’s creation, Glueck (1945) had published War Criminals: Their Prosecution and Punishment, which presented a plan for prosecuting war crimes committed during World War II. Partly due to this plan, Glueck was selected to advise Justice Robert H. Jackson, the Chief United States Prosecutor at Nuremberg. Jackson and the other prosecutors drew heavily from Glueck’s ideas, and Glueck also helped develop a system to catalog evidence. When the Tribunal closed, Glueck noted that, “[f]‌or the first time in history, a distinguished panel of judges . . . has solemnly declared that there is such an offense as a crime against the peace of the world.”18 Social-​scientific research focusing on mass atrocities was given a new impetus after the end of the Cold War in the 1990s. Mass violence in the former Yugoslavia, as well as in Rwanda, sparked new research initiatives in numerous disciplines. Vast jurisprudential

18  Harvard Crimson (1946) “Glueck Declares Nuremberg Trial Triumph of Law.” Available at: http://​ www.thecrimson.com/​article/​1946/​10/​2/​glueck-​declares-​nuremberg-​trial-​triumph-​of/​(accessed: March 18, 2020).

8    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn developments at the various international courts and tribunals, such as those pertaining to the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia, or at the International Criminal Court—​as well as the treasure trove of documents these courts have created—​ added a further impetus for researchers to strive toward a better understanding of these crimes. These developments have also been reflected in the establishment of supranational criminology as a sub-​field of criminological inquiry specifically focusing on atrocity crimes or one of their constitutive categories (Smeulers and Haveman, 2008; Alvarez, 2009; Brannigan, 2013; Bantekas and Mylonaki, 2014; Barak, 2015; Rafter, 2016; Jones, 2017), as well as its sub-​area of inquiry emphasizing the victimology of atrocity (Letschert et al., 2011; Bonacker and Safferling, 2013). Therefore, research on atrocity crime has grown exponentially since the 1990s, albeit oftentimes developing in parallel tracks along traditional disciplinary divides or topic-​limited fields. This Handbook attempts to bridge these divides and boundaries, and at the same time nuance the discussions by purposefully interrogating possible differences among the individual categories of atrocity crimes. Essentially, it provides a comprehensive, multi-​and interdisciplinary overview of research related to atrocity crime.

3.  The Handbook: Oxford Handbook on Atrocity Crimes This Handbook, therefore, brings together the largely scattered scholarship on (mass) atrocities and interrogates atrocity crimes as an overarching category of criminality, while simultaneously keeping an eye on differences among the individual constitutive categories. We asked each contributor to reflect on the possible differences and similarities among the three main categories of atrocity crimes and, in doing so, to critically engage and identify gaps in our collective understanding of mass atrocities as an overarching concept. We hope this endeavor consequently pushes the boundaries of existing knowledge and provokes scholarly imaginations. The structure of the Handbook is guided by general areas of traditional criminological inquiry and consists of six interrelated parts: 1) Atrocity Crimes; 2) Etiology and Causes of Atrocity Crimes; 3) Actors in Atrocity Crimes; 4) Harm and Victims of Atrocity Crimes; 5) Reactions to Atrocity Crimes; and 6) Selected Case Studies. In each part, leading authorities on selected topics provide a concise review of theoretical and empirical research and suggest new areas for scholarship. Each topical chapter thus synthesizes current theory and findings and highlights cutting-​edge scholarship while simultaneously identifying gaps in existing knowledge and providing suggestions for future work. Even though we would have loved to provide an exhaustive account of all aspects of atrocity crimes, it is clearly impossible in one volume. Therefore, we sought to cover wide-​ranging issues we considered the most salient and relevant in existing scholarly discussions and in the broader quest to understand atrocity crimes. Each chapter can be read on its own, as each will provide the reader with a unique synthesis of a particular topic and with new insights. However, if readers take the time to read all of the chapters, they will uncover the rich and complex universe of our existing, ever-​growing knowledge on these “unimaginable” crimes. We as editors have had the

INTRODUCTION   9 privilege of taking that “journey” and can highly recommend everyone to follow suit. In the following paragraphs, we offer a brief roadmap across the individual chapters.

3.1. PART I—​Atrocity crimes The Handbook begins with a general overview of the foundations of research on atrocity crime. Chapter 1, written by Jeremy Kuperberg and John Hagan, addresses the meaning and development of relevant terminology and considers problems of delimitation with regard to the different categories of atrocity crimes. Kuperberg and Hagan focus on the actors responsible for the conceptual inception and development of the three types of atrocity crimes and trace the past and ongoing definitional discussions in legal and social-​scientific scholarship. Surveying legal practices at international criminal courts and tribunals, they identify two realms in which boundaries between the three categories have frequently been contested and porous: (i) group identity and (ii) sexual violence. Kuperberg and Hagan then turn their attention to terminological debates in social-​scientific scholarship and address attempts to emancipate analytical categories and terminology from a straitjacket of strictly delimited legal definitions. According to Kuperberg and Hagan, “[t]‌ranscending mere semantics, both past and present conceptual innovations [such as the concept of atrocity crimes] are intended to have significant consequences in law, politics, and scholarship alike.” In Chapter 2, Catrien Bijleveld turns readers’ attention to the various methods and methodologies social scientists use to collect information about and analyze atrocity crimes. Focusing on empirical research and using a criminological lens, Bijleveld discusses how researching atrocities is mired with extra difficulties and challenges. She argues that the crimes, the context in which they are committed, and their aftermath generate a particular constellation of factors in which necessary methods/​methodologies may differ from those that are standard within the social sciences. Specifically, Bijleveld identifies four main characteristics that make researching atrocity crimes different from researching other types of crime: (i) their scale; (ii) contexts in which atrocity crimes are committed; (iii) the dangerous circumstances in which empirical data on atrocity crimes are commonly collected; and, finally, (iv) the fact that atrocity crimes are relatively rare occurrences taking place in unique and idiosyncratic contextual constellations, which makes it difficult to make any casual inferences according to regular social science methodological standards. Bijleveld concludes with an urgent call for cross-​disciplinary standardization of methodologies to study atrocities and “understand these incomprehensible crimes and their pervasive consequences.” In the final chapter of the first part of the Handbook, Mark A. Drumbl critically reflects on his previous work and the claim that genocide, crimes against humanity, and war crimes are fundamentally different from more common types of crimes. What makes this criminality distinct from a street robbery, an isolated murder, or a single rape committed in a relatively peaceful domestic context? Drumbl identifies one feature—​collectivization—​that he argues makes atrocities categorically different from common crime. Focusing on a subset of atrocity crimes—​what he calls extraordinary international crimes, which are per definition committed by groups against groups—​Drumbl advances two interconnected theoretical claims: (i) extraordinary international crimes are group crimes characterized more by collective obedience than individual transgression; and (ii) nonetheless, individualized

10    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn criminal trials, premised on addressing deviant and pathological conduct, have prevailed as the first-​best, though ill-​fitting, form of accountability for such collective criminality. Drawing upon vignettes of atrocity crime participants and their trials from around the globe, Drumbl engages with critics who have challenged his theoretical claims and introduces his new source of “vexation when it comes to the hydraulics and pneumatics of collective atrocity: the phenomenon [he] tentatively call[s]‌the banality of opportunism.”

3.2. PART II—​Etiology and causes of atrocity crimes Part II of the Handbook provides the reader with recent theoretical and empirical research striving to explain atrocity crimes. We purposefully selected authors from different disciplinary backgrounds—​such as political science, genocide and conflict studies, law, international relations, and criminology—​to discuss how atrocity crimes are related to a variety of factors, such as armed conflict, natural resources, the type of regime, and ideology. We asked each author to explicitly reflect on different categories of atrocity crimes and address the extent to which different mechanisms and theories can help to explain each. The fact that each of the contributors has used diverse methodological approaches to explain atrocities and their social contexts in their previous research—​such as negative case studies, comparative case studies, interviews, and large-​N quantitative modeling—​also brings a rich variety of perspectives regarding why atrocity crimes happen. In Chapter 4, Barbara Harff provides a personal recollection of the beginnings of risk assessment and early warning models, as well as of her role at the inception of this now burgeoning field of research. Harff takes the reader back to the early 1990s, when she worked via the U.S. State Failure Task Force to pave the way for risk assessment efforts and predictive modeling of political instabilities and state failures around the globe. Harff was the only genocide scholar on the Task Force and, consequently, was the only member who had engaged in empirical modeling of genocides and politicides. Prior to her pioneering work based on large-​N quantitative modeling and the development of typologies of genocides, genocide studies had largely been a qualitatively-​oriented field focused on individual case studies. In her chapter, Harff thus recounts her groundbreaking early studies and discusses her later research in developing early warning and risk assessments. In Chapter 5, Melanie O’Brien takes a legal, human rights perspective to analyze atrocity crimes. O’Brien notes that, in practice, behavior that is categorized as atrocity crimes (war crimes, genocide, and crimes against humanity) can also simultaneously be categorized as human rights violations. However, this interaction and overlap is rarely explicitly acknowledged, and the two legal regimes—​international criminal law and human rights law—​operate largely in isolation. O’Brien consequently examines the relationship between human rights and atrocity crimes, considering protection of human rights as a means of atrocity prevention. She pinpoints the relationship of each category of atrocity crime with human rights and identifies the importance of the human rights law regime in times of atrocity. Overall, according to O’Brien, there is a need for those addressing atrocity crimes to further engage with the human rights regime, from prevention to accountability. She concludes that “rather than occlude the relationship between atrocities and human rights, we need to bring them closer together, in scholarship and in praxis, to create a symbiotic and reified system of prevention and accountability.”

INTRODUCTION   11 Jolle Demmers highlights the connection between armed conflicts, atrocity crimes, and group-​making in Chapter 6. She approaches atrocities as a particular repertoire of collective violence, be it structural, manifest, or performative. Specifically, she highlights the changing conflict landscapes characterized by the post–​World War II shift from classic interstate wars to intrastate violent conflicts. These “new wars” are fought between states and local actors such as rebel groups, paramilitaries, guerrillas, and insurgents over the governance of the population, resources, and territory. Civilians are thus placed at the heart of violent conflict in the world today, as both a target and a constituency. As such, Demmers suggests that in answering the key questions of how and why atrocities happen, one needs to examine the connection between social boundary drawing and violence from the three interrelated perspectives of (i) the entrepreneurs of violence, (ii) the alliances that help execute and sustain the violence, and (iii) the frames through which violence is legitimated and deemed necessary or inevitable. Chapter 7, written by Kieran Mitton, provides a comprehensive review of research focusing on natural resources, conflict, violence, and atrocities. Mitton synthesizes and critically interrogates existing insights on the topic, which stem from a broad variety of disciplines and employ diverse methodological approaches. Mitton cautions, however, that this diversification has led to disciplinary silos and has regularly obstructed collaboration and exchange between different fields. Synthesizing these varied approaches, he then examines the role of natural resources in violence and atrocity crimes through two broad areas of focus: resource scarcity and resource abundance. In doing so, Mitton provides an overview and critical reflection of key thematic debates linking resources, conflict, and atrocities, from the early eighteenth-​century Malthusian concerns over demographic pressures to more recent emphases on climate change and urbanization. Based on his comprehensive survey, Mitton concludes that “the overwhelming focus of much of this scholarship has been upon the causes and dynamics of conflict, and there is need and potential for much greater investigation of the specific relationship of natural resources to atrocity crimes.” In Chapter 8, Maartje Weerdesteijn explores scholarship addressing the connection between regime type and atrocity crimes. Similar to Mitton, Weerdesteijn notes how disciplinary and methodological silos have hampered constructive exchange among scholars studying the relationship between democracies, dictatorial regimes, and atrocities. In her chapter, Weerdesteijn provides a vital step in such cross-​disciplinary dialogue and synthesizes the existing empirical research on the relationship between regime type and atrocity crimes. She critically addresses the consensus among scholars that established democracies are least likely to perpetrate mass atrocities. In order to understand why dictatorial regimes are more likely to perpetrate mass atrocities, Weerdesteijn then proposes a qualitative analysis that links regime type to other known risk factors for mass atrocities. Jonathan Leader Maynard turns a lens toward the role of ideologies, identities, and speech in atrocity crimes in Chapter 9. While many scholars have strongly emphasized how radical ideologies, antagonistic identities, and extreme speech can encourage atrocity crimes, others dispute the centrality of such factors, preferring to focus on conflict dynamics, local intracommunal politics, and material self-​interest. Leader Maynard provides an overview of these interdisciplinary, and somewhat fragmented, debates. Specifically, he maps out three broad perspectives on the role of ideology, identity, and speech in atrocity crimes: (i) traditional, (ii) skeptical, and (iii) revisionist. In contrast to existing research, Leader Maynard argues that ideologies, identities, and speech need to be understood as

12    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn deeply interdependent and therefore studied in tandem, suggesting possible differences in the role of ideology, identity, and speech across different categories of atrocity crimes. Leader Maynard then identifies two key theoretical puzzles in need of further research: first, what forms of ideology, identity, and speech carry the greatest danger of promoting atrocity crimes; and second, what underlying factors of ideologies, identities, and speech explain radicalization toward atrocity crimes. Chapter 10, written by Rachel Jacobs and Scott Straus, shifts toward meso-​level dynamics of atrocity crimes, which scholars largely neglected prior to recent years. The authors argue that examining meso-​level dynamics facilitates a more granular understanding of mass atrocities, as meso-​level actors shape how, where, when, and at what scale atrocity crimes take place. Jacobs and Straus offer three pathways through which meso-​level authorities and players can escalate, or restrain, violence: (i) top-​down policies of violence that meso-​level actors put into place; (ii) from-​the-​middle dynamics of violence where meso-​level actors escalate violence for their own independent interests; and (iii) information distortions by meso-​level actors about the progress of national policies that lead to deaths. They illustrate these different pathways via three case studies of atrocity crimes: genocide in Rwanda in 1994; genocide in Darfur, Sudan, in 2003–​2005; and Communist mass atrocities—​the Khmer Rouge’s “super great leap forward” in Cambodia in 1975–​1979. Chapter 11, written by Susanne Karstedt, continues the focus on the meso-​level and centers on a relatively neglected subset of atrocity crimes—​illegal detention, torture, and enforced disappearances. Karstedt demonstrates how these crimes are committed in recurring patterns across diverse atrocity contexts by what she calls “atrocious organizations.” In such organizations, atrocities become an established part of organizational targets, strategies, routines, and managerial performance. Police and security forces are main actors in a network of atrocious organizations that also often include military and paramilitary units. Specifically, Karstedt identifies three processes decisive in the transformation from ordinary to atrocious organizations: politicization (ethno-​politicization), de-​ professionalization, and militarization. She uses evidence stemming from the Holocaust, violence in the former Yugoslavia, repressive regimes in Latin America, and conflicts in Asia to identify common characteristics of atrocious organizations and their crimes.

3.3. PART III—​Actors in atrocity crimes Parts III and IV of the Handbook turn the reader’s attention away from general discussions on the causes and etiology of atrocities toward the actors involved in atrocity crimes. In great detail, the chapters of this section address a diverse set of players represented in the so-​called atrocity triangle—​perpetrators, victims, and bystanders. Part III identifies the various roles individuals, organizations, and states play in committing, facilitating, or resisting atrocity crimes. Specific attention is paid to the fact that the roles individuals play in mass atrocities are hardly ever static and shift over time and place, complicating the notion of mutually exclusive sides of a triangle. This complication is particularly highlighted in the chapter on child soldiers, who are the embodiment of the overlap between those who commit violence and those who bear the brunt of it. Chapter 12, written by Alette Smeulers, discusses individuals as perpetrators of atrocity crimes and provides an overview of the field of perpetrator studies. Smeulers not only traces

INTRODUCTION   13 the historical origins of this inter-​and multidisciplinary field of study but also summarizes its main findings, as well as the current state of the research. She outlines core debates in perpetrator studies and pinpoints crucial questions and dilemmas that remain. According to Smeulers, it is important to recognize that most perpetrators are ordinary human beings in extraordinary circumstances, and many commit atrocities by obeying their superiors and conforming to others. This chapter, however, also notes the diversity among perpetrators, highlighting that many different reasons can influence involvement in mass atrocities. Smeulers concludes by emphasizing that human behavior is extremely complex and at times difficult to understand; yet, research on perpetrators must still be undertaken, as knowledge is the only thing that might help stop perpetrators and ultimately prevent atrocity crimes. In Chapter 13, Roland Moerland also discusses the role of individuals in atrocity crimes but shifts attention to those who more or less passively stand by when atrocities are being committed. Moerland takes a bird’s-​eye perspective and provides a comprehensive overview of existing bystander research. After tackling definitional issues, he discusses what role individual bystanders play in atrocity crimes and proposes a “bystander continuum” that reflects differences in bystanders’ behavior and its implications relative to victims and perpetrators. Moerland then addresses the complexities of role-​shifting in mass atrocities, noting that the boundaries between the categories of perpetrator, victim, and bystander are porous rather than fixed. He discusses different types of bystanders and elaborates on how individuals become bystanders given the social and psychological features of atrocity situations. According to Moerland, bystander passivity has crime enabling and facilitative implications. It is thus far from innocent and raises questions about moral and legal responsibility. Erin Jessee’s Chapter 14 also interrogates the utility of strictly delimited, hermetically sealed, analytical categories for studying individuals’ roles in atrocity crimes. Jessee emphasizes the complexity of peoples’ behaviors and experiences during mass atrocities and critically interrogates simplistic binaries of victims/​survivors and perpetrators that proliferate in the media and other public discourses about mass atrocities. Drawing on her own ethnographic fieldwork conducted for over a decade in post-​genocide Rwanda, Jessee argues that most peoples’ experiences of mass atrocities are more multifaceted than this categorization permits. She instead proposes a category of “complex political actors,” which provides a starting point for analyzing the full spectrum of peoples’ actions during mass atrocities. According to Jessee, this flexible and dynamic framing allows for better understanding of the shifting roles that people take on in response to changes in their nation’s political climate and personal circumstances before, during, and after atrocity crimes. Chapter 15, written by Myriam Denov and Anaïs Cadieux Van Vliet, complements the previous chapter by discussing one such complex political actor in atrocity crimes: child soldiers. In their chapter, Denov and Cadieux Van Vliet assess the evolution of the legal definition of the child soldier while reflecting on the fact that complexities of involvement of young people in armed conflict are hard to capture in any nomenclature. They outline the development of international legal instruments aimed at preventing the use of children in armed conflict and note that despite the ambitions of lawyers and policy makers, children across the globe continue to be implicated in armed conflict. Based on existing empirical research, they then discuss on-​the-​ground realities of child soldiers, focusing specifically on girl soldiers, who, despite popular beliefs, constitute a sizeable proportion of child armies. The chapter then provides an overview of the depictions of child soldiers in popular media,

14    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn highlighting how iconography may contribute to shaping policy and programming. Denov and Cadieux Van Vliet conclude by discussing the tensions and paradoxes associated with the translation of formal legal commitments to prohibit and prevent child recruitment in armed conflicts into practice. In Chapter 16, Uğur Ümit Üngör shifts attention from individuals as actors in atrocity crimes toward organizations. In particular, he disentangles and problematizes the involvement of non-​state actors, such as rebel groups, paramilitaries, terrorist organizations, or drug cartels. The post–​Cold War period has seen an increase in mass atrocity crimes committed by non-​state actors. Building upon literature in conflict and terrorism studies, Üngör discusses definitional complexities of distinguishing non-​state actors and demonstrates a variety of different groups and organizations that commit atrocity crime. He notes that non-​state actors’ violence largely varies depending on the purpose of each organization and the context of each situation. In general, however, types, forms, and intensity of violence committed by non-​state actors are determined by their interaction with the state and with the civilians that support the state. In order to demonstrate the variation of groups and their repertoires of violence, Üngör presents four case studies of non-​state actors’ involvement in atrocity crimes from four different continental and national contexts: the Irish Republican Army, the Islamic State in Syria and Iraq, the Lord’s Resistance Army in Uganda, and the Mexican drug cartel the Zetas. In Chapter 17, Wim Huisman, Susanne Karstedt, and Annika van Baar turn readers’ attention to another type of non-​state actor—​corporations—​and map corporate involvement in atrocity crimes using their own comprehensive empirical database of 105 cases of corporations accused of involvement in atrocity crimes from World War II to 2019. Corporations and companies are increasingly in the spotlight when it comes to their harmful activities, as well as the possibly harmful consequences of their business. Huisman, Karstedt, and van Baar define corporate involvement and provide an unprecedented empirical overview of the types of atrocity crimes involving corporations. They distinguish types of corporations and forms of industries involved in atrocity crimes since 1945. They detail these organizations’ “crime scripts,” discussing processes, mechanisms, and gains by which corporations become involved, interact, and collaborate with the main actors in the commission of atrocity crimes. Huisman, Karstedt, and van Baar illustrate their analytical framework with an in-​depth comparative analysis of two historical cases of companies involved in atrocity crimes: the Holocaust committed by Nazi Germany in the 1940s and atrocity crimes committed during the protracted armed conflicts in the Democratic Republic of the Congo in the 1990s and 2000s. Christopher W. Mullins, in Chapter 18, elaborates on the role of the state as the ultimate organizational actor in atrocity crimes. Given their large-​scale character and systematicity, atrocity crimes are often committed, encouraged, or tolerated by states. Drawing upon examples from various cases and contexts around the globe, Mullins discusses how states play a central role in planning, orchestrating, and executing atrocities. States provide coordination and control of necessary resources, including requisite human capital and materiel. Indeed, atrocity crimes usually require large amounts of human capital, extensive communication networks, and the mass movement of people in a geographic area. Mullins illustrates how the strong symbolic power of states facilitates the transmission, and undergirds the legitimacy, of ideologies that are a key aspect of the deployment of mass

INTRODUCTION   15 atrocities. Mullins, therefore, outlines the central role of the state, as both a perpetrator or highly powerful internal bystander, in the commission of atrocity crimes. In the final chapter of this part of the Handbook, Chapter 19, Alex J. Bellamy reflects on how states and the international community pledged to protect civilian populations from atrocity crimes committed around the globe. Bellamy discusses the Responsibility to Protect (R2P)—​a political commitment the international community enacted at the 2005 World Summit after the failures to halt atrocities committed in Rwanda and the former Yugoslavia in the 1990s. R2P holds that sovereign states have a responsibility to protect their own populations from atrocity crimes and that the international community should encourage and assist individual states to fulfill their responsibility. When states are manifestly failing to protect their populations, the international community should respond in a “timely and decisive” fashion. Bellamy examines the emergence of R2P and the responsibilities for protection that come with it. He shows that R2P confers responsibilities upon specific actors but that the principle is grounded in international politics, meaning that, in practice, its implementation record is mixed. Bellamy argues that R2P should, therefore, be thought of as a “responsibility to try.” The chapter also shows that the allocation of responsibility is complicated by the emergence of non-​state armed groups both as perpetrators of atrocity crimes and (selective) protectors from atrocities.

3.4. PART IV—​Harm and victims of atrocity crimes After discussing different actors as perpetrators and bystanders of atrocity crimes, Part IV of the Handbook shifts attention to those who bear the brunt of atrocity crimes. Atrocity crimes are characterized by large-​scale, multifaceted victimization that results in extreme suffering and harms that can take generations to heal. Atrocities entail not only large-​scale mortality but also long-​lasting traumatization and other psychological, economic, cultural, societal, and environmental harm. The victimology of mass atrocity still grapples to understand, map, and theorize the victimhood of atrocity crimes, as well as its different manifestations and forms. The five chapters in this part of the Handbook consequently discuss selected topics related to victims of atrocity crimes and harms caused by the various categories of atrocity crimes. In Chapter 20, Antony Pemberton and Rianne Letschert note that recent years have seen a flourishing of interest in the social science of the experience of suffering atrocity crimes. However, according to them, supranational victimology is still in its infancy. Pemberton and Letschert argue that a reorientation of victimology is needed—​from the epistemological template of the natural sciences focusing on rationality and universality to one drawing on practical wisdom and embracing values, context-​dependency, practice, and action. According to Pemberton and Letschert, the impossibility of abstraction and generalizations is a key feature of atrocity victimization. Drawing upon the phenomenology of Susan Brison, they argue that a key ethical quality of victimization is its nature as an “ontological assault,” or an attack on being that reveals features of being in precisely what it damages/​ diminishes/​destroys. According to Pemberton and Letschert, this ontological assault has implications for the reactions to atrocity crimes, such as various initiatives to deliver justice to victims. The chapter develops the differences between countering injustice and doing

16    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn justice, and sketches how processes of justice can contribute to countering injustice despite their inherent limitations. Given the large-​scale character of atrocity crimes, which are often committed in chaotic contexts of armed conflicts and societal upheavals, it is particularly challenging to establish how many victims were killed, under what circumstances, and by whom. These questions, however, are important if not essential for establishing individual criminal liability of the perpetrators of war crimes, crimes against humanity, and genocide. Chapter 21, written by Helge Brunborg, addresses these very complex issues. Brunborg’s chapter provides an overview of data collection methods and sources on atrocity deaths. As the conventional data sources on death are usually unavailable during wars or mass atrocities, two main methods to collect data on violent deaths are: (i) passive recording of killing incidents from existing sources; and (ii) active recording of deaths in retrospective surveys or censuses. Brunborg discusses perils and challenges of these various methods to estimate mortality. To do so, he relies upon ample examples from past atrocity death estimates from around the globe, with a particular focus on the groundbreaking population project undertaken at the International Criminal Tribunal for the former Yugoslavia. In Chapter 22, Daan P. van Uhm assesses the understudied yet increasingly relevant issue of harm that atrocities cause to the natural environment. As van Uhm notes, atrocities are connected to large-​scale pollution, global deforestation, the disappearance of species, and global warming. Van Uhm’s chapter thus provides a comprehensive overview of the relationship between the environment and atrocities, discussing the environment as cause, tool, and victim of mass violence. He analyzes the interpretation given to the natural environment with regard to three categories of atrocity crimes in international criminal law and urges for the recognition of ecocide as a new category of atrocity crime in the Rome Statute. According to van Uhm, such recognition will help prevent atrocities as well as protect the environment from being damaged. Atrocity crimes oftentimes entail widespread displacement and forced migration, as manifested by the unprecedented forced migration flows from conflict areas or repressive regimes over the past years. Chapter 23 turns attention to this very topical issue. Victoria Colvin and Phil Orchard note that fleeing can be a response to, or part of, an atrocity crime. Within international criminal law, forced deportations and forcible transfers can potentially constitute both crimes against humanity and war crimes, while some forms of forced transfers (such as the transferring of children) may also constitute genocide. According to Colvin and Orchard, as of 2020, the numbers of forced migrants globally exceeded 82.4 million people. Given these alarming trends, Colvin and Orchard discuss historical developments of various international legal mechanisms and instruments aimed at protecting forced migrants (specifically refugees and internally displaced persons) from atrocity crimes. They argue that there has been a growth in such protections over the past decades while also addressing their limitations. In the final chapter of this part, Chapter 24, Lidewyde Berckmoes provides a review of literature dealing with inter-​and transgenerational harms and consequences of mass atrocities. Berckmoes traces the roots of this interdisciplinary field of scholarship back to clinical work with Holocaust survivors’ descendants in the 1960s. Offspring of Holocaust survivors appeared to suffer from psychopathological problems that until then could only be attributed to personal exposure to violence. Ever since, according to Berckmoes, research on the intergenerational transmission of violence and trauma has been growing,

INTRODUCTION   17 and attention has broadened to include various mass atrocity contexts alongside diverse disciplinary perspectives. Berckmoes synthesizes existing studies and critically reflects on definitional issues. She outlines mechanisms of intergenerational transmission of legacies of mass atrocities identified in the literature, such as cycle of violence theory or historical and cultural trauma as a narrative representation of the past harms, among others. Berckmoes also discusses challenges involved in this exciting and still evolving field of inquiry on intergenerational harm of mass atrocities.

3.5. PART V—​Reactions to atrocity crimes Part V provides an overview of scholarship that examines reactions to atrocities with an emphasis on formal and official reactions. Since the 1990s, the field of transitional justice has developed as a separate field of academic inquiry examining how states, societies, communities, and individuals deal with past atrocity crimes, armed conflicts, and repressions. The authors of the seven chapters included in this part of the Handbook each provide a synthesis of and critically reflect on the existing research on different elements of transitional justice: (criminal) accountability, seeking truth, providing reparations and apologies, or memorialization. In Chapter 25, David Tolbert and Marcela Prieto Rudolphy provide an overview of the history, effectiveness, and challenges of transitional justice in the 21st century. They trace the origins of the term, discuss its definitional ambiguities, and note how transitional justice and its practices have exponentially grown in scope (e.g., the diversity of transitional justice measures) and focus (e.g., the diversity of situations such measures are being applied to) over the past decades. They review some of the key issues currently facing the field, including transitional justice’s uneasy relationship with criminal justice, gender justice, the role of victims, transformative justice, the template or “check the box” approach, and the role donors play in transitional justice efforts. Tolbert and Prieto Rudolphy argue that these challenges continue to test the limits of the field of transitional justice, while practitioners and scholars alike continue moving past the conventional approaches, dogmas, and boundaries of the field. While welcoming many of these developments, they warn that expanding the limits of transitional justice may render the concept and field incoherent or useless by encompassing too much. Nancy Amoury Combs, in Chapter 26, focuses on international criminal courts and tribunals as the primary mechanisms established to address atrocity crimes at the international level. She notes how international criminal justice has occupied the imagination of many scholars, policy makers, and practitioners since the 1990s. Combs surveys international criminal law scholarship and demonstrates the dramatic evolution that has taken place in the attitudes and expectations of scholars, popular commentators, and practitioners of mass atrocity trials: from limitless optimism and celebrations in the 1990s toward a much more skeptical, reflexive, and critical stance nowadays. She outlines some of the most serious difficulties that practically impede the criminal prosecution of mass atrocities. Although some of these difficulties are legal doctrinal in nature, international criminal law’s most pressing challenges emanate, according to Combs, from non-​legal sources. In particular, she highlights international criminal law’s selectivity and its evidentiary impediments. These and other problems more broadly underline what Combs considers the field’s most

18    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn pressing overarching difficulty: the stark mismatch between the ideals to which it aspires and the reality in which it is mired. Chapter 27, written by Kim Thuy Seelinger and Elisabeth Jean Wood, continues with the focus on criminal prosecutions of atrocity crimes but zooms in on one of the novel aspects of modern international criminal justice: investigations and prosecutions of sexual violence as atrocity crimes. Thuy Seelinger and Wood analyze how recent social-​scientific research on sexual violence by armed actors may impact the legal practices of international criminal courts and tribunals. In particular, they focus on a fundamental challenge to prosecutions of both rape and other forms of sexual violence, which, as social scientists have identified, may be committed frequently by members of an armed organization without being ordered or authorized as policy. Thuy Seelinger and Wood term this bottom-​ up phenomenon “sexual violence as practice.” As such, sexual violence as practice is driven by gender norms held by combatants and commanders alike. Thuy Seelinger and Wood argue that attention to these social dynamics can enhance prosecutors’ gender analysis and investigation of crimes committed within an armed conflict. According to them, charging sexual violence that occurs as practice calls for specific characterizations of the offense and modes of liability. Jeremy Julian Sarkin, in Chapter 28, shifts attention to the absence of criminal accountability, focusing instead on those instances where an amnesty was declared, and discusses the interrelationship between amnesties and truth commissions. Sarkin observes that in the aftermath of mass atrocities, dozens of truth commissions, hundreds of amnesty processes, and a multitude of other similar mechanisms have been established around the world. Sarkin illustrates an important paradox: while blanket amnesties for atrocity crimes are now almost universally condemned, amnesties play a much more ambiguous role within truth commission processes, which oftentimes do not seek to legally determine whether an act constituted atrocity crime. After defining amnesties and truth commissions, Sarkin discusses their complex interrelationship and examines how (past) amnesties affect the work of truth commissions in countries where both processes co-​existed. He focuses on the South African Truth and Reconciliation Committee as the first and only truth commission in history with the power to directly grant amnesty. Sarkin then explores the role of amnesties vis-​à-​vis truth commissions in various contexts—​such as Grenada, Indonesia, the Democratic Republic of the Congo, Nepal, East Timor, Liberia, Kenya, and South Korea—​to understand how the fact that these bodies only had the power to recommend amnesty affected their quest to deal with past mass atrocities. Chapter 29 focuses on a topic in transitional justice that has attracted less extensive coverage: the use of “traditional” or customary practices. Although scholarly attention is lacking, customary practices are often used after conflicts or mass violence to deal with the consequences of atrocity crimes and help rebuild societies and communities, as Joanna R. Quinn demonstrates. She describes some contexts in which customary justice has been used and discusses the changing nature of customary justice responses. Quinn assesses the often-​problematic relationship between customary and formal law and demonstrates some of the dilemmas via her fieldwork tied to two case studies: Uganda and the Fiji Islands. Quinn argues that the use of customary justice in the aftermath of atrocities (similar to other transitional justice measures) can encounter challenges, including issues of power and legitimacy, cross-​ethnic applicability, the potential for corruption, and difficulties with quality and inclusion.

INTRODUCTION   19 In Chapter 30, Stephanie Wolfe turns readers’ attention to reparations and apologies, which have emerged as important mechanisms of transitional justice, especially since the 1990s. Wolfe traces their historical developments and discusses how reparations and apologies developed as norms of redress, as well as expectations of those who have been harmed by atrocities. According to Wolfe, however, in isolation, these measures can be (and have been) used by states to avoid coming to terms with past injustices. Reparations without an apology have been derogatorily referred to as “blood money” or a payout for lives lost; while apologies without reparations have likewise been flawed, often seen by the victims as hollow words utilized to deflect true responsibility. Conversely, Wolfe argues that when utilized together, apologies and reparations can form the beginning of an apologetic stance: a clear indication that state actors express remorse for the atrocities state has been involved in coupled with true engagement with those that it victimized. Nicole Fox’s Chapter 31, the final chapter of this part, focuses on memory, memorialization, and memorials. Similar to the other transitional justice mechanisms, memorialization and memorials of past atrocities offer many possibilities but also face many challenges, according to Fox. Memorialization processes and outcomes highlight the complicated dynamics of dealing with past atrocities, such as who are and are not included as victims of atrocity; how to foster collaboration among many different stakeholders; and how to respectfully respond to public dialogues and controversies. Fox illustrates these issues by discussing various post-​atrocity memorials from around the world via an examination of the three historical movements central to the emergence of contemporary memorial culture: the 1990s memory boom, the human rights movement, and the justice cascade.

3.6. PART VI—​Case studies Part VI of the Handbook consists of original case studies selected in order to provide examples of atrocity crimes, as well as applications of the theories and research reviewed in the Handbook. We carefully chose the case studies to provide readers with original research on cases that are often understudied, stem from different regions of the world, and can be seen as prototypical examples of each category of atrocity crimes. However, as the case studies show, in practice mass violence is often confounded and multifaceted. More often than not, the crimes committed within violent contexts can be classified under multiple categories of atrocity crimes. Each author covers concepts raised in the Handbook, including but not limited to history, causes, actors, victimization, consequences, and reactions to atrocities. Therefore, in this final part of the Handbook, readers can delve into an original, comprehensive, and condensed overview of relatively understudied situations of atrocity crimes.

3.6.1. War crimes In Chapter 32, Joris van Wijk challenged himself “to convince the reader that when studying atrocity crimes and their aftermath, the case of Angola deserves to be included.” Based on his own fieldwork and long-​term interest and research in the country, he describes and analyzes war crimes committed during the 27-​year armed conflict in Angola, as well as, only until very recently, the complete absence of transitional justice measures adopted thereafter.

20    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn After a war of independence against the Portuguese colonizer, Angola experienced a civil war from 1975 to 2002. Van Wijk argues that the conflict could be characterized as a proxy of the Cold War in the 1970s and 1980s, which turned into a “greed”-​based war over the control of natural resources in the 1990s. During the prolonged armed conflict, numerous war crimes, and arguably also crimes against humanity, were committed. An estimated 500,000 to one million people died as a consequence of the hostilities, and the country was infected with landmines. When a peace agreement was signed in 2002, it included a blanket amnesty for all former warring parties. As such, van Wijk analyzes why and how—​in the absence of any accountability mechanisms—​alternative strategies to truth seeking, reconciliation, commemoration, or memorialization have only been adopted to a very limited extent. Put another way, he asks: how and why had forgetting become an official Angolan policy? In Chapter 33, we journey from Africa to Latin America. Oliver Kaplan discusses Colombia, a country which just recently emerged from a more than 50-​year civil war and is now actively dealing with consequences of this prolonged violence. In contrast to Angola’s “forgetting” approach, the Colombian government launched a comprehensive, and very complex, transitional justice program in 2016. This program is meant to address past atrocity crimes, dispense accountability, uncover the truth, and satisfy victims. Kaplan reviews diverse forms of atrocities committed by a variety of actors that have been classified as war crimes, crimes against humanity, or even genocide by some. He identifies several extermination campaigns as well as other patterns of massacres, forced displacements, and targeted political killings. Beyond these grave harms, Kaplan also documents the widespread reaction to atrocities by the government and civil society. He concludes with a characterization of the continuing threats of violence in Colombia, as well as a research agenda that offers hope for making the phrase nunca más—​never again—​a reality.

3.6.2. Crimes against Humanity Chapter 34, written by Jess Melvin and Annie Pohlman, takes readers to Asia and provides a detailed overview and analysis of a historical case of crimes against humanity committed in Indonesia in 1965–​1966. Melvin and Pohlman describe how, in October 1965, the Indonesian military took over the government and mobilized national and religious militias to assist in wiping out the Indonesian Communist Party (PKI). Up to one million people were killed, and a further one-​and-​a-​half million were held in detention camps for their alleged Communist affiliations. The military government fell in 1998, and in the two decades since, there has been no political will to investigate or redress the state-​led atrocities committed by Indonesia’s military. In 2012, the Indonesian National Commission for Human Rights released a landmark report into the 1965 atrocity crimes, finding strong evidence of crimes against humanity. Similar to the Angolan case, however, the Indonesian government did not follow its promise and initiate prosecutions or any other redress measures. Instead, it has, according to Melvin and Pohlman, been determined to dig a hole and bury the past atrocities deep out of sight. In contrast to the Indonesian “amnesia,” the case of Ethiopia, discussed in Chapter 35 by Thijs B. Bouwknegt and Tadesse Simie Metekia, is an example of a country where transitional justice, trials, and punishment of perpetrators of (some of the) atrocity crimes took place on a massive scale. Bouwknegt and Metekia describe how Ethiopia has experienced

INTRODUCTION   21 a gamut of mass atrocity violence over the last century. Colonial, political, and ethnic violence have been cyclical phenomena and have often escalated into atrocity crimes against civilians. They argue that these cycles of violence can be best classified as crimes against humanity that often overlap with war crimes and episodes of genocide. It is notable that in Ethiopian law, the concept of crimes against humanity, in contrast to international criminal law, is understood as an umbrella category covering all categories of atrocity crimes. After discussing causes, actors, victims, and consequences of the different episodes of mass atrocities in Ethiopia since 1936, Bouwknegt and Metekia turn their attention to transitional justice mechanisms adopted in their aftermaths. They argue that when it comes particularly to atrocity crime prosecutions, Ethiopia has been spearheading trends in international law and transitional justice, but has done so on its own terms.

3.6.3.  Genocide The final two chapters turn the discussion to genocide, the final category of atrocity crimes, and feature a more historical and a more recent case of this group-​destructive atrocity. Chapter 36, written by Naomi Roht-​Arriaza, describes and analyzes various atrocity crimes committed during the armed conflict in Guatemala between 1960 and 1996. Roht-​Arriaza focuses in particular on the genocide committed against indigenous peoples descended from the Maya, which took place in the early 1980s. Roht-​Arriaza traces the causes, actors, and aftermath of the atrocity crimes and assesses how the atrocities were dealt with after the signing of a peace accord in 1996. In this portion of the chapter, she focuses on the complexities of the 2013 genocide trial of former dictator Efraín Ríos Montt and his chief of intelligence Rodriguez Sánchez, charged with 1,771 murders and the forcible displacement of 29,000 individuals. The trial was truly historic, as it was the first time a national court in Latin America held its own former leader to account for genocide. Yet, Ríos Montt died before the final verdict, and Rodriguez Sánchez was acquitted. The result thus was, according to survivors cited by Roht-​Arriaza, that “genocide was committed but somehow no one is responsible.” For many of the indigenous peoples, however, the trial of Ríos Montt and the other genocide trials were a vindication of sorts as an official acknowledgment that they had been wronged, according to Roht-​Arriaza. The last chapter of the Handbook, Chapter 37, written by Kjell Anderson, discusses one of the most recent cases of genocide that was widely broadcast—​the genocide against the Êzidîs (Yazidis) committed by the Islamic State (IS) in the Sinjār in northern Iraq, which commenced in 2014 and is arguably still ongoing. Anderson recounts how when he visited the place of the massacre in 2016, it “was a scene of utter devastation [and] there was not much city left to speak of.” In his chapter, based on his own interviews and existing sources, Anderson considers intercommunal relations before the Sinjār Massacre, the nature of IS’s violent campaign, and questions of identity, legal accountability, and victim trauma after the massacre. He argues that the killing, forced displacement, forced conversion, forced marriage, and the destruction of Êzidî cultural property committed by IS can indeed be classified as genocide. He discusses the domestic and international reaction to the genocide and outlines relatively meek accountability prospects. Anderson emphasizes a need for further research to document the violence and to give voice to the survivors. Anderson concludes his chapter, and the Handbook as such, using powerful words of an Êzidî monk

22    Barbora Holá, Hollie Nyseth Nzitatira, and Maartje Weerdesteijn he interviewed in Lalish: “There are many beautiful flowers in this world. We are but one color. Don’t let us disappear.”

References Akhavan, P. (2007) “Proliferation of Terminology and the Illusion of Progress.” Genocide Studies and Prevention 2(1), pp. 73–​80. Alvarez, A. (2001) Governments, Citizens, and Genocide: A Comparative and Interdisciplinary Approach. Bloomington: Indiana University Press. Alvarez, A. (2009) Genocidal Crimes. New York: Routledge. Bantekas, I. and Mylonaki, E. (eds.) (2014) Criminological Approaches to International Criminal Law. Cambridge: Cambridge University Press. Barak, G. (ed.) (2015) The Routledge International Handbook of the Crimes of the Powerful. New York: Routledge. Bazyler, M.J. (2007) “In the Footsteps of Raphael Lemkin.” Genocide Studies and Prevention 2(1), pp. 51–​56. Bloxham, D., and Moses, D.A. (eds.) (2010) The Oxford Handbook of Genocide Studies. Oxford: Oxford University Press. Bonacker, T., and Safferling, C. (eds.) (2013) Victims of International Crimes: An Interdisciplinary Discourse. The Hague: T.M.C. Asser Press. Brannigan, A. (2013) Beyond the Banality of Evil—​Criminology and Genocide. Oxford: Oxford University Press. Chetham, A. (2020) “A Theory of International Crimes: Conceptual and Normative Issues.” In: Heller, K.J., Ohlin, J., Nouwen, S., Mégret, F., and Robinson, D. (eds.) The Oxford Handbook of International Criminal Law. Oxford: Oxford University Press, pp. 317–​340. Franklin, J. H. (1998) Washington Williams: A Biography. Durham, NC: Duke University Press. Glueck, S. (1945) War Criminals: Their Prosecution and Punishment. New York: Alfred A. Knopf. Hagan, J., and Rymond-​Richmond, W. (2009) Darfur and the Crime of Genocide. Cambridge: Cambridge University Press. Heller, K.J., Ohlin, J., Nouwen, S., Mégret, F., and Robinson, D. (eds.) (2020) The Oxford Handbook of International Criminal Law. Oxford: Oxford University Press. Jones, A. (2017) Genocide—​A Comprehensive Introduction. New York: Routledge. Karstedt, S. (2013) “Contextualizing Mass Atrocity Crimes: Moving Toward a Relational Approach.” Annual Review of Law and Social Science 9(1), pp. 383–​404. Lawther C., Moffett, L., and Jacobs, D. (eds) (2017) Research Handbook on Transitional Justice. New York: Edwar Elgar. Lemkin, R. (1944) Axis Rule in Occupied Europe: Laws of Occupation—​Analysis of Government—​ Proposals for Redress. Washington, D.C.: Carnegie Endowment. Letschert, R., Haveman, R., De Brouwer, A., and Pemberton, A. (eds.) (2011) Victimological Approaches to International Crimes: Africa. Cambridge: Intersentia. Levene, M (2007) “David Scheffer’s ‘Genocide and Atrocity Crimes’: A Response.” Genocide Studies and Prevention 2(1), pp. 81–​90. Luban, D. (2004) “A Theory of Crimes against Humanity.” The Yale Journal of International Law 29(1), pp. 85–​167.

INTRODUCTION   23 Mennecke, M. (2007) “What’s in a Name? Reflections on Using, Not Using, and Overusing the ‘G–​Word’.” Genocide Studies and Prevention 2(1), pp. 57–​7 1. Minow, M. (2007) “Naming Horror: Legal and Political Words for Mass Atrocities.” Genocide Studies and Prevention 2(1), pp. 37–​41. Moyn, S. (2020) “From Aggression to Atrocity: Rethinking the History of International Criminal Law.” In: Heller, K.J., Ohlin, J., Nouwen, S., Mégret, F., and Robinson, D. (eds.) The Oxford Handbook of International Criminal Law. Oxford: Oxford University Press, pp. 341–​360. Petrovic, D. (1994) “Ethnic Cleansing—​An Attempt at Methodology.” European Journal of International Law 5, pp. 1–​19. Rafter, N. (2016) The Crime of All Crimes—​Toward a Criminology of Genocide. New York: New York University Press. Sadat, L.N. (ed.) (2011) Forging a Convention for Crimes Against Humanity. Cambridge: Cambridge University Press. Savelsberg J. (2010) Crime and Human Rights: Criminology of Genocide and Atrocities. London: Sage. Schabas, W.A. (2007) “Semantics or Substance? David Scheffer’s Welcome Proposal to Strengthen Criminal Accountability for Atrocities.” Genocide Studies and Prevention 2(1), pp. 31–​36. Schabas, W.A. (2016) “Atrocity Crimes (Genocide, Crimes against Humanity and War Crimes).” In: Schabas, W. (ed.) Cambridge Companion to International Criminal Law. Cambridge: Cambridge University Press, pp. 199–​213. Schabas, W.A., and Bernaz, N. (eds.) (2011) Routledge Handbook of International Criminal Law. New York: Routledge. Scheffer, D. (2006) “Genocide and Atrocity Crimes.” Genocide Studies and Prevention 1(3), pp. 229–​250. Smeulers, A., and Haveman, R. (eds.) (2008) Supranational Criminology—​ Towards a Criminology of International Crimes. Antwerp: Intersentia. Smeulers, A., Weerdesteijn, M., and Holá, B. (eds.) (2019) Perpetrators of International Crimes: Theories, Methods, and Evidence. Oxford: Oxford University Press. Straus, S. (2016) “What Is Being Prevented? Genocide, Mass Atrocity, and Conceptual Ambiguity in the Anti–​Atrocity Movement.” In: Rosenberg, S.P., Galis T., and Zucker, A. (eds.) Reconstructing Atrocity Prevention. Cambridge: Cambridge University Press, pp. 17–​30. Tropp, L.R. (ed.) (2012) The Oxford Handbook of Intergroup Conflict. Oxford: Oxford University Press. Woolf, L.M., and Hulsizer, M.R. (2005) “Psychosocial Roots of Genocide: Risk, Prevention, and Intervention.” Journal of Genocide Research 7(1), pp. 101–​128.

PA RT I

AT RO C I T Y C R I M E S

CHAPTER 1

Geneal o g y a nd Et ymol o gy of Atro cit y C ri me s Jeremy Kuperberg and John Hagan 1.  Introduction The legal conceptualization of mass atrocities has evolved dramatically over the last century. Norms related to the conduct of war have been codified in some societies since antiquity, but did not approach successful global diffusion until the early 20th century. Since then, both legal implementation and scholarly attention to the statutes governing atrocities have been inconsistent. The post–​World War I idealism of global governance was washed away by the tide of fascism; subsequently, the first trials with real authority to charge atrocity crimes gave way to the realpolitik-​induced silence of the Cold War. Only in the 1990s and 2000s did the world see anything resembling broad enforcement of individual criminal accountability for atrocity crimes, and even this upsurge in enforcement threatens to die out due to nationalist trends in contemporary geopolitics (Bassiouni, 2010). In this chapter, we seek to place these ebbs and flows in their historical contexts by tracing the legal and etymological development of war crimes, genocide, and crimes against humanity. We then examine two realms in which boundaries among these categories have frequently been contested: group identity, as murky decisions over what constitutes a target group often determine which laws can be enforced; and sexual violence, too long disregarded as a legitimate breach of conflict norms in relation to non-​gendered crime. Finally, we discuss what we call “conceptual disruptors,” who are scholars introducing new language for these crimes based on perceived academic, legal, or political shortcomings. While this volume discusses the legal categories just listed, they are placed under a label—​“atrocity crimes”—​originally introduced in an effort to mitigate the consequences of those very labels’ political deployment. Analysis of the genealogy and etymology of atrocity crime, then, is not merely an exercise in either linguistics or legal history. As we explore in the ensuing pages, each of these terms and legal categories emerged as a reaction to

28    Jeremy Kuperberg and John Hagan sociopolitical, ethical, or academic changes which render the terms themselves relevant to a variety of academic disciplines, political applications, and activist movements.

2.  Historical Development of Atrocity Crimes The atrocity crimes explored here have existed for as long as state governance and violent warfare have been waged. These acts were nameless and occurred with impunity in previous eras, occasionally breaking with social norms but rarely provoking legal action. Scholars of atrocity crime often invoke historical examples of genocide, as in the Roman destruction of Carthage in 146 BC; crimes against humanity, such as the trans-​Atlantic slave trade; and innumerable instances of war crimes in order to highlight that new terms do not necessarily represent new phenomena (see for example Kiernan, 2009a; Lemkin, 1944). The introduction of socio-​legal terminology for these acts merely reflected new political configurations and moral understandings that spurred attempts to curtail the scale of conflict-​related suffering. These laws are divided into two often-​overlapping categories: jus ad bellum, which regulates the proper justifications for war; and jus in bello, or international humanitarian law (IHL), which governs how war is waged and which persons are protected during armed conflict. Despite a tendency to conflate these two categories (Blank, 2011), the two traditions remain separate in codified law.

2.1. War crimes: From fledgling norm to international law War crimes are defined in Article 8 of the Rome Statute1 as “serious violations of the laws and customs applicable in international armed conflict” and “in armed conflicts not of an international character.” This category can be distinguished from the others in two ways: first, a war crime can be an isolated criminal act, while crimes against humanity and genocide indicate broader patterns of atrocities; second, as the name suggests, this crime can only be committed in the course of war, while the others can occur in times of war or peace.2 Further legal and etymological distinctions between crimes against humanity and genocide will be explored in the coming sections. Both the concept of war crimes and their criminalization predate the other categories of atrocity crime. Accounts of war dating to antiquity outlined two primary principles for legitimate military conduct: those of necessity and humanity. Aryeh Neier (1998, p.

1 

Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 2  In the case of crimes against humanity, this is a relatively recent development. Until the 1990s, the crime was explicitly tied to cases of international armed conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international court to allow charges in cases of non-​ international armed conflict, while the International Criminal Tribunal for Rwanda (ICTR) abolished the nexus to war entirely (Meron, 1999).

Genealogy and Etymology of Atrocity Crimes    29 12) elaborates: “Under the first [necessity], that which is necessary militarily to vanquish the enemy may be done. Under the second [humanity] . . . that which causes unnecessary suffering is forbidden.” These principles have been further developed in more recent laws and treaties, but the essential principles remain in the doctrines of proportionality and distinction.3 Proportionality, modeled after medieval codes of chivalry, allows for “only minimum force, consistent with military necessity” (Lynch, 2014, p. 60) to be used in combat. Distinction represents the military’s formal differentiation between combatants and civilians when selecting targets for attack (Kinsella, 2011).4 Prohibitions on specifically enumerated wartime violations first arose in Britain around the period of the Hundred Years’ War (Meron, 1999). Kings Richard II and Henry V issued “Ordinances of War” in 1385 and 1419, respectively, which outlawed such acts as pillage, rape, and the targeting of unarmed persons (Keen, 1995). Philosophical articulations of warfare’s legality emerged in the 18th century, as increases in European state stability and military capacity heightened social sensitivity to state violence (Savelsberg, 2010). In his Social Contract, Rousseau (1999, p. 52) invoked the principle of necessity when discussing the status of unarmed persons: The purpose of war being to destroy the enemy state, its defenders may rightfully be killed so long as they are carrying arms; but as soon as they lay them down and surrender, ceasing to be enemies or agents of the enemy, they become simply men again, and there is no longer any right over their lives.

This passage both builds on the British ordinances and presages the protected status of surrendered soldiers in the Hague Conventions over a century later, exemplifying the relevance of custom in common definitions of “war crimes.” Enlightenment-​era treatises, such as Rousseau’s, soon bore fruit in the first modern legal codes of military conduct. During the U.S. Civil War, in 1863, President Abraham Lincoln issued General Order No. 100 in response to reported abuses against civilians and escaped slaves (Schindler and Toman, 2004). In drafting the code, Francis Lieber (1863) covered foundational principles of jus in bello such as necessity, humanity, distinction, and treatment toward prisoners of war. The contours of this pioneering document would be essentially recycled over the course of the ensuing decades, with state officials throughout Europe and the wider international sphere working toward a universal criminalization of wartime atrocities. Agreements at Brussels in 1874 and Oxford in 1880 merely tweaked the vision of the Lieber Code and set the stage for successful international agreement at The Hague in 1899. Henry Dunant of the International Red Cross, working contemporaneously to these discussions, pushed for the codification of international laws that would mitigate the disastrous effects of modern warfare on ailing soldiers and sailors (Savelsberg, 2010). These efforts pushed the definition of “civilian” further, protecting former combatants who 3 

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Protocol I). 4  Clear distinction between combatants and civilians is often impossible in contemporary irregular conflicts. Kinsella (2011) therefore notes that discourses of age, civilization, and especially gender are often used as unacknowledged proxies for civilian status. Also see Kinsella (2011) for detailed analysis of distinction’s historical evolution in war and law.

30    Jeremy Kuperberg and John Hagan had been incapacitated through participation in war as if they were total noncombatants themselves. These first several Geneva Conventions5 only covered conduct in international conflict, however, respecting the still-​dominant norm of state sovereignty. The ratifications by all major global powers of the Hague Conventions of 1899 and 1907 represented a watershed moment in the development of international laws of war. These agreements largely mirrored the Lieber Code, focusing on distinction as well as the “humane” use of force between warring forces.6 Unlike their American counterpart, however, these conventions were proactive and international: in theory, they would allow for accountability among powerful states in any future war. Despite the idealism of the moment, most of these principles were soon violated in World War I (Neier, 1998).7 Furthermore, the interwar attempt at global governance by the League of Nations was crippled by nationalist resistance to binding international treaties (Schabas, 2000). Little progress was therefore made before existing laws were again flouted during World War II. After 1945, the United Nations sought to broaden the scope of existing laws of war and to fill in gaps exposed by German and Japanese atrocities. It called for yet another multilateral treaty of humanitarian law that would improve upon the Hague and Geneva Conventions by outlawing crimes that had previously been merely implied. The fourth Geneva Convention largely restated those laws from earlier conventions, tweaking several to apply to all civilians alongside incapacitated soldiers.8 In addition, the law now proscribed forced deportations from occupied territory and biological experimentation on civilians in direct reaction to Nazi and Japanese programs. The scope expanded yet further with 1977’s Additional Protocols, providing greater protection for victims of non-​international armed conflict and protecting participants in wars against colonial rule or occupation.9 The laws of war would continue to evolve to fit the ever-​changing nature of conflict, as the category itself became progressively entrenched in both international law and moral principle. The remaining legal categories of atrocity crime were slow to emerge relative to war crimes. In the case of genocide, this was due in part to the norm of Westphalian national sovereignty, long understood to preclude intervention into the affairs of sovereign states. Such a principle was never followed at a truly global level—​see colonial conquests for the most obvious exceptions—​but the enduring strength of this norm allowed sub-​state and sub-​empire atrocities to proceed for centuries without international repudiation or legal

5  Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (adopted August 22, 1864, entered into force June 22, 1865) (1864 Geneva Convention), which was later replaced by the Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (adopted July 6, 1906, entered into force August 9, 1907) (1907 Geneva Convention). 6  Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted October 18, 1907, entered into force January 26, 1910) (Hague Convention). 7  Prominent examples include the German attack of neutral Belgium (Article 25) and use of mustard gas on the battlefield (Article 23). 8  Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention). 9  Protocol I; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 609 (Protocol II).

Genealogy and Etymology of Atrocity Crimes    31 action (Savelsberg, 2010).10 It took the horrors of World War II for the international legal community to develop a criminological distinction between the accumulated commission of individual war crimes and programs of mass violence against civilians.11 In the aftermath of World War II, the victorious Allies made the unprecedented decision to hold the architects of the Axis regimes accountable for a new set of crimes through criminal tribunals in Nuremberg and Tokyo, rather than resorting to summary executions or show trials (Nino, 1998). In prosecuting crimes against humanity and crimes against the peace, and considering the crime of genocide, state leaders were seeking the more difficult and uncertain path. Despite the canon of law developed at Geneva and The Hague, state and military leaders had never before been prosecuted for crimes of this nature. Still, the U.S. government in particular (Stimson et. al, 1945) hoped to prosecute Nazi leaders for planned, systematic violence beyond the mere commission of war crimes. Crimes against humanity and genocide, while previously discussed in some form, were as-​yet uncodified and necessitated pushing against the legal status quo with regards to state sovereignty and criminal liability. This required the vision of pioneering jurists who had long worked to develop new categories of atrocity-​based crime.

2.2.  Genocide The criminalization of genocide was largely achieved through the efforts of Raphael Lemkin. A Polish Jew, Lemkin drew from both personal experience and study of the Armenian Genocide (Balakian, 2013) in demanding the legal prohibition of state violence against national or religious groups (Irvin-​Erickson, 2016; Sands, 2017). In a 1933 paper intended for the League of Nations, Lemkin (1933) introduced the new criminal concepts of “barbarity” and “vandalism.” Barbarity resembled today’s category of genocide, involving a physical “attempt to destroy ethnic, religious, or social collectivities” (Lemkin, 1933). Vandalism, meanwhile, would protect “a group’s cultural works,” prohibiting the “systematic and organized assault against the heritage or unique genius and achievement of a collectivity” (Lemkin, 1933). The two proposals were unprecedented in pushing for criminal liability specifically tied to the motive of targeting a group. These initial efforts, however, amounted to little. The Polish government was in the midst of protesting minority protections inscribed in the Treaty of Versailles, believing that they prioritized Jewish political mobilization over Polish national sovereignty (Irvin-​Erickson, 2016). In this climate, Lemkin’s proposals were essentially blocked from any substantial international audience. Ironically, the idea of legal protection for groups drew on some of the very sources that had enabled impunity for state violence in prior centuries. The Peace of Westphalia, while institutionalizing state sovereignty, recognized the need for minority protection

10  See impunity and denial following the Armenian (Akcam, 2006; Gocek, 2014), Herero (Anderson, 2005; Olusoga and Erichsen, 2010), and indigenous American (Alvarez, 2015; Madley, 2016) genocides. 11 This distinction was still primarily limited to international armed conflict. As Mantilla (2018) explains, the widespread extension of atrocity crime to internal armed conflict only occurred with considerable social pressure, as politicians did not want to constrain action in colonial or anticommunist conflicts.

32    Jeremy Kuperberg and John Hagan within the nation-​state system (Schabas, 2000). Concurrently, the Ottoman Empire’s millet system granted protections and freedoms to minority groups while also reserving certain privileges for the Muslim majority. While progressive for its time, this arrangement ultimately inflamed intergroup tensions in advance of the Armenian Genocide (Melson, 1992). Lemkin’s motivation to protect groups with binding international laws stemmed from the very failure of these other protections to prevent violence against identity-​based groups. While fleeing Europe in the 1940s, Lemkin compiled documents and legal decrees from the Nazi regime in order to establish a pattern of criminal oppression and destruction throughout German-​occupied Europe (Sands, 2017). He would transform this mass of documentary evidence into Axis Rule in Occupied Europe (1944), a detailed record of legally sanctioned atrocity. Rather than exploiting the most sensational aspects of Nazi violence, Lemkin draws from Weber in demonstrating the legal and bureaucratic foundations of popular involvement in group destruction (Irvin-​Erickson, 2016). Lemkin (1944, p. xi) paints an integrated picture of Nazi policy as eugenic social planning, “embark[ing] upon a gigantic scheme to change . . . the balance of biological forces between [Nazi Germany] and the captive nations for many years to come.” Seeing nothing in existing humanitarian law accounting for the scope of such a crime, the author seeks to fill the conceptual gap made evident by the violence around him. Following his more document-​focused chapters, Lemkin introduces a concept to describe the cohesive Nazi plan. “Genocide,” a Greco-​Latin neologism literally translated as “race-​murder,” accounts for group destruction that transcends violence against individual persons. The term, Lemkin (1944, p. 79) explains, signifies: . . . [A]‌coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of . . . individuals, not in their individual capacity, but as members of the national group.

In this original conception, genocide is more social than physical in nature—​group destruction likely accompanied by mass murder but not necessarily requiring extermination of the Nazi type. This sociological aspect of genocide would make it the most culturally resonant and widely discussed concept within atrocity crime over the long term (Lang, 2016), but would also render genocide the most difficult atrocity crime to prosecute (Scheffer, 2006). Following World War II, Lemkin unsuccessfully sought to convince the framers of the Nuremberg Tribunal to include the crime both in the charter and indictments of Nazi leaders (Irvin-​Erickson, 2016; Sands, 2017). Most judges at Nuremberg saw “genocide” as an unnecessary annoyance that undermined the notion of individual rights. However, its surprising inclusion in British closing arguments and subsequent domestic Nazi trials demonstrated the category’s growing resonance (Schabas, 2000). In 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide.12 International criminal and human rights law 12  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention).

Genealogy and Etymology of Atrocity Crimes    33 now recognized civilian-​targeted abuses occurring even in the absence of armed conflict, while simultaneously strengthening protections for group-​identified collectivities (Schabas, 2000). In Article II of the Convention, now the customary legal definition of genocide, the crime is defined as: . . . [A]‌ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. As foreseen by the Nuremberg jurists, this innovation produced a variety of legal quandaries. First, “intent to destroy” requires evidence of a mens rea for committing the crime. Courts must find evidence not only of acts of group-​related destruction, but also of a strategic plan, superior orders, or other proof that these acts occur in service of destroying an enumerated group. Lemkin may have claimed the irrelevance of intent by seeing acts of group destruction as paramount, but the very concept of group-​murder demands proof of perpetration on the basis of group identity (Levene, 2008). Adapting to this new legal landscape, genocidal leaders in the late 20th century often eschewed officially documented orders or outsourced physical destruction to paramilitaries in order to obscure government participation and avoid liability (Alvarez, 2009). The next clause, “in whole or in part,” proved similarly controversial. As Lemkin (1944, p. 79) noted, “genocide does not necessarily mean the immediate destruction of a nation,” but rather a strategic plan attacking the “essential foundations of the life of national groups.” Clearly, reserving genocide only for acts resulting in the deaths of all group members would render the crime irrelevant. Perhaps a few colonial genocides achieved this goal of total annihilation, but modern examples as extensive as the Holocaust and the Rwandan genocide fell far short of this threshold. Boghossian (2010, p. 75) worries that the threshold past which targeted killings become genocide is entirely vague, explaining: “the trouble is that a ‘part’ of a particular group can be a very small part. And the definition does nothing to rule out that particular reading.” Uncertainty over the meaning of “in part” would have to be determined through case precedent. The third contentious issue is that of enumerated groups. Article II of the Genocide Convention lists only “national, ethnical, racial or religious group[s]‌” as eligible victim groups, excluding categories based on, for example, political affiliation, economic class, gender, and sexual identity. Lemkin himself believed that political groups lacked the “permanency” necessary for inclusion (Schabas, 2000, p. 154). This perspective seems sociologically suspect—​can one truly classify political groups as any more dependent on social construction than national (Anderson, 1991), ethnic (Brubaker, 2002), or racial ones (Du Bois, 1994; Smedley, 1998)? The contrast between political and religious identity is especially curious given the individual agency involved in both, at least until considering the manner

34    Jeremy Kuperberg and John Hagan in which such identities are framed biologically in certain perpetrators’ imaginations (Levene, 2008).13 Justifications for excluding enumerated groups were not merely theoretical, as several were ultimately dropped from the Genocide Convention due to the political self-​interest of national representatives. Josef Stalin personally sought the removal of political and economic groups from early Convention drafts, fearing retroactive liability for the Great Terror and political purges (Weiss-​Wendt, 2017).14 Egypt and several Latin American dictatorships voted similarly out of concern that violently crushing revolutionary movements in their respective countries might lead to claims of genocide. Several attempts have been made since the Convention to broaden the scope of enumerated groups,15 but the likelihood of expanding the list at the international level appears distant. The Convention drafters similarly considered the criminalization of cultural genocide. Like Lemkin’s “vandalism,” this crime would have encompassed “acts committed with the intention of destroying the language, religion or culture” of an enumerated group (Azkoul, 1948, p. 8). The official notes describe the Western bloc now leading the strategic opposition, as the American delegation argued that cultural genocide was insufficiently barbarous for the Convention. However, State Department communications reveal political concern over issues ranging from foreign missionary work to racial segregation (Weiss-​Wendt, 2017). As colonial powers, France and Britain similarly opposed the idea and sought to further limit the Convention to self-​governing polities. Cultural genocide was eventually discarded, denying Lemkin’s clear distinction between group destruction and mass murder. More importantly, this cemented cultural erasure’s persistent status as a “humane” alternative to group extermination (Davidson, 2012).

2.3. Crimes against humanity The category of crimes against humanity shares a lineage with war crimes, as both stress the principle of humanity. As stated earlier, however, the two crimes cover atrocities of different scale and scope. Where war crimes cover individual abuses in conventional warfare, crimes against humanity target broader patterns of extra-​military violence imposed by the state against civilian populations. The latter category gained legal credibility after the Holocaust, which could not fit neatly into the typology of criminal violence encoded in the laws of war. The ghettoization, deportation, and extermination of peoples by the Nazi regime completely diverged from the ideas of “proportionality” or “excess” in military strategy, unrelated to warfare despite occurring under cover of World War II. The term had existed

13 

Examples of this framing include Judaism’s biological renderings under Nuremberg Laws in Nazi Germany (Heideman, 2017) and Indonesian killings of Timorese children to mitigate “future” political threats (Kiernan, 2009b). 14  The Soviet delegation sought other politically motivated changes, including equating genocide with Nazism and calling for the exclusion of forced labor and property confiscation from enumerated acts (Weiss-​Wendt, 2017). 15  Most notably, Spain’s high court charged former Chilean dictator Augusto Pinochet with genocide against political dissidents on the basis that they were a group of co-​nationals with similar characteristics (Sole, 1999; Roht-​Arriaza, 2000). Pinochet was ultimately returned to Chile and died before standing trial.

Genealogy and Etymology of Atrocity Crimes    35 in various forms prior to Nuremberg, being used by the Allied Powers in World War I to describe the Ottoman Empire’s crimes against the Armenians in lieu of military intervention or criminal proceedings (Schabas, 2000). However, ”crimes against humanity” did not exist in law until shepherded into the Nuremberg trials by legal scholar Hersch Lauterpacht. This category remains the only one of the three discussed here without its own convention, codified only as part of broader conventions and treaties. Like Lemkin, Lauterpacht was a Polish Jew whose legal outlook was rooted in lived oppression. He too saw a need to erode the norm of state sovereignty pertaining to large-​ scale persecution and its effects on international relations (Sands, 2017). The differences between crimes against humanity and genocide, however, stem from divergent legal and philosophical orientations to the manner of addressing such violence. Where Lemkin stressed the importance of group-​level protections as a solution to atrocities, Lauterpacht saw legally institutionalized group recognition as part of the problem, rooted as it was in nationalism and notions of group hierarchy. The Polish Minorities Treaty, as a biographically relevant example, had bred political resentment which led to increased oppression in the interwar era (Lemkin, 1933). Lauterpacht (1935, p. vi) saw any legalization of group identity as inappropriately political, asserting that “the well-​being of an individual is the ultimate object of all law.” In this vein, Lauterpacht framed crimes against humanity as atrocities committed within broader patterns of crime against large numbers of individuals, regardless of group affiliation or cultural impact. Lauterpacht’s vision won out in the short term, as the Nuremberg Tribunal levied convictions for crimes against humanity, but not genocide, against the Nazi perpetrators under their jurisdiction. This was likely due to this crime’s neater fit into existing legal precedent and facilitated by Lauterpacht’s position on the British prosecutorial team at Nuremberg. Over the long term, genocide has become the more resonant category in both academia and the wider cultural imagination despite the many issues foreseen by Lauterpacht and others at Nuremberg (Lang, 2016; Levene, 2008; Scheffer, 2006). Crimes against humanity are defined in Article 7 of the Rome Statute as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; Extermination; Enslavement. . . .” As with war crimes, the definition grew broader and the list of enumerated acts longer with the evolution of warfare and growing global intolerance for extra-​military violence. For example, the Nuremberg-​era requirement of nexus to international armed conflict was only abolished with the formation of the Yugoslav and Rwandan tribunals of the 1990s in horrified response to sub-​state atrocities (Meron, 1999). Struggles over the precise scope of crimes against humanity, and their differentiation from war crimes and genocide, are discussed in the upcoming section.

2.4. The crime of aggression It is worth briefly discussing the crime of aggression despite its relative lack of recognition. The crime of aggression is today defined in Article 8bis(2) of the Rome Statute as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.” This language was adopted in 2010, with the crime ratified by some States

36    Jeremy Kuperberg and John Hagan Parties to the International Criminal Court (ICC) in 2017 (Barriga and Grover, 2011). This recent progress followed decades of failed criminalization. Following World War II, Allied prosecutors made aggressive war the primary focus of the International Military Tribunals at Nuremberg and Tokyo. Numerous Nazi and Japanese officials were ultimately convicted of “crimes against peace,” but only with considerable controversy. Scholars and defendants alike stressed the legal maxim nullum crimen sine lege—​“no crime without law”—​to protest convictions for as-​yet uncodified crimes (Schabas, 2018). Jurists were likewise skeptical of the Tribunals’ narrow focus on Germany and Japan, which resembled “victors’ justice” in ignoring Soviet (Robertson, 2018) and colonial (Pal, 1948) aggression. Convictions notwithstanding, these complaints bore fruit in comparatively less punitive sentences and delayed criminalization of aggression thereafter (Bassiouni, 2018; Schabas, 2018). Contemporary issues with aggression surround its scope and enforcement. By defining aggression as “armed force by a state,” the ICC cannot prosecute contemporary phenomena such as terrorism, transnational conflict, proxy warfare, and cyberattacks (Sellars, 2018; Trahan, 2018). As such, this newly enforceable crime may already be out of date. Additionally, the crime remains unenforceable against non-​ICC states’ parties, including many of the world’s most powerful or bellicose actors. Criminal aggression has been discussed academically in relation to the U.S. (Hagan et. al, 2015) and Russian (Bassiouni, 2018; Sayapin, 2018) crimes in recent conflicts. However, legal indictments for similar cases remain unlikely as long as these states remain outside of the Rome Statute jurisdiction. It will be difficult to determine the operational scope or limits of this crime until charges are levied by the ICC or another court. At this point, the fate of aggression as a category of atrocity crimes remains uncertain.16

3.  Legal Debates over Atrocity Categories 3.1. Reshaping and expanding legal definitions in the post–​Cold War era Courts adjudicating atrocity crimes burst onto the scene in the 1990s and 2000s after decades of virtual nonexistence following Nuremberg and Tokyo (Meron, 1999; Sikkink, 2011). During the Cold War, both American and Soviet blocs pursued and supported military action in a manner indifferent to the corpus of laws and conventions accumulated in the early 20th century, while simultaneously controlling all institutions that might have held criminal actors accountable (Savelsberg, 2010). The collapse of the Soviet Union created much-​needed space for addressing mass atrocities, with attitudes toward international conflict and government repression no longer entirely subsumed under strategic spheres of influence. However, this end to bipolar geopolitics also produced conditions for an uptick in the commission of atrocities, as the breakup of Communist and neo-​imperialist blocs

16  For further reading on aggression, see The Crime of Aggression: A Commentary (Kress and Barriga, 2017) and Seeking Accountability for the Unlawful Use of Force (Sadat, 2018).

Genealogy and Etymology of Atrocity Crimes    37 released nationalist violence (Melson, 2011). Furthermore, the absence of a rival superpower did not push the United States toward humanitarian interventions any more strongly than it had previously in Pol Pot’s Cambodia or Saddam Hussein’s Iraq (Power, 2003), as legal solutions were more politically palatable than military commitments in conflagrations such as Rwanda and Bosnia (Hagan, 2003). This confluence of geopolitical change, nationalist violence, and discomfort with military solutions gave rise to courts such as the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and Special Court for Sierra Leone (SCSL) that had no forebears in the Cold War period despite its many instances of atrocity. Each of these courts had limited jurisdictions, empowered to prosecute a specific set of crimes within the period and territory of conflict.17 These new courts provided an opportunity to reassert accountability for atrocity crimes that had gone unpunished since the 1940s. However, such an opportunity was complicated by changes in the nature of warfare and justice between World War II and the 1990s. The International Military Tribunals at Nuremberg and Tokyo were administered by Allied victors to prosecute a clearly delineated group of defeated aggressors. For better or worse, the Allies were able to ensure convictions of relatively powerless antagonists despite complaints of “victor’s justice” (Peskin, 2005; Zolo, 2009). This ease of prosecution was assisted by the context of atrocities within “traditional” warfare among sovereign states. The crimes of World War II were committed by easily identifiable figures in traditional military hierarchies, with the evidence of orders and command responsibility such a bureaucracy entailed. The new postcolonial and post–​Cold War conflicts were different in nature: transnational and internal, military and paramilitary, fought among entities with varying levels of international legitimacy or entrenched bureaucracy (Hironaka, 2005; Kalyvas and Balcells, 2010). Such conditions made it difficult to assess the “organized” nature of atrocities necessary for the determination of crimes against humanity or genocide charges, delineate categories of victim and perpetrator groups, and pinpoint those individuals most responsible for the commission of atrocities (Owens et al., 2013; Rafter, 2016).18 Moreover, the Genocide Convention was rooted in the specific case of the Nazi Holocaust, as the state representatives involved sought to ensure that such a crime would apply only to the defeated parties of World War II (Chalk and Jonassohn, 1990). This set the bar for genocide convictions almost impossibly high: coordinated, industrialized killings of identifiable groups on a massive 17 The ICTR was empowered to prosecute genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and Additional Protocol II, committed in Rwanda and against Rwandan citizens in 1994 (Statute of the International Criminal Tribunal for Rwanda (adopted November 8, 1994) UNSC Res 955(1994), as amended (ICTR Statute)). The ICTY covered a similar set of crimes (plus war crimes committed in an international armed conflict) committed on the territory of the former Yugoslavia from January 1, 1991, until the Tribunal’s closure (Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted May 25, 1995) UNSC Res 827(1993), as amended (ICTY Statute)). The SCSL had jurisdiction over crimes against humanity, violations of Article 3 and Additional Protocol II, and domestic child-​targeted crimes in Sierra Leone starting on November 30, 1996 (Statute of the Special Court for Sierra Leone (adopted January 16, 2002) pursuant to UNSC Res 1315(2000 (SCSL Statute)). 18 Allegations of victors’ justice were still present in these later courts, but were often aimed at opposing parties in the same conflict, as in the ICTY (Parenti, 2002; Hoare, 2010; Bardos, 2013).

38    Jeremy Kuperberg and John Hagan scale, enacted by individuals with documented command responsibility. Those jurists interested in applying atrocity law to contemporary violence would need to reshape and expand these legal categories within the confines of existing law. The following sections explore two topics around which this reinterpretation would be necessary: group identity and sexual violence.

3.2. Determining group boundaries across criminal categories In exploring the historical development of legal terminology for atrocity crimes, we have framed genocide as group-​centered atrocity in contrast to individual-​centered war crimes and crimes against humanity. This delineation admittedly paints an incomplete picture of the importance of group identity in international law. Establishing boundaries among enumerated group identities has indeed been significant in determining whether acts are determined to fit any of the three relevant categories. Furthermore, debates over the meaning of “part” of a group in the customary definition of genocide seek to clarify when atrocities turn from crimes against humanity to genocide. Four examples from the ICTY and ICTR case law shed light on these debates over group boundaries. The Mucić et al. case at the ICTY demonstrates the importance of determining group boundaries even in war crimes trials.19 Zdravko Mucić and his co-​defendants, Zejnil Delalić, Hazim Delić, and Esad Landžo, were Bosniak and Croat guards charged with the torture and murder of Serb civilians at a detention camp in central Bosnia and Herzegovina. War crimes charges were based on the victims’ protected status as civilians occupied by a foreign party in an international armed conflict. The Mucić defense alleged that the conflict was not international in character, waged instead among sub-​national groups within Bosnia and Herzegovina. This argument to determine nationality based on legal state borders was ultimately rejected. Judges instead ruled with the prosecution, favoring a meaning of nationality based on the substance of relations between groups clearly engaged in nationally defined conflict. The international character of the armed conflict was bolstered by evidence that the Federal Republic of Yugoslavia maintained “effective control” over Bosnian Serb forces. This decision established that official citizenship status of direct perpetrators and victims can be less salient than a combination of substantive nationality and proxy support in determining the boundaries of group nationality in armed conflict. A similar debate was relevant to the Akayesu case in the ICTR, the first trial to enforce genocide charges based on the 1948 Convention.20 Given the unprecedented nature of the charges, the ICTR needed to legally determine that the Rwandan Genocide was, in fact, a case of genocide in order to convict the defendant for genocidal acts. As a result, the Trial Chamber was forced to assess the status of Tutsis as an enumerated group. Tutsis did not fit the traditional definition of a distinct ethnic group, sharing a language and culture

19 Case

Mucić et al. (Appeals Judgment) IT-​96-​21 (April 8, 2003).

20 Case Akayesu (Trial Judgment) ICTR-​96-​4 (September 2, 1998). Jean-​Paul Akayesu was bourgmestre

of Taba commune, a position roughly equivalent to mayor. ICTR prosecutors argued that he failed to prevent, facilitated, incited, and was present for genocidal attacks in Taba.

Genealogy and Etymology of Atrocity Crimes    39 with the Hutu perpetrators. However, the trial judges (para. 701) ultimately determined that “the intent of the drafters of the Genocide Convention . . . was clearly to protect any stable and permanent group.” Since Tutsis had been born into an inflexible group identity and legally identified as such, they fit this “stable group” criterion of ethnicity (Szpak, 2012). Genocide charges were permitted in the ICTR only through this more expansive reading of the Convention’s enumerated groups. The Jelisić case at the ICTY21 hinged on the vague “in whole or in part” component of genocide’s mens rea, serving as a test of the blurry boundary between crimes against humanity and genocide. Goran Jelisić, a low-​level Serb prison guard, was involved individually in the murder and torture of Croat and Bosniak detainees in the Bosnian town of Brčko. Prosecutors justified genocide charges against Jelisić by noting that he “systematically killed Muslim detainees . . . introduced himself as the ‘Serb Adolf,’ . . . and often informed the Muslim detainees and others of the numbers of Muslims he had killed.”22 Judges rejected the idea of a one-​man genocide, dropping the charge because Jelisić alone could not have realistically had the “intent to destroy” the given group even “in part.” The thirteen murders tied to Jelisić surely represented a small part of some group, to say nothing of the 150 murders of which he reportedly boasted. However, judges noted that he neither murdered a large enough number of Muslims to imply an attempt to wipe out the entire group, nor strategically killed members of the group whose deaths would have had a disproportionate effect on the group’s survival “as such.”23 With this verdict, the judges provided an answer to the question of when “part” of a group crosses the threshold from crime against humanity to genocide on both a qualitative and quantitative basis. This conclusion was tested in the Krstić case, the first in the ICTY to produce a genocide conviction.24 Radislav Krstić was the Chief of Staff of the Bosnian Serb Army corps responsible for the massacre in Srebrenica in July 1995. Though Bosniak Muslims were widely understood to be the target of the killings, the Drina Corps targeted only males of a certain age within a bounded geographic area. Krstić’s defense asserted that genocide charges were unfounded—​an enumerated group had not been targeted, but rather a gender-​limited group, within a small geographic area, within a broader ethnic group. Based on the precedent set by Jelisić, however, this constituted a substantial part of the enumerated group. In a primarily patriarchal context, the elimination of the community’s political and civic male leaders, combined with the forcible expulsion of its women, rendered the group unable to exist “as such.” The Krstić trial paved the way for further genocide convictions on the basis of “partial” intent.25 In so doing, it further clarified the boundary between the “systematic or widespread” violence indicative of crimes against humanity and the attempted group destruction necessary for charging genocide.

21 Case

Jelisić (Trial Judgment) IT-​95-​10 (December 14, 1999). Jelisić (Indictment) IT-​95-​10 (July 21, 1995), para. 17. 23  Importantly for later cases, judges noted that the geographically bounded nature of Jelisić’s target group did not factor in their decision to drop genocide charges. Case Jelisić (Trial Judgment) IT-​95-​10 (December 14, 1999), para. 83. 24 Case Krstić (Appeals Judgment) IT-​98-​33 (April 19, 2004). 25 Case Karadžić (Trial Judgment) IT-​95-​5/​18 (March 24, 2016); Case Mladić (Trial Judgment) IT-​09-​ 92 (November 22, 2017). 22 Case

40    Jeremy Kuperberg and John Hagan

3.3. Categorizing rape in atrocity crime Sexual violence in atrocity crimes faces similar boundary issues to those of group identity. Moreover, it has historically faced a legal legitimacy deficit relative to murder and other non-​gendered forms of violence.26 Both research and law, such as the Rome Statute of the ICC, demonstrate the wide variety of criminal acts and gendered actors within this overarching category. For example, sexual crimes perpetrated against male victims in conflict have received increasing scholarly attention in recent years (Sivakumaran, 2013; Oosterveld, 2014), while in criminal law, the SCSL determined that forced marriage could be charged as a crime against humanity in addition to the act of rape.27 Still, the category of sexual violence in atrocity crime is overwhelmingly perceived and prosecuted as rape perpetrated by males against female victims (SáCouto and Cleary, 2009; De Brouwer, 2015). This narrower phenomenon is therefore the focus of this section on categorical boundary issues. Despite a long history of prohibitions in the 1864 Lieber Code or the 1949 Fourth Geneva Convention, for instance, rape in armed conflict was not designated a “grave breach” of IHL until the post–​Cold War era (Meron, 1999).28 The Yugoslav and Rwandan tribunals of the 1990s saw the first explicit criminalization of rape as an atrocity crime, with both statutes rendering the act enforceable either as a war crime or a crime against humanity.29 Both tribunals were then tasked with further defining the legally actionable actus reus and mens rea of sexual violence against the protests of defendants arguing to limit its criminal scope. The categorization of rape as a war crime is the most straightforward of the three categories, as the 1949 Fourth Geneva Convention allowed universal jurisdiction over individual instances of wartime rape against protected persons as a war crime. Still, the 1990s tribunals faced similar questions to those faced by countless domestic courts, including definitions of consent, the range of constitutive acts, and the liability of those coercing or serving as accessories to rape. The customary international legal definition of rape only solidified through judicial expansion in decisions such as the Furundžija case at the ICTY,30 and the Akayesu case at the ICTR,31 gradually taking on more varied enumerated acts and a progressive definition of consent (Ellis, 2006). Framing acts of rape as crimes against humanity requires more extensive proof on a broader scale. The Kunarac et al. case at the ICTY was the first case to succeed in convicting perpetrators of rape as a crime against humanity.32 The ICTY charged Dragoljub Kunarac and seven other Serb defendants with crimes against humanity and war crimes committed

26  For a detailed discussion of investigations and prosecutions of sexual violence as atrocity crime see Chapter 27 by Kim Thuy Seelinger and Elisabeth Wood in this volume. 27 The AFRC case (Trial Judgment) SCSL-​04-​16-​T (June 20, 2007). 28  This was partially due to another Nuremberg-​era compromise in service of Soviet acquiescence, as the USSR infamously perpetrated mass rape against German and Nazi-​allied populations during World War II (Neier, 1998; Burds, 2009). 29  This inclusion was partially driven by a global feminist movement mobilized by media evidence of rape camps and forced pregnancies in the Yugoslav war (MacKinnon, 2005). 30 Case Furundžija (Trial Judgment) IT-​95-​17/​1 (December 10, 1998). 31 Case Akayesu (Trial Judgment) ICTR-​96-​4 (September 2, 1998). 32 Case Kunarac et al (Trial Judgment) IT-​96-​23 and 23/​1 (February 22, 2001).

Genealogy and Etymology of Atrocity Crimes    41 after the Serb takeover of Foča in eastern Bosnia.33 The prosecution’s discovery of at least six facilities in the Foča area for detaining enslaved victims, with active participation of military officials, and combined with the corroboration of survivors with regards to different locations and perpetrators, succeeded to prove the existence of a systematic policy of rape beyond a mere accumulation of individual crimes. This was the first of several rape cases reaching the level of crime against humanity, underscoring the prevalence of sexual violence as a weapon in contemporary warfare. Unsurprisingly, the most fraught debates arise over rape as a genocidal act. As with other debates over genocide, these relate to both ambiguous legal thresholds and moral concerns. However, the concept of rape as an act of genocide is complicated by the more obvious connection of group destruction to murder than to sexual assault. Like genocidal murder, genocidal rape must fulfill both the mens rea (“intent to destroy, in whole or in part,” one of the enumerated groups) and actus reus of a codified crime. The customary definition of genocide provides a blueprint for the ways in which rape can be categorized as genocidal. Various activists and legal actors have thereby charged rape as genocide based variously on: rape as a means of murder (enumerated act (a) in the Genocide Convention); physical or psychological injury (b); sexual mutilation as preventing reproduction within an enumerated group (d); and forced impregnation of enumerated group members in order to alter the identity of subsequent generations (e). The Akayesu judgment of the Rwandan tribunal34 was not only the first genocide trial but also the first to classify rape as an act of genocide (Ellis, 2006). Due to its unprecedented nature, the judges in Akayesu justified this categorization in painstaking detail, proving not only that rape was used selectively against an ethnic group marked for destruction, but also as an effective tool to enact both physical and psychological destruction of victims and their families (Russell-​Brown, 2003). Subsequent ICTR trials demonstrated the role of publicly staged assaults in eroding family and community ties,35 while academics and journalists have discussed Hutu militias’ intentional transmission of HIV through rape (Donovan, 2002; Itano, 2002). Whereas relevant cases in the ICTR included evidence of rape as a tool of murder within a context of legally classified genocide, attempts to classify rape as a genocidal act in more unsettled contexts often focus on psychological and reproductive effects of the crime. Primary arguments here involve the use of rape in the Yugoslav Wars to intentionally impregnate Bosniak and Croat women with Serb children (Allen, 1996), and to terrorize or humiliate victims to the point of suicide (Fein, 1999). Similarly, the Darfur case saw Arab militias seeking to “change the color” of black Darfuri families and strategically leave victims alive to spread stigma and fear (Kaiser and Hagan, 2015, p. 99). Evidence of these horrific patterns across cases has solidified the inclusion of rape within customary legal codes on genocide, affirmed most strongly by the UN Security Council’s Resolution 1820 (2008).36

33  Per the indictment: “The Serb forces separated men and women and unlawfully confined thousands of Muslims and Croats in . . . detention facilities or kept them under constructive house arrest. During the arrests many civilians were killed, beaten or subjected to sexual assault.” Case Kunarac et al. (Indictment) IT-​96-​23-​I (June 19, 1996) para.1.2. 34 Case Akayesu (Trial Judgment) ICTR-​96-​4 (September 2, 1998). 35 Case Nyiramasuhuko et al. (Appeals Judgment) ICTR-​98-​42 (December 14, 2015). 36  UN SC Res 1820 (2008) on Women, Peace and Security (adopted June 19, 2008) UN Doc S/​RES/​ 1820.

42    Jeremy Kuperberg and John Hagan These analyses demonstrate that lines between categories of atrocity crime are often blurry, dependent in practice upon jurists’ interpretation and openness to shifting norms. The legal and academic communities have not reached final consensus around either group boundaries or the concept of genocidal rape to this point. However, it is important to remember that atrocity crime is still a relatively new legal concept. In this nascent context, the steady judicial elaboration of its more unsettled components indicates promise for a future of general conceptual understanding.

4.  Terminological Debates Like law, social-​scientific scholarship was relatively quiet on the subject of atrocity crime during the Cold War era. While more prolific research on the topic has emerged since the 1990s, this work has disproportionately focused on genocide, often isolating the “crime of crimes” from other forms of political violence (Finkel and Straus, 2012; Karstedt, 2013). The recent explosion of genocide scholarship can be described as “an endless quest for consensual definition” (Owens et al., 2013, p. 71), marked by numerous variations on the concept. Work in this vein often examines cases that do or do not fit into scholars’ particular categories of genocide, either reserving inclusion for “consensus” genocides or expanding the legal definition in order to compare a higher number of cases. Chalk and Jonassohn (1990) produce a prime example of the latter effort. The authors critique the political motivations behind the UN definition, which they declare to be useless for scholarship. They proceed to introduce and justify a new definition of genocide, which defines a group as any collection of individuals defined as such by the perpetrators in order to subvert debates over immutability and constructed identity. This subtle tweaking of criminological scope produces a larger sample of genocides for analysis, ranging from ancient city-​state annihilations to killings of state-​defined communists or kulaks during the Cold War. A majority of these analytically useful cases would be excluded under the Genocide Convention, proving the importance of the authors’ plea to separate scientific and legal categories. Martin Shaw pushes beyond these and other scholars who are critical of the legal definition of genocide by exploring how such scholars still utilize a legal logic in their enumeration of specific genocidal acts and victim groups. Shaw (2007, p. 12) seeks to return to Lemkin‘s original goal of developing a “general class of violent actions,” separating the sociological concept from codified law. As such, he outlines an integrative concept defining genocide as the intentional destruction of groups’ “real or putative social power” (p. 154), physical or otherwise. Shaw argues that narrower sub-​concepts such as ethnic cleansing, politicide, and gendercide dilute the rhetorical and intellectual power of “genocide.” He further utilizes this integrative, general framing to highlight genocide’s status as a normal phenomenon by linking it to other forms of war and conflict. Finally, he argues that his definition might free military and political strategists from the constraints of legalistic standards of proof when seeking to intervene in cases of targeted mass violence. Other scholars intentionally use labels other than “genocide” or “crimes against humanity” when conducting comparative work. This allows them to include cases according to more scientific and less legalistic or political criteria. For example, Rummel (1997) uses

Genealogy and Etymology of Atrocity Crimes    43 “democide,” defined as any murder of citizens by government, to determine that democracies are less likely than other regime types to target civilians. Mann (2004), meanwhile, rebukes Rummel’s thesis using the term “murderous ethnic cleansing,” asserting that large-​scale state violence is rooted in democratization itself. Other comparative scholars have utilized terms such as “state-​sponsored mass murder” (Krain, 1997), “politicide” (Harff and Gurr, 1988), or “state crime” (Rothe and Mullins, 2010). These alternatives allow scholars to overcome the constraints of legalism, but do not significantly shift the standard conception of genocide as specifically enumerated large-​scale killing perpetrated by the state.

4.1. Conceptual disruptors Scholars have not only produced new labels for atrocity crimes in order to achieve greater comparative precision. Unlike the scholars just cited, conceptual disruptors meaningfully push the boundaries of atrocity categorization for both academic and political ends. Rather than making subtle definitional changes to existing legal categories, these figures break down these categories in order to enable improved understanding of atrocities and more viable interventions to halt their commission. These actors are often motivated by their peripheral locations within atrocity scholarship, allowing for unique perspectives on the topic. Anthropologist Christian Gerlach (2010) utilizes a culturally holistic research lens to shift the unit of analysis from events of atrocity to “extremely violent societies.” Gerlach sees “genocide” as artificially limited based on its assumption of unidirectional violence and focused causality. By studying historical and spatial contexts, he rejects both straightforward explanations of mass violence and theories that treat genocides as exceptional, ahistorical occurrences. While his disaggregation of atrocity contexts precludes simple interventions that would prevent or stop mass violence, it may allow for stronger capacity to predict which societies are likely to experience mass violence. Furthermore, it pushes back against ideal-​typical conceptions of genocide rooted in the term‘s specific early framing around the Holocaust (Karstedt, 2013). Along with academic interventions, other disruptors have emerged to demonstrate that new terms can have implications for preventative policy. The term used in the title of this volume—​“atrocity crimes”—​is a striking example of this type of intervention. Like many others, David Scheffer sees the legal category of genocide as unduly narrow based on arbitrary criteria. In his perspective, however, a conceptual shift is necessary for moral and political reasons. He draws on his own experiences as U.S. Ambassador-​at-​Large for War Crimes during the period of the Rwandan and Yugoslav atrocities when introducing the new concept. Scheffer (2006, p. 229) describes a policy-​crippling “genocide factor”: countries with the capability to intervene in cases of mass killing usually refuse to do so without a legal determination of genocide, allowing state leaders to minimize military risk and political backlash. States with an obligation to protect populations from atrocities37 have seemingly

37  Responsibility to Protect (R2P) is an international norm adopted by UN member states in 2005. For more, see the Oxford Handbook on the Responsibility to Protect (Bellamy and Dunne, 2016) and Chapter 19 by Alex Bellamy in this volume.

44    Jeremy Kuperberg and John Hagan exploited genocide’s legal specificity to justify political inaction. In this way, the Genocide Convention may actually have adverse effects on political will and civilian protection. Scheffer sees a more flexible category as a potential solution to the political consequences of legalism. “Atrocity crime” aggregates phenomena where legal terms disaggregate, combining war crimes, crimes against humanity, and genocide into an inclusive category distinct from any specific criminal liability (Karstedt, 2013). Such aggregation removes the pressure to determine the legal confluence of genocide’s specific mens rea and actus reus beyond reasonable doubt. Scheffer (2006, p. 238) still defines atrocity crimes: The crime must be of significant magnitude, meaning that its commission is widespread or systematic or occurs as part of a large-​scale commission of such crimes. The crime must involve a relatively large number of victims . . . impose other very severe injury upon noncombatant populations . . . or subject a large number of combatants or prisoners of war to violations of the laws and customs of war.

However, this definition is sufficiently flexible to encompass any large-​scale, extra-​military violence. By relying on “atrocity crime” rather than “genocide” in policy discussions, governments would be attuned to a broader spectrum of violence at an earlier stage. The result could be more interventions in international crises earlier in the process of destruction. Most who promote terms other than “genocide” for either empirical or theoretical reasons are not seeking to abolish genocide’s legal standing. The primary implication of Scheffer’s intervention for courts of law would be to describe the entire range of crimes under their jurisdiction in a politically useful manner. Certainly, there are legal philosophers who do oppose the concept of genocide on the merits of its very collectivizing definition, much as Lauterpacht did (Boghossian, 2010; May, 2010). Instead, the conceptual disruptors discussed in this section disentangle terminology developed for a legal purpose from its political or academic influences. Where critical legal scholars might protest the politicization of international courts (Arendt, 1963; Vinjamuri and Snyder, 2015), these conceptual disruptors seek to avoid the inverse: a legalization of politics and academia.

5.  Conclusion: Lineages of Conceptual Innovation In this chapter, we have contextualized debates around categorical boundaries of atrocity crimes by tracing the etymology and genealogy of war crimes, crimes against humanity, and genocide. War crimes developed as a legal category across centuries out of concern with extra-​military violence in conflict. The other categories emerged in reaction to the Holocaust and represent the individualist and groupist perspectives for addressing mass atrocity. The production of laws and customs of war by figures as disparate as medieval kings, legal scholars, and public health actors helped to build an international framework within which modern legalists could address the scourge of mass atrocity. This institutionalization of legal culpability for state violence bred both legal and scholarly debate over categorical scope, leading some to call for new categories altogether.

Genealogy and Etymology of Atrocity Crimes    45 Taking the long view, it is clear that scholars such as Scheffer and Gerlach share a lineage of legal activism with the very pioneers whose categories they critique. Like Lemkin, Scheffer’s “atrocity crime” seeks better protection for potential victims and a stronger impetus for international responses to violence. Both scholars recognize the potential of new legal and political terminology to achieve this end. Like Lauterpacht, Gerlach is uncomfortable with the totalizing nature of group classification often assumed in research on genocides. Both use terminology designed to prevent the very reification of boundaries that can lead to atrocity. We encourage more research that would recognize the effect of legalistic boundaries on research and policy, in the vein of these conceptual disruptors. Scholarship in which international responses to “consensus genocides” are placed in conversation with responses to other forms of political violence (including other atrocities, but also civil war, counterinsurgency, etc.) will also be useful in understanding the connections among legal terminology, policy, and criminal accountability. The history of international responses to atrocity crime has proven that moral and political perspectives on atrocities are inextricably intertwined with the terms we use to describe them.

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CHAPTER 2

On the Empiri c a l St u dy of Atro cit y C ri me s Catrien Bijleveld 1.  Introduction This chapter discusses research methods for atrocity crimes. One might wonder whether such a chapter is necessary in this volume. As the topic under investigation is a specific type of crime, could the editors not simply have referred to any textbook on criminological research methods? However, as this chapter will discuss, atrocity crimes, the context in which they are committed as well as their aftermath, generate a constellation in which standard criminological and general social science methods and techniques cannot always be employed. As this chapter will show, differences may emerge, first, because atrocity crimes are so deadly: in the study of atrocity crimes, we encounter many epidemiological and public health methods, in which mortality is used as a proxy for prevalence, the number of crimes committed. Second, atrocity crimes occur generally against the backdrop of conflict, where government(s) may be involved, and where vital statistical data may be suspect or lacking. Third, data collection in situations of conflict may be dangerous and therefore compromised methodologically in various ways. Last, atrocity crimes are rare occurrences in unique and idiosyncratic constellations of conflict, in which it is hard to make causal inferences according to regular social science methodological standards. Before going into these issues, this chapter will first briefly outline the four domains of criminological interest, namely, prevalence, etiology, reaction, and victims, and sketch a number of particular methods used in empirical criminological research within these domains. Next, it will discuss methodological particularities when the object of study is not ordinary crime, such as single-​incident murder or theft but rather atrocity crimes. The chapter ends with a summary and some recommendations for future research. Much of this discussion will be cursory and conceptual, using examples, to the detriment of nuance and, at times, exactness. This chapter builds on Bijleveld (2019), that discusses a number of these examples too, generally more lengthily and substantively. I give pertinent

52   Catrien Bijleveld references to specific methodologies and techniques, in which the reader can generally find a more thorough, extensive, and in-​depth treatment and discussion of the methods.

2.  Criminological Domains of Study: The tesseras criminologica The field of criminology is generally subdivided into four domains, in which different sets of questions are asked. Criminologists first and foremost want to know what happened: what crimes were committed, how many, by whom, when? How many people were victimized and what was the damage? Where were these crimes committed, and what was their spatial distribution? This first domain is referred to as prevalence. Questions are mainly quantitative: researchers generally describe numbers, such as a homicide rate, or the degree of clustering of crimes in certain neighborhoods. The second domain is referred to as etiology. Here, questions focus on the causes of crime, as well as understanding relationships between variables and characteristics that influence crime and crime rates. Etiology examines questions such as, Why does crime cluster in neighborhoods? What personality characteristics and traits are associated with a violent criminal career? Why are people of color and other minority communities overrepresented in the criminal justice system? Do employment and/​or marriage cause individuals to refrain from criminal offending? Within this domain, we encounter in full force the multidisciplinary nature of the criminological research enterprise, as crime can be explained from many different disciplinary vantage points. As the questions just posed illustrate, explanations for crime can be sought at the level of the individual (it may be an offender’s innate characteristics that predispose them to offending), at the level of a neighborhood (it may be neighborhoods with certain characteristics where crime occurs more often), or at the national (or supranational) level (societal institutions, norms, and resource availability may influence crime patterns). But variation also emerges because explanations may originate from different disciplines: psychological, sociological, anthropological, or economic theories are all used to explain the occurrence of crime. Within this domain we often find qualitative methods employed, methods that are much better equipped than quantitative methods to investigate and reveal the nature of criminal behavior within specific social settings and contexts, or to understand the motives people may have (had) for their behavior. The third field of study within criminology is referred to as reaction: here, the responses that follow crime are studied. These responses may be formal, such as arrest, conviction, or detention; or informal, such as exclusion from a community, broken relationships and marriages, or loss of employment. Questions may be answered using qualitative or quantitative methods. In addition to social science disciplines mentioned earlier, such as sociology, empirical legal scholarship is prominent here, as is social psychology. Lastly, criminologists study victims. Here, criminology is interested in the impact of crime on victims, victims’ responses and adaptation after the crime, revictimization, and intergenerational transmission of trauma and resilience. The wider ramifications of crime are part and parcel of this domain, such as the impact of transnational organized crime on

On the Empirical Study of Atrocity Crimes    53 the business climate. Again, questions can be answered using qualitative or quantitative methods. A wide variety of scholars focuses on questions within this domain, ranging from economists to psychiatrists and anthropologists.

3.  Methodological Particularities in the Study of Crime The scientific study of crime is arguably fraught with more methodological hurdles than the study of other social phenomena. This is, first, because crime consists of behavior for which you may be punished. Those who commit crimes may be less than eager to have their behavior observed or to share facts on their norm-​transgressing with outsiders. Second, perpetrators may be ashamed of their behavior: while burglars have been reported to put particular pride in their clever entry into fortified mansions, perpetrators are less likely to brag about sexual crimes or about robbing vulnerable people. Third, perpetrators, in general, have nothing to gain from participating in scientific research on their criminal behavior. Why would “successful” burglars, drugs smugglers, or sex offenders expose the frequency with which they offend, their modus operandi, or the manner in which they circumvent the authorities? All in all, offenders do not appear to have much to gain from participating in research and may even put themselves at risk by discussing their criminal actions. This is in stark contrast to studies into, say, the precursors to some disease, or its treatment. Even if, in the latter example, patients may not themselves gain from devoting time to participate in a survey on their eating habits, exercise patterns, or anything else that may be scientifically relevant, perhaps future patients will. Patients who suffer a relapse after treatment are likely to re-​visit their consulting physician as soon as they can. Those who study crime may expect the opposite: offenders will attempt to hide their (criminal) behavior rather than expose it. A second particularity emerges in the study of reactions to crime. Many reactions are imposed by governmental bodies: judges deliver sentences, therapists may treat offenders for disorders, and interventions, such as employment training, are supervised by the probation service. Now, if we would like to find out whether these interventions are effective, we are faced with the methodological complication that it is not the researcher who metes out these interventions. This is in stark contrast to the methodological design-​standard, where researchers have control over who receives an intervention (or not), and can form a control group. Take, for a fairly simplified example, a study of the effectiveness of medicines. Scientists test medicines by distributing them to a group of patients, of which one randomly chosen half receives the medicine to be tested, and the other random half a placebo, preferably administered by staff who also do not know whether the patients are receiving the real medicine or the placebo. This is what is called a double-​blind randomized controlled trial (RCT), or more loosely an experiment. Those in the placebo group serve as “controls” or “counterfactuals” for the experimental respondents: any improvement in symptoms in the experimental group is gauged against changes in symptoms in the control group. Such an experimental design is the gold standard in causal inference (Shadish et al., 2002).

54   Catrien Bijleveld Such a design is difficult to employ if we would want to study whether imprisonment reduces the likelihood of re-​offending, or whether employment training programs increase the likelihood that ex-​offenders find jobs. Scientists cannot randomly allocate convicts to imprisonment or some other sanction, as this is a judge’s job, and, what is even worse from a methodological point of view, judges are supposed to tailor the sanction to the particularities of the case, so to administer it as non-​randomly as possible. Also, it might be regarded as unethical to withhold interventions, such as employment training, from ex-​ offenders. While these examples are stylized and perhaps overly simplistic, they show that studying the impact of interventions on crime and perpetrators is generally fraught with more methodological complications than in other disciplines. In criminology, it is rare to find experimental designs, and many studies are, by necessity, what is called “observational” with associated complications in causal inference. One could, however, also argue that criminologists are at a particular advantage compared to other social scientists, as data on crime and law enforcement are routinely collected by criminal justice authorities. The police have data on crimes and suspects reported by victims and bystanders, the public prosecutor has data on defendants, and court cases have data on the modus operandi of a criminal, victim statements, and may even contain extensive transcribed telephone taps, etc. It is often reported that, in prison, most inmates are generally bored and willing to be interviewed. However, not all crime becomes known to the police, and the police do not record all crime. Crimes that have been committed but do not appear in official statistics are called the dark number. The dark number is a major problem with ‘official’ governmental data: they capture only a part of the phenomenon we are interested in. In addition, the crimes that do become known and those perpetrators who are apprehended, are likely not a random subset, but an unrepresentative selection of all crimes and perpetrators. Regardless of these difficulties, the incomplete and biased police and criminal justice system (CJS) data are an often used and readily available source for criminologists. In addition to CJS data, many criminologists survey members of the population to arrive at better estimates of the prevalence of crime. Criminologists employ two types of surveys. In the first, a representative sample of the population is selected and asked whether they were victims of certain crimes over a certain recall period, such as a year. This is called a ‘victim survey.’ Extrapolating the percentage victimized in the sample to the population gives an estimate of the total volume of crime over the recall period. Comparing outcomes of such victim surveys over consecutive years enables criminologists to investigate trends. Victim surveys are generally considered to give a better indication of the prevalence of crime than police data.1 The second type of survey studies, again, a representative sample out of the population, but now asks about perpetration: here respondents are asked whether they stole something, used public transportation without paying, vandalized something, etc. during a certain recall period. Similar to a victim survey, the results of such perpetrator surveys—​euphemistically called ‘self-​report surveys’—​can be extrapolated to generate estimates for the total population.2

1 

For a description of the International Crime Victims Survey (ICVS) see van Dijk et al. (2014). Such surveys have been conducted very often with juveniles. For a description of the International Self Report on Delinquency (ISRD) survey, see He and Haen-​Marshall (2010). 2 

On the Empirical Study of Atrocity Crimes    55 Both victim and self-​report surveys are not without their issues, however. Firstly, only victims who are able to report can be interviewed: in general, victim surveys fail to capture data on very young victims and people who cannot be interviewed, and on so-​called ‘victimless crimes,’ such as drugs dealing and speeding. Secondly, not all victims remember that they were victimized, regard themselves as victims, or place their victimization event in the time window measured by the survey. Additionally, some victims do not wish to speak about victimization. For self-​report surveys, the fact that perpetrators may run the risk of detection or feel shame may decrease their willingness to disclose offending. Therefore, victim and self-​report surveys using “direct questioning” methods have clear disadvantages. Some surveys have employed special, “indirect questioning” methods that shield respondents from risk or shame. These surveys are designed in such a manner that victims or perpetrators do not need to reveal that they themselves committed a crime or were victimized, but the researcher can nevertheless derive sample estimates of prevalence.3 When respondents are expected to be unwilling to reveal whether they have been victimized or have perpetrated, criminologists have other “indirect” methods at their disposal. One may, for instance, estimate the volume of illegal drug consumption from the concentration of those drugs in sewage or river water.4 The incidence of burglary may be estimated from claims submitted with insurers, or the prevalence of knife crime from the number of people brought in with stab wounds at emergency wards.5 One statistical method important in studying the prevalence of atrocity crimes is a method adopted from biology, first proposed as early as 1896 (Petersen, 1896), to estimate the size of the population of plaices, a type of fish. This method can be used to estimate the total volume of crimes or victims from a comparison of the overlap in two “lists” drawn similarly from a population. We illustrate the method using an example. Suppose that we wish to estimate the number of fish in a lake. We are obviously unable to capture all the fish through conventional methods, but what if we catch a small number, say, ten? We tag all of our caught fish and return them to the lake. Shortly afterward, we re-​do the angling: again, we catch ten fish. Of these ten fish, one turns out to have a tag and was therefore part of our first catch. We may now estimate that the total population of fish numbers is 100. While perhaps not immediately computationally obvious, this is intuitively clear if one

3  One such method is called randomized response (Warner, 1965; Greenberg et al., 1969; for an overview see Lensvelt-​Mulders et al., 2005). A second, easy-​to-​administer, indirect questioning method is the so-​called unmatched count technique (Raghavarao and Federer, 1979; Miller, 1984; for an overview, see Kuha and Jackson, 2014). Other indirect questioning methods (called network scale-​up methods) do not ask respondents whether they themselves were a victim or a perpetrator of a certain crime, but rather how many people they know were victimized and/​or committed crimes. Killworth et al. (1998) used this method to estimate the number of women who had been raped over a period of one year. 4  European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) (2020) “Perspectives on Drugs: Wastewater Analysis and Drugs: A European Multi-​ city Study.” Available at: http://​ www.emcdda.europa.eu/​system/​files/​publications/​2757/​POD_​Wastewater%20analysis_​update2020.pdf (Accessed: April 12, 2020). 5  Since 2000, the U.S. National Electronic Injury Surveillance System (NEISS) collects nationwide estimates of injuries, among which are injuries from violent crime, based on a nationally representative sample of hospitals in the United States and its territories. See Centers for Disease Control and Prevention (2003) Web-​based Injury Statistics Query and Reporting System (WISQARS). Available at: https://​www.cdc.gov/​injury/​wisqars/​index.html (Accessed: April 12, 2020).

56   Catrien Bijleveld imagines having to complete nine more catches to recapture all the original tagged fish. This method, capture-​recapture, has been employed to estimate the number of undocumented immigrants, or the prevalence of domestic abuse (see for an overview Bohning et al., 2017). Stringent assumptions apply, notably the assumption that capture the second time is independent of capture the first time (meaning that fish do not learn), but, as we will see later, extensions to the method have been able to accommodate violations of some assumptions.

4.  Research Methods in the Study of Atrocity Crimes In this section, I will discuss research methods for atrocity crimes. We will again follow the four domains of prevalence, etiology, reaction, and victims. A few things can be said at the outset. First, as will become apparent, many studies into atrocity crimes employ standard social science methodologies, and this is specifically true for studies regarding etiology and reaction. We already noted that questions examining prevalence are inherently quantitative, and within that domain, we therefore encounter mostly quantitative methods. In the domains of etiology, reaction, and victims, however, researchers employ a mix of qualitative and quantitative methods. As virtually all research on atrocity crimes is observational, causal inference is generally difficult. Researchers of atrocity crimes have therefore employed numerous ingenious methods to find “controls” to compare the “experimental” units against. Control units are otherwise comparable units of people who did not exhibit the behavior (for example, killing), or did not undergo the intervention (for example, testifying at a tribunal). Both quantitative and qualitative methods have regularly employed case-​control methods for this. For example, if we want to know what factors contribute to certain rebel groups committing sexual violence, we could compare those rebel groups committing sexual violence with rebel groups which did not commit sexual violence and see in what aspects they differ. As a second example, if we want to know whether a protracted conflict negatively impacted schooling levels, we can compare regions where the conflict occurred with regions without conflict, or we may in the absence of such “control regions” gauge schooling levels in years with conflict against schooling levels in years without conflict. The years without conflict are now the controls for the years with conflict. In some examples, researchers have even statistically constructed control units. Standard social science methods are often found in the study of etiology and reaction. In the study of prevalence, however, we do regularly find methods that differ from the standard social science toolkit, as also happens in research on the impact of atrocity crimes on victims and affected societies. Studies may end up with a larger uncertainty regarding estimates, because atrocity crimes generally occur in or after periods of conflict, during which vital infrastructure has broken down, making standard demographic statistics compromised or missing, and during which fieldwork is hazardous for researchers and respondents alike.6 6 

See Chapter 21 by Helge Brunborg in this volume.

On the Empirical Study of Atrocity Crimes    57

4.1.  Prevalence Atrocity crimes often result in massive mortality. For estimating mortality, a standard criminological tool for assessing prevalence, the victim survey, cannot be used. Also, during atrocity crimes (and the period thereafter), population registration systems have generally broken down and there may be mass population upheaval, causing governmental statistics to become an invalid source of data. When governments themselves are complicit in the crimes committed, the police may even attempt to hide the crimes committed and not record them (causing a “double” dark number). In assessing mortality, two types of methods can be distinguished: methods that involve the tallying of deaths, and methods in which mortality is estimated. Tallying methods count the number of deaths, implying that full name, date of birth, gender, occupation, and other distinguishing properties are known. The Bosnian Book of the Dead (Ball et al., 2007) is an example of such a tally of mortality for the Bosnian conflict. It should be noted that even though in this book the list of names may appear nearly final, the authors still caution that the number of victims should be regarded as a (lower-​end) approximation. Tabeau and Bijak (2005) earlier reviewed a number of estimates published and noted how early estimates of mortality in the Yugoslavian conflict hovered between 25,000 to 329,000 deaths. Compiling lists of names from various sources, and after checking and de-​duplicating them, Ball and his co-​authors (2007) arrived at an estimate of 107,395 deaths for the Bosnian conflict, of which 67,530 were war-​related. Tallying has become increasingly feasible with the advent of the internet and social media. The Iraq Body Count project is an early example of such tallying from corroborated newspaper reports of civilian violent deaths after the US invasion of Iraq (Sloboda et al., 2013). For the Syrian conflict, numerous lists of deceased have been maintained (see Price et al., 2013). Guha-​Sapir et al. (2017) analyzed a data set compiled by an NGO that had tracked and documented human rights violations in the armed conflict in Syria from 2011 onward. In this database, there was complete information on date and place of death, demographic group of the victim, whether the deceased had civilian or combatant status, and cause of violent death. The authors reported how, after cleaning the data pertaining to non–​ government-​held areas, 143,630 recorded deaths remained from March 2011 to December 2016. It is to be expected that such so-​called passive surveillance (a term stemming from public health literature denoting the capturing and analysis of data collected by surveillance agencies, such as health care centers and hospitals) will, aided by new technologies, become an increasingly prominent data source for assessing the prevalence of atrocity crimes. A second type of methods are those that estimate mortality in conflict. Here, more often than not, the names of the deceased are unknown. The methods employed here range from very simple to highly statistically advanced. The most basic method is a heavily simplified version of a long-​standing demographic instrument for population projection, the cohort component method. Under this method, the projections of births, deaths, and migration are derived for each age group in a population; their combination generates a projection of total population size. The simple method does not make these separate projections of births, deaths, and migration for different age groups, but instead works with just one starting population size (popstart) and just one population growth rate (the outcome of the combined effects of births, deaths, and migrations) before the conflict erupted. For

58   Catrien Bijleveld estimating mortality in a region where atrocity crimes were committed, it then takes that region’s population size before the conflict, and computes how large the population would have been at the time the conflict ended (pôpend), extrapolating using pre-​conflict population growth figures. Next, it compares this “counterfactual” population size (pôpend) with the actual population size (popend). The difference between the two is regarded as the population loss and therefore mortality. This method is crude because it simply (linearly) extrapolates population growth and allocates the entire difference between the counterfactual and real population size as mortality due to atrocity crimes (which is hazardous, for instance if part of the population has fled abroad). In addition, the method is “shaky” in the sense that, in general, real population size just before the conflict started is not well known, nor is real population size after the conflict ends. In addition, pre-​conflict population data, such as from a census, may be unreliable. Because of these limitations, this counterfactual method is generally used only as a last resort. With better data, more refined versions can be used (see Smith et al., 2013). A more refined version of this method was used to estimate mortality during the Cambodian Khmer Rouge period (Heuveline, 2001). If it is used, it is recommended that a so-​called sensitivity analysis be conducted, where a researcher investigates how much the estimated population loss varies for different assumptions about starting population, end population, and values for assumed population growth over the years of conflict. Conducting such a set of analyses, in which different possible values for the key variables are employed, will generate a range of estimates, and gives an idea of the uncertainty or bandwidth around a midpoint estimate. A second tool often used to estimate mortality is the household survey, in which the units to be surveyed are not persons but households (the household is effectively the possible “victim”). In peacetime, researchers generally sample these households using census tracts, but during or post-​conflict the population may have relocated or be on the move. Researchers can then draw samples using other sampling frames such as Internally Displaced Persons (IDP) camp lists or even aerial surveys. Researchers subsequently randomly pick locations (such as an IDP camp or a neighborhood) within which they, again, randomly select households to be interviewed. In such a so-​called cluster sample, each household is interviewed and asked how many people lived for how many months in the household, and who of these people died. Standard survey tools are available that make this easy to implement and that promote standard (and therefore comparable) measures. From household survey data, epidemiological measures can be derived, that can in turn be used to estimate mortality for an entire conflict-​affected population. One such measure is the Crude Mortality Ratio (CMR), that gives the number of people who died per population size over a certain time period. Comparing the conflict-​CMR to the peacetime-​CMR enables one to estimate excess mortality (that is, mortality above peacetime mortality) during the period of the conflict. While very efficient, cluster samples are subject to a certain “volatility.” This means that researchers, by chance, may have a sample composed of many relatively unhealthy settlements (where mortality is high), or conversely, by chance, many peaceful neighborhoods (where mortality is low). This phenomenon is aggravated because conflict and victimization may be particularly severe in one settlement and less so in another. Depending on the chance choice for one type of settlements or the other, the sample composition and final estimate may vary a lot. Now, random fluctuation is expected and common in samples, but

On the Empirical Study of Atrocity Crimes    59 sampling error is increased in a cluster sample. Normally such chance fluctuation would even out over many individual sample members, but because entire settlements are selected in cluster sampling, mortality estimates may swing heavily up or down depending on the particular selection of settlements. A number of issues that may occur with such household surveys should be noted. First, finding a correct estimate for mortality that can be attributed to the atrocity crimes depends not only on a correct estimate for conflict mortality, but also on having a correct value for peacetime mortality. Especially in a situation of protracted conflict, such statistics may be compromised. Second, it is advisable to accommodate in one’s calculations that in conflicts mortality may vary over region and time. Third, household surveys assume that at least one household member has survived. However, in very high intensity conflicts, this may not be a realistic assumption: if all household members have perished then there is no family member left to report these deaths. The method then suffers from what is called survivor bias. This may lead to serious underestimates of mortality. A very informative review of several surveys that attempted to estimate the death toll in Darfur by the U.S. Government Accountability Office7 highlights some of the issues with household surveys in conflict situations. The report discusses a number of different studies that provided widely diverging estimates of the death toll in Darfur. The interesting and sobering review shows how varied outcomes and expertise can be, providing examples where authors even omitted to subtract peacetime mortality rates from conflict rates. Lastly, mortality can be estimated by using an extension of the capture-​recapture method discussed earlier, called the multiple systems estimation. Using methods that accommodate violations of the stringent assumption of independence of captures, this extension compares three or more lists (like the ‘catches’ of fish in the earlier example) of deceased civilians. It then estimates the number of deceased persons who do not appear on any list, comparable to estimating the total number of fish in a lake. Multiple systems estimation was developed by Zaslavsky and Wolfgang (1993) and was used in the Milosevic trial (Ball et al., 2002) to estimate mortality in Kosovo from March through June of 1999. The model compared names of deceased persons captured on four lists. The combined lists added up to 10,000 entries that upon scrutiny turned out to contain 4,400 unique individual victims. Multiple systems estimation returned a total estimated mortality of 10,356, showing that a sizeable number had not been recorded on any list. While this method appears to hold much promise given the large number of private and non-​governmental initiatives that increasingly document human rights violations and atrocities, it also becomes increasingly unwieldy (even technically unfeasible) with large numbers of lists, although statistical solutions to this are advancing. This method hinges on the correct matching of names. If the comparison of two lists incorrectly identifies two persons as one (a “recapture”), the technique will underestimate mortality; if comparison fails to identify two records as pertaining to the same person, mortality will be overestimated. Correct de-​duplication and matching are therefore key, which is increasingly difficult with more lists.8 Regardless of 7  Government Accountability Office (2006) “Darfur Crisis: Death Estimates Demonstrate Severity of Crisis, but Their Accuracy and Credibility Could Be Enhanced” (Tech. Rep. No. GAO-​07-​24). Available at: gao.gov/​assets/​260/​253101.pdf (Accessed: April 12, 2020). 8  See for an overview of techniques for matching (linkage and de-​duplication) Christen (2012); an overview of capture-​recapture models and multiple systems estimation, is in Bohning et al. (2017).

60   Catrien Bijleveld such technical issues, capture-​recapture techniques and multiple systems estimation are suitable only in situations where we have names of the deceased, and where we can be certain that we can match people. This means that in societies without sufficiently detailed data or where no unique family names are employed, they may be impossible to use. Obviously, mortality is not the only consequence of atrocity crimes. During societal upheavals, such as armed conflicts, sexual violence is also often prevalent, as are property crimes, kidnapping, looting and burning. Researchers have generally investigated these using victim surveys among the affected population. Using a population-​based survey in eastern regions of the Democratic Republic of the Congo, Johnson et al. (2010) reported that almost 40 percent of women and almost a quarter of men had been victimized sexually. A survey in Liberia conducted in 1994 yielded a prevalence rate of rape, attempted rape, or sexual coercion of 15 percent (Swiss et al., 1998). Physicians for Human Rights studied rape victimization in Sierra Leone and found that nine percent of respondents reported war-​related sexual victimization, with almost all victims having been raped.9 Recent studies have increasingly pointed to the fact that sexual violence is not only perpetrated against women, and not only by men (Johnson et al., 2010). It is often assumed that male victims may underreport even more than female victims (Wijkman et al., 2010). In general, estimating the nature and prevalence of sexual violence is notoriously difficult: victims have been found to be (extremely) reluctant to report sexual victimization for various reasons, and sexual crimes committed in the context of atrocities may perhaps be said to have a “triple dark number.” Victims may be reluctant to speak, with rape carrying a large stigma, perpetrators known and living close by, with victims suffering from survivor’s guilt and afraid to testify. Survey designs asking about sexual victimization require particular care. It is generally assumed that surveys with behaviorally specific and tailored questions give more accurate estimates of sexual abuse victimization (Tjaden and Thoennes 1998). Destruction and looting are studied using not only victim surveys, but also by using innovative “indirect” methods, such as through using satellite images. Prins (2008) mapped the burning of villages in Darfur using satellite imagery, identifying recently burnt villages through decreased reflection (“albedo”) in the images. Comparing these findings with ground reports and information available on the internet, he found that 90 percent of identifications through satellite images of villages as burnt were consistent with previous reports. The satellite imagery method is relatively inexpensive and can be used for situations where field research would be too dangerous or impossible. This method likely works well when destruction is visible from the sky and not hidden by thick clouds or tree cover.

4.2.  Etiology In studying etiology and reaction, many studies employ standard social science research methodology. In the study of the etiology of atrocity crimes, we encounter surveys and

9  Physicians for Human Rights (2002) “War Related Sexual Violence in Sierra Leone. A Population-​ based Assessment.” Available at: https://​phr.org/​wp-​content/​uploads/​2002/​06/​sierra-​leone-​sexual-​ violence-​2002.pdf (Accessed: April 12, 2020).

On the Empirical Study of Atrocity Crimes    61 qualitative research. However, many studies wrestle with three issues, of which a paramount one is the lack of controls: it is very rare that one is able to find comparable “units” against which to gauge findings in a group of respondents. A second issue is the retrospective nature of research into atrocities. Because atrocity crimes are relatively rare events, researchers generally arrive on the scene (long) after the events have taken place. Retrospective research carries the risk of identifying causes in hindsight, leading to serious biases. As Mkandawire (2002, p. 186) warned, “the need for rationalisation is enormous, so that one cannot take the ex post explanations of individuals as evidence of the preferences for the sequence of their reasoning.” Peters (2008) recommended the incorporation of various safeguards in interviewing perpetrators about their motives or the circumstances leading up to their criminal acts. He mentions, first, what he refers to as “internal triangulation,” namely the interviewing of different kinds of perpetrators; second, judging the frankness of informants by their willingness to accept objective facts about the conflict; and third, not interviewing informants with realistic reasons to fear prosecution. He recommends cross-​referencing findings to other qualitative or quantitative data, collected by different researchers. Only rarely do researchers have access to perpetrator data from before the atrocities occurred. If one were able to collect such data, ex post facto rationalizations do not threaten the validity of the conclusions, as the pre-​conflict data were collected before anyone knew that atrocity crimes would be committed. Verwimp (2005) described how he was—​serendipitously—​able to trace original households in a survey that had been conducted in Rwanda in 1989–​1992, before the genocide in 1994. He subsequently re-​ interviewed these households (or their neighbors if the location was deserted) after the genocide had taken place and was able to relate pre-​genocide characteristics of respondents to their roles during the genocide. Specifically, Verwimp classified each household member as: victim/​survivor, perpetrator, thief, innocent, protector, or type unknown, or if necessary, as two types, for instance, when a person had both killed as well as hidden Tutsi in their home. He next compared the profiles of these respondents to their situation before the genocide. A third issue is the so-​called confounding of many possible causal factors in an observational setting. As said, most research into atrocity crimes is observational, so explanations are intertwined. We may find that perpetrators have particular ages, socioeconomic statuses, or upbringings, but as these characteristics co-​occur, we cannot quantitatively determine which is the stronger causal factor in perpetration. This complicates our interpretation. Suppose that we find that perpetrators are economically disadvantaged, being poor and young. We cannot then identify poverty as a causal factor, as the association between poverty and perpetration may be what is called spurious, in the sense that it is actually age (confounded with poverty) that is the causal factor. In addition, many explanatory factors are to be found (and often intertwined) at micro-​, meso-​and macro-​levels, in highly particular and unique constellations. This is why qualitative methods are often employed in the study of etiology, as they are so aptly geared toward contextual explanations of behavior. In qualitative research, researchers attempt to uncover, often through interviews and observation, why people behaved the way they did in a particular setting in a particular time period. Wood (2006) studied why incidents of rape vary between conflicts. She first conducted a review of the literature on wartime rape, in numerous conflicts in different historical

62   Catrien Bijleveld periods. She found first that the prevalence of sexual violence varies considerably across conflicts, in the manner it was committed, the perpetrators, motives, and other characteristics. Next, she notes that the type of conflict cannot explain these differences, and that, in fact, part of the differences may be due to methodological differences in measurement rather than true differences in prevalence. Wood in a next step systematically compares data on wartime rape prevalence, using qualitative methods, for a selected number of conflicts. She carefully exploits variation in sexual violence—​comparing the properties of conflicts and combatant groups, in which sexual violence occurred to those where it did not occur or occurred to a lesser extent. In doing so, she is able to test a number of theories or hypotheses, noting that not one single reason may serve to explain all kinds of wartime rape. She investigates, for instance, whether sexual violence is less likely to occur if insurgent groups depend on the civilian population for food and intelligence. Also, she argues that combatant groups with relatively more female fighters engage less in sexual violence. Wood concludes propagating more research on patterns in sexual violence using within-​ case analyses (comparing periods with and without sexual violence within the same conflict) to control for selection effects. Aranburu (2010) discusses the findings of the internationalized Commission of Inquiry into Post-​Election Violence (CIPEV), established to investigate the post-​election violence, including sexual violence, in Kenya. For this inquiry, specially trained staff took statements from 31 victims of sexual violence. The commission identified different typologies of rape, analyzing the transcribed statements for content and meaning, that reflected different etiologies. In some areas, sexual violence was a means to pressure people to leave their homes, to retaliate against them for having voted for a certain candidate in tandem with motives like domination, humiliation, and degradation. However, sexual violence was also found to be an opportunistic act committed against a background of lawlessness during the post-​election violence. Last, they identified cases where sexual violence was committed against IDPs who traded sex unwillingly for basic needs; in these latter cases perpetrators could be as varied as inhabitants of the camp, security personnel, or even humanitarian workers. Croes and Tammes (2004) analyzed survival chances of Jews in the Netherlands during World War II, employing a mixture of qualitative and quantitative methods to analyze data from documents and Dutch historical archives, collected at the individual level as well as at the level of municipalities. They first attempted to explain survival chances of Jews from the individual characteristics of Jews themselves, such as their age, nationality, religious denomination, etc., and next, from the characteristics of the municipality where they had resided, such as demographic composition and the extent to which local authorities had collaborated with Nazi occupiers. Among their findings, one is particularly interesting for our methodological exposé: they found how in municipalities with relatively many Christian Jews survival chances were higher. One might expect this to be the result of Christian Jews having higher survival chances overall, but this was not the case. Only at the meso-​level did this municipal percentage of Christian Jews play a role in determining survival rates. The authors explain this quantitative finding through qualitative analysis of the archival data. They showed that large Christian Jewish groups functioned in each municipality as a “bridge” between the Jewish and non-​Jewish communities: in municipalities with many Christian Jews, Jews had more contact with non-​Jews and had been better able

On the Empirical Study of Atrocity Crimes    63 to find addresses for hiding, were more successful in obtaining false identity cards and other means to be able to escape deportation. Thus, a meso-​factor explained the survival of individual Jews. After the conflict in Darfur erupted in 2003, it appeared that predominantly “African villages,” that is, villages with inhabitants from mainly non-​Arab tribes from which the rebel groups originated, were more likely to be targeted for destruction than “Arab-​dominated villages,” where inhabitants from predominantly Arab tribes resided. If “African villages” were being targeted and “Arab-​dominated villages” left undisturbed, this might point to a pattern and, therefore, to a likely policy of destruction. The issue is of course how to determine whether the African tribes are actually being targeted: it could be that the observed pattern is accidental. It could also be that the destruction was not a chance occurrence, but actually was caused by other properties of “African villages,” such as closeness to rebel strongholds, or better soil—​in which case the villages were not targeted because they were “African villages,” but because other properties were confounded with the fact that they were “African villages.” Olsson and Siba (2012) investigated this using regression models. Regression models are quantitative models in which one assesses the impact of a number of factors simultaneously on a certain outcome. Here, the authors assessed the impact of ethnicity, soil quality, proximity of rebel strongholds, distance to a wadi, etc., on the outcome—​abandonment of a village. The attractive property of regression analysis is that the results will tell you what each explanatory factor adds to the prediction of the outcome, net of the impact of the other explanatory factors. So, if we run a regression analysis in which we include the ethnic make-​up of villages as well other factors, we will find—​loosely formulated—​how much risk ethnic composition adds to the likelihood of abandonment over and above these other factors. Olsson and Siba did exactly this: they added a host of factors in support of different hypotheses to the model. The results showed a number of expected patterns: villages relatively rich in resources were more prone to be abandoned, as were villages with a shorter distance to alluvial soils, villages closer to a major center (that generally had a market) or to Nyala (a major town). However, by far the strongest and significant predictor, and one that held over and above the effect of all other explanatory factors, was whether the village housed inhabitants from the same tribes as the rebels. The hypothesis that this was a chance phenomenon, or occurred because ethnic composition was confounded with the other variables in the model, was therefore rejected by this analysis. Blattman and Miguel (2010) collected a number of economic studies on the macro-​ causes of war and investigated these studies’ substantive conclusions in a so-​called narrative review. Even though slightly off topic, as they focused on war, their findings are relevant for researchers of the macro-​causes of atrocity crimes. Blattman and Miguel (2010) show, among other things, how authors have at times drawn remarkably different conclusions even when using the same data or the same variables: different explanations were then often attributable to different methodological choices, such as attaching different interpretations to key variables, or a different coding of wars. Note how Wood (2006) pointed to the same issue in her qualitative analysis into the etiology of rape. These examples underscore how important it is to employ uniform methodologies: without these, results across conflicts to identify general patterns do not lead to synthesis but to confusion.

64   Catrien Bijleveld

4.3.  Reaction In the study of reaction(s) to atrocity crimes, we more often encounter experimental designs. In the analysis of observational data (such as from cases processed at courts) where variables are likely to be confounded, we regularly find regression analyses, since they can reveal the effect of variables net of any confounding variables. As an example of the latter, Holá, Bijleveld, and Smeulers (2009) investigated the impact of—​among other variables—​rank, responsibility, number of guilty counts, and type of crime on sentence length at the International Criminal Tribunal for the former Yugoslavia (ICTY). In previous descriptive analyses, they had noted that high-​ranking offenders in general received the longest sentences, that sentences for middle-​ranking offenders were surprisingly low, but those of low-​ranking offenders were higher again. Also, they had noted that those with superior responsibility received the lowest sentences on average, lower even than aiders. The authors had difficulty explaining this. If aiders received on average shorter sentences, was that because they were aiders or because they in Sierra Leone with were responsible for less serious crimes? The authors suspected that factors relevant for sentence determination were likely confounded. To disentangle confounding and reveal the net effect of rank on sentence length, the authors carried out a regression analysis, in which they predicted sentence length from a number of legally relevant factors. The authors found that net of all confounders included in the model, being of higher rank did predict longer sentences: over and above all other factors in the model, being a high-​ranking offender added 10.9 years to sentence length. In addition to regression analysis, one regularly encounters so-​called vignette studies in the domain of reaction. Vignette studies present respondents with stylized versions of a situation, which respondents are asked to evaluate according to some criterion. Of that stylized version, different versions are made, that are then randomly handed out to respondents. Gibson (2004) used such a vignette design to investigate what aspects of justice contributed to justice delivered by the South African Truth and Reconciliation Commission (TRC) being perceived as fair. The study was carried out on a representative sample of South Africans, so that the findings are generalizable to the South African population. For the vignette study, Gibson first identified from literature four kinds of justice that the TRC could provide that could compensate for the fact that amnesty for serious offenders may be perceived as inherently unfair. First, distributive justice, which implies that victims receive (financial) compensation for the losses they suffered. Second, restorative justice, which implies restoration of relations between victims and offenders, entailing an apology by offenders. Third, retributive justice, captured for instance by offenders publicly admitting their crimes. Last, procedural justice, which refers mostly to whether victims are given a voice in proceedings. Gibson next designed sixteen different vignettes (the design was a 2 × 2 × 2 × 2 design), in which each of these types of justice was present or not. Vignettes were used because in real cases different kinds of justice are often confounded: if, for instance, procedural justice is present, then restorative justice is generally always present as well; it is then impossible to disentangle the effects of either on whether the outcome of the proceedings is perceived as fair. However, by constructing these hypothetical vignettes, it is possible to compare cases where only one kind of justice was present (e.g., procedural justice) to those where only one other kind of justice was present (e.g., restorative justice).

On the Empirical Study of Atrocity Crimes    65 After administering the vignettes, Gibson found that compensation, i.e., distributive justice, predicted strongest whether respondents viewed the response as fair. Gibson however also noted that across all vignettes, only 24.3 percent was judged as fair. When all types of justice are present, the outcome was judged as relatively fairest. It should be noted that even then, in the vignettes where all types of justice were present, still 52.7 percent of respondents judged the outcome to be unfair. David (2014) also used vignettes to study public perceptions of domestic and international criminal prosecutions. David developed a vignette that was presented to a representative sample of Croatians, in which the case of a person with an ethnically neutral name (“Petrović”) was described. In the vignette, Petrović was introduced as a member of either the Serbian (or the Croatian) army, who had willfully killed either a Croatian (or a Serbian) civilian. Described as a middle-​ranking soldier, for the vignette-​situation, it was not unrealistic that he would either have received a punishment or received a suspended sentence (no punishment), with these outcomes being varied in the vignettes. The vignettes also varied in that Petrović was tried at the ICTY or domestically. The design was therefore a 2 × 2 × 2 design with eight versions of the vignette. Respondents were asked to indicate on four dimensions to what extent they judged the outcome of the trial as just. David aimed to investigate not only the effects of the factors of the vignette (ethnicity, punishment, and legal institution), but also whether respondents of Croatian descent would judge punishments of Croatians differently than punishments of Serbs. During the administration of the vignettes, however, the ICTY arrested Radovan Karadzić, a prominent Bosnian Serb leader during the war. This gave the author a unique opportunity to compare answers given by respondents before and after Karadzić’s arrest (from a methodological viewpoint, a serendipitous situation, called a natural experiment). David found a strong and significant effect, indicating enhanced approval of international criminal tribunals after Karadzić’s apprehension. Cilliers et al. (2016), using an experiment which blended both experimental and natural settings, studied community-​level reconciliation forums in Sierra Leonean villages in 2007. Forums took, on average, two days, where victims and perpetrators described their experiences, and the latter asked for forgiveness. After a forum, a peace tree would be planted. In 2011, when the procedures were ready to expand to new districts, these were selected by random assignment, in the sense that some sections would be assigned the intervention of the forums, and others not. The selected districts were similar to other districts in Sierra Leone with regard to exposure to wartime atrocities and socioeconomic indicators, meaning that the findings are likely generalizable to Sierra Leone. For each village in which a ceremony took place (an “experimental village”), a random “control village” close by was sought. For each cluster of experimental village and control village, adults were interviewed. Data were collected after nine and thirty-​one months, in order to assess long-​and short-​term effects. The authors established that all factors capturing “societal healing” improved due to the forums. However, psychological health was significantly lower in the experimental villages: for instance, clinical Post-​Traumatic Stress Disorder (PTSD) was 36 percent higher in experimental villages. Over time, these effects held. At the same time, the authors note a clear positive effect on forgiveness of war perpetrators and on trust of former rebel combatants. The Sierra Leone experimental study is exceptionally strong in that it employed an experimental design in a natural setting. The study also used standard (so that measures are internationally comparable), locally adapted instruments (so that they are relevant for the local context), and assessed both short-​and long-​term effects.

66   Catrien Bijleveld Arguably, it is often impossible to conduct such vignette or experimental studies. Especially in the study of truth commissions and amnesties, we find complex, unique constellations of numerous interrelated factors, and therefore much qualitative research.10 Thoms et al. (2008) carried out a review of existing studies on transitional justice. The authors discuss case studies from a wide variety of countries, conflicts, and across different categories of traditional justice. A first conclusion the authors draw is that most studies have focused on one situation, and that rigorous, cross-​national analyses are particularly absent. Most studies are analytically weak according to the authors, as they are “relying largely on impressionistic descriptions of a small number of well-​known cases, rather than systematically comparing impacts across a broad range of cases, including societies in which [transitional justice] has not been pursued” (Thoms et al., 2008, p. 5). Second, the authors conclude that the overall evidence on the impact of transitional justice is weakly positive to null. Findings are highly inconsistent, and this is partly due, the authors state, to differences in methodologies. Third, the authors note that many possible causal factors on the outcome of transitional justice are confounded. Thoms et al. make a number of recommendations for future transitional justice research. They state that key variables (causes, effects, and controls) need to be better defined. They advocate a mixed methods approach, recommending among others that qualitative and quantitative measures be combined, and that micro-​level and macro-​ level analyses should be integrated. Quasi-​experimental or experimental studies would be especially warranted.

4.4. Victims and societies Studies on victims and post-​conflict societies vary greatly: we find studies by researchers with varied backgrounds, from psychology and psychiatry, to victimology, demography, biostatistics, and econometrics, employing quantitative as well as qualitative methods. Many studies use data from the regular Demographic and Health Surveys (DHS), launched by USAID in 1984 to monitor population and health trends in developing countries. As an example, UNESCO investigated the impact of conflict on schooling, comparing trends during periods of conflict with trends before and after such periods, employing a case-​control method in which periods with and without conflict were compared.11 Akresh and de Walque (2008) compared schooling levels of children using the 1992 and 2000 DHS for Rwanda to measure educational attainment. They investigated schooling for two cohorts: children surveyed two years before the genocide, and children surveyed six years after the genocide. Their analysis showed how schooling levels of children dropped after the genocide: children aged fourteen before the genocide had had around four years of schooling, and children aged fourteen after the genocide had had around three years of schooling. The authors also investigated whether this drop could have been driven by loss of parents, that is, whether schooling levels after the genocide dropped because so many children were

10 

See for example Backer (2009), and Dancy et al. (2010). UNESCO Institute for Statistics (2011) “The Hidden Crisis: Armed Conflict and Education” (Tech. Rep. No. 2011/​ED/​EFA/​MRT/​PI/​50). UNESCO. Available at: https://​unesdoc.unesco.org/​ark:/​48223/​ pf0000190743 (Accessed: April 12, 2020). 11 

On the Empirical Study of Atrocity Crimes    67 orphaned. By comparing schooling levels for orphans and non-​orphans before and after the genocide, they showed that this explanation was unlikely: they even found that orphans in the pre-​genocide cohorts in fact had higher schooling levels than non-​orphans in the post-​ genocide cohort. Various Dutch researchers have studied people born or conceived in the Dutch “Hunger Winter,” or the winter 1944–​1945 that was extremely cold and where particularly the west of the Netherlands under the Nazi occupation suffered severe food shortages. It was known that babies born during or right after this period had lower birth weights. Researchers studied three groups of people. First, they studied children born in the west of the country during the Hunger Winter or right after (and thus also in utero during the Hunger Winter), who could be called the experimental group. A second group consisted of children born in the same clinics, but in 1943 or in 1947; this group served as a control group of children born in the same location, but not exposed to the famine. A third group consisted of relatives of the children in the first group, sisters for the females and brothers for the males. This group served as controls in the sense that they stemmed from the same socioeconomic stratum and gene pool. Roseboom et al. (2006) showed how mothers exposed to the famine during mid-​to late gestation had had babies with significantly reduced birth weights. Babies whose mothers were exposed to hunger only during early gestation had normal birth weights; however, they grew up to have higher rates of obesity than those born before and after the war, and had higher rates than those exposed during mid-​to late gestation, with the difference in weight on average almost five kilograms. At ages fifty-​six to fifty-​nine, men as well as women exposed in utero to famine during the early stage of gestation performed worse on a selective attention task (De Rooij et al., 2010). Demographers have shown that conflict impacts marriage and fertility patterns. As an example, Abramitzky et al. (2010) contrasted experimental regions (where many men were killed) with control regions (where fewer men were killed) using regional data in France after World War I. In France during World War I, soldiers’ mortality varied between approximately 10 to 20 percent. The authors found that war positively impacted men’s social mobility, with men in regions where male mortality had been higher “marrying up,” that is, marrying women of higher social classes than themselves. The authors interpret this by saying that men’s relative scarcity in experimental regions made them more attractive on the marriage market. Women in such regions were, conversely, less likely to marry and they married at later ages. In regions with higher military mortality, there were also more out-​ of-​wedlock births and fewer divorces. Tames (2009, 2015) studied children of Dutch collaborators with the Nazi occupiers in World War II in the Netherlands. Tames used published and unpublished accounts and documents, newspaper articles, and archival material. In addition, she conducted qualitative interviews with eighteen children. In the Netherlands, immediately after the conclusion of World War II, children of collaborator parents (when both parents had been arrested) were generally placed in foster homes or institutions; those who could stay with their mother, saw their father arrested and taken away. All in all, the end of the war was, many of these children reported to the author, not the end but the beginning of a traumatic period in their lives. Those who were raised in care were pressured to break with their old identity and the morals of their national-​socialist parents. Children were confronted with gruesome pictures from the concentration camps and their parents were linked directly to the Holocaust. Many children related how this was difficult for them to believe, with some

68   Catrien Bijleveld simply refusing to believe that such things had truly happened, and others, conversely, starting to mistrust their parents. On the other hand, not being told what had happened led some children to mistrust everything and everyone for lack of information. Many children related how they ended up in grave conflicts of loyalty toward their parents. Being a child from a collaborator family carried for many a lifelong stigma. Tames concludes that the families themselves were key in how children coped with their intergenerational stigma. Her analysis shows how the children living in such a world of silence, without information, without a way to cope with what had happened, or a way to respond to hateful remarks, bullying, or exclusion, they left anchorless, not only in the outside world but also sometimes at home. The evidence on intergenerational transmission of trauma from international crimes is inconclusive: on the one hand, there is ample clinical evidence of such transmission, while on the other hand, meta-​analytic studies have failed to find evidence for transmission to second-​and third-​generation descendants (Barel et al., 2010; Lorens Braga et al., 2012). The latter authors (Lorens Braga et al., 2012) conducted a qualitative study among fifteen second-​generation survivors of the Holocaust. Qualitative in-​depth interviews were analyzed for experiences, meanings, and subjective processes of the participants regarding the war experiences of their parents. The authors drew a number of conclusions from the qualitative material. First, they stress the importance of communication, ranging from open, loving, everyday communication which contributed to resilient outcomes, to secrets, silences, and unsaid things that made it (similar to Tames’ findings for children of perpetrators) harder for the second generation to arrive at biographical and psychological integration of events. Second, the authors classified the experience of trauma into categories, for example a terrifying worldview implying offspring felt they had to always be ready for imminent catastrophes. Third, mechanisms of resilience were identified as well, with subcategories such as a search for a singularity (for instance representing the parent Holocaust survivor as a hero), or the defense of universal, humanist values. An important conclusion of the qualitative study was that not only trauma appeared to be transmitted, but resilience as well—​which may offer a clue toward explaining the absence of second-​ generation transmission in meta-​analytic studies that average out over respondents. Economists and econometricians have attempted to assess the economic costs of conflict. In the absence of comparable non-​conflict countries to serve as control regions, they have, in a sense, used purpose-​built comparison regions using advanced modeling. The procedure runs, phrased loosely, as follows. For investigating the impact on gross domestic product (GDP) of conflict in a certain region X, one first attempts to predict GDP in that region X in the years before the conflict erupted using yearly GDP values from a number of so-​called donor countries, using regression analysis. This prediction from the combined donor countries is said to be the “synthetic” control region (Abadie et al., 2015). Next, one predicts yearly counterfactual GDPs for region X for the post-​conflict years using the regression model. Comparing the counterfactual GDPs for region X with the real, observed post-​conflict GDPs in region X gives an estimate of the economic impact of the conflict. The technique bears resemblance to the counterfactual methods employed in the estimation of conflict mortality. It is inventive but cannot always be satisfactorily employed. In a study to assess the impact of the Basque conflict, the model was unable to predict pre-​conflict GDP of the Basque region well from a set of donor countries (Abadie and Gardeazabal, 2003). Also, it must be assumed that the conflict does not affect (positively or negatively) the donor

On the Empirical Study of Atrocity Crimes    69 countries (that will very often be geographically close, with similar infrastructure and export products), which is, at times, unrealistic.

5.  Conclusion As this chapter has hopefully demonstrated, the study of atrocities and atrocity crimes is, at times, methodologically fraught: police and CJS records are generally to no avail; governmental institutions may have collapsed; there may be large population upheavals, displacement and victimization, forcing one to draw cluster samples; and there may be extremely dangerous research conditions. Prevalence is underestimated when mortality is so high that entire families have been killed, or when conditions have been so traumatic, or current conditions so difficult and threatening, that victims do not wish to speak. Atrocity crimes are generally studied—​in spite of the fact that they generate such massive victimization—​using sparse data. Much remains hidden, and for some crimes, the dark number may be considered to be “triple,” when there are issues not only in reporting to, but also in recording by police (or other institutions), and reporting in surveys—​at every level. It is clear that the atrocity crime–​criminologist has even less data to go on than the criminologist who studies regular, national crime. There is more uncertainty, confidence intervals are wider, and estimates, especially when using cluster samples, may be (widely) off. This is especially problematic given the extremely serious nature of the crimes being studied. Atrocity crimes are rare and generally unexpected events. Often, research can only be conducted retrospectively. Data are often observational. This creates particular issues with causal inference. Many researchers have employed inventive strategies to find, or even construct, controls to be able to compare cases that experienced atrocity crimes or conflict with cases that did not, exploiting regional variation, temporal variation, genetic variation, or natural experiments. Controlled experiments are seen increasingly, both more stylized experiments that survey samples with vignettes as well as more naturalistic ones. That being said, the study of atrocity crimes has perhaps not utilized the full, existing methodologies available and used in the study of regular, national crime. It is particularly striking that hardly any self-​report surveys have been conducted; innovative indirect methods, such as randomized response (of which easy to understand and implement varieties such as the unmatched count exist), are virtually unexplored in assessing perpetration and, through it, prevalence. Particularly for crimes where victims may be unaware they occurred, such as the theft of their properties, or looting, self-​report surveys may be the best way to shed light on these “corollary crimes” that are still relatively under-​researched. Indirect questioning could also be used to better measure victimization, and systematic research to assess its usefulness in this arena is needed. With the advance of the internet and increased technological possibilities with simple hand-​held devices such as smartphones, the story of international crimes as they unfold is increasingly captured digitally and on images. The immense amount of information on the world that is accessible from researchers’ desks has made it possible to identify the exact location of crimes, and much about the identity of perpetrators. Such digital forensic evidence will likely become increasingly important in the prosecution of international crimes.

70   Catrien Bijleveld Similarly, satellite imagery now routinely supports witness statements in reports by organizations such as Human Rights Watch. The use of such data for scientific purposes is a relatively novel avenue with much potential, as shown by the growing amount of data captured through passive surveillance, citizens and witnesses, and institutions. Atrocity crimes have been studied by a varied cast of researchers with varied disciplinary backgrounds. We see lawyers and criminologists, but also economists, demographers, epidemiologists, development economists, anthropologists, and psychologists, and among these researchers, we see variation in qualitative and quantitative paradigms. This makes for paradigmatic and conceptual differences, which partially account for incomparability across studies. But it also makes for richness, and the chance to corroborate findings and interpretations across disciplines, triangulating across different methods and data. Qualitative and quantitative methods can and should be combined to provide stronger and richer evidence. A number of reviews of mortality estimates and upheavals over survey results have shown that there is still much to be done, and that different disciplines can learn a lot from each other. Standardization is sorely needed, in terms of instruments and in terms of methodology, in a generic sense. Before that has been achieved, triangulation, narrative, or systematic review and meta-​analysis will likely be the first realistic step to better understand these at times incomprehensible crimes and their pervasive consequences.

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On the Empirical Study of Atrocity Crimes    71 Barel, E., Van IJzendoorn, M.H., Sagi–​Schwartz, A., and Bakermans–​Kranenburg, M.J. (2010) “Surviving the Holocaust: A Meta–​analysis of the Long–​term Sequelae of a Genocide.” Psychological Bulletin 136(5), pp. 677–​698. Bijleveld, C.C.J.H. (2019) Conflicts and International Crimes: An Introduction to Research Methods. Den Haag: Eleven International Publishing. Blattman, C., and Miguel, E. (2010) “Civil War.” Journal of Economic Literature 48, pp. 3–​57. Bohning, D., van der Heijden, P.G.M., and Bunge, J. (2017) Capture-​Recapture Methods for the Social and Medical Sciences. Boca Raton, FL: Chapman and Hall. Christen, P. (2012) Data Matching: Concepts and Techniques for Record Linkage, Entity Resolution, and Duplicate Detection. Berlin and Heidelberg: Springer. Cilliers, J., Dube, O., and Siddiqi, B. (2016) “Reconciling after Civil Conflict Increases Social Capital but Decreases Individual Well–​being.” Science 352(6287), pp. 787–​794. Croes, M., and Tames, P. (2004) “Gif laten wij niet voortbestaan” [“We Shall Not Allow Poison to Live On.”] Amsterdam: Aksant. Dancy, G., Kim, H., and Wiebelhaus–​Brahm, E. (2010) “The Turn to Truth: Trends in Truth Commission Experimentation.” Journal of Human Rights 9(1), pp. 45–​64. David, R. (2014) “International Criminal Tribunals and the Perception of Justice: The Effect of the ICTY in Croatia.” The International Journal of Transitional Justice 8(3), pp. 476–​495. de Rooij, S.R., Wouters, H., Yonker, J.E., Painter, R.C., and Roseboom, T.J. (2010) “Prenatal Undernutrition and Cognitive Function in Late Adulthood.” Proceedings of the National Academy of Sciences 107, 16881–​16886. Available at: 10.1073/​pnas.1009459107 (Accessed: April 12, 2020). Gibson, J.L. (2004) Overcoming Apartheid: Can Truth Reconcile a Divided Nation? New York: Russell Sage Foundation. Guha–​Sapir, D., Schlüter, B., Rodriguez–​Llanes, J.M., Lillywhite, L., and Hsiao–​Rei Hicks, M. (2017) “Patterns of Civilian and Child Deaths Due to War–​Related Violence in Syria: A Comparative Analysis from the Violation Documentation Center Dataset, 2011–​16.” The Lancet Global Health 6, pp. 103–​110. Greenberg, B.G., Abul–​Ela A.A., Simmons, W.R. and Horvitz, D.C. (1969) “The Unrelated Question Randomized Response Model: Theoretical Framework.” Journal of the American Statistical Association 64, pp. 520–​539. He, N., and Haen–​Marshall, I. (2010) “The International Self–​Report Delinquency (ISRD) Study” (Tech. Rep.). Boston: College of Criminal Justice, Northeastern University. Heuveline, P. (2001) “The Demographic Analysis of Mortality Crises: The Case of Cambodia, 1970–​ 1979.” In: Reed, H.E. and Kelley, C.B. (eds.) Forced Migration and Mortality. Washington, D.C.: National Academy Press, pp. 102–​129. Holá, B., Bijleveld, C.C.J.H., and Smeulers, A.L. (2009) “Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice.” Leiden Journal of International Law 22(1), pp. 79–​97. Johnson, N.F., Scott, J., Rughita, B, Kisielewski, M., Asher, J., Ong, R., and Lawry, L. (2010) “Association of Sexual Violence and Human Rights Violations with Physical and Mental Health in Territories of the Eastern Democratic Republic of the Congo.” Journal of the American Medical Association 304, pp. 553–​562. Killworth, P.D., McCarty, C., Bernard, H.R., Shelley, G.A., and Johnsen, E.C. (1998) “Estimation of Seroprevalence, Rape, and Homelessness in the United States Using a Social Network Approach.” Evaluation Review 22(2), pp. 289–​308.

72   Catrien Bijleveld Kuha, J., and Jackson, J. (2014) “The Item Count Method for Sensitive Survey Questions: Modelling Criminal Behaviour.” Journal of the Royal Statistical Society: Series C (Applied Statistics) 63(2), pp. 321–​341. Lensvelt–​Mulders, G.J.L.M., Hox, J.J., van der Heijden, P.G.M., and Maas, C.J.M. (2005) “Meta–​Analysis of Randomized Response Research: 35 Years of Validation.” Sociological Methods and Research 33(3), pp. 319–​348. Lorens Braga L., Mello, F., and Paulo Fiks, J. (2012) “Transgenerational Transmission of Trauma and Resilience: A Qualitative Study with Brazilian Offspring of Holocaust Survivors.” BMC Psychiatry 12, pp. 134–​144. Miller, J.D. (1984) A New Survey Technique for Studying Deviant Behavior. PhD thesis, The George Washington University. Mkandawire, T. (2002) “The Terrible Toll of Post–​colonial ‘Rebel Movements’ in Africa: Towards an Explanation of the Violence Against the Peasantry.” Journal of Modern African Studies 40(2), pp. 181–​215. Olsson, O., and Siba, E. (2012) Ethnic Cleansing or Resource Struggle in Darfur? An Empirical Analysis. (Tech. Rep.). University of Gothenburg. Available at: https://​www.science.gu.se/​ digitalAssets/​1369/​1369622_​darfur6.pdf (Accessed: 131369/​1369622_​darfur: April 13, 2020). Peters, K. (2008) Methodological Issues in the Contextualisation of and Unravelling of Motives for Young and Under–​age People Involved in Armed Combat (Tech. Rep.), unpublished. Petersen, C.G.J. (1896) “The Yearly Immigration of Young Plaice into the Limfjord from the German Sea.” Reports of the Danish Biological Station 6, pp. 5–​84. Price, M., Klingner, J., and Ball, P. (2013) “Preliminary Statistical Analysis of Documentation of Killings in the Syrian Arab Republic” (Tech. Rep.). The Benetech Human Rights Program. Available at: hrdag.org/​wp–​content/​uploads/​2015/​07/​Benetech–​final–​SY–​report.pdf (Accessed: April 12, 2020). Prins, E. (2008) “Use of Low–​Cost Landsat ETM+ to Spot Burnt Villages in Darfur, Sudan.” International Journal of Remote Sensing 29(4), pp. 1207–​1214. Raghavarao, D., and Federer, W.T. (1979) “Block Total Response as an Alternative to the Randomized Response Method in Surveys.” Journal of the Royal Statistical Society: Series B: Methodological 41(1), pp. 40–​45. Roseboom, T., de Rooij, S., and Painter, R. (2006) “The Dutch Famine and Its Long–​term Consequences for Adult Health.” Early Human Development 82(8), pp. 485–​491. Shadish, W.R., Cook, T.D., and Campbell, D.T. (2002) Experimental and Quasi-​Experimental Designs for Generalized Causal Inference. Boston: Houghton–​Mifflin. Sloboda, J., Dardagan, H., Spagat, M., and Hsiao–​Rei Hicks, M. (2013) “Iraqi Body Count: A Case Study in the Uses of Incident–​Based Conflict Casualty Data.” In: Seybolt, T.B., Aronson, J.D., and Fischhoff, B. (eds.) Counting Civilian Casualties. Oxford: Oxford University Press, pp. 53–​75. Smith, S.K., Tayman, J., and Swanson, D.A. (2013) A Practitioner’s Guide to State and Local Population Projections. Dordrecht: Springer. Swiss, S., Jennings, P.J., and Aryee, G.V., Brown, G.H., Jappah–​Samukai, R.M., Kamara, M.S., Schaack, R.D.H., and Turay–​Kanneh, R.S. (1998) “Violence Against Women During the Liberian Civil Conflict.” Journal of the American Medical Association 279(8), pp. 625–​629. Tabeau, E., and Bijak, J. (2005) “War–​related Deaths in the 1992–​1995 Armed Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results.” European Journal of Population 21, pp. 187–​215.

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CHAPTER 3

Atro cit y Cri me s as a Dif f erent T y pe of C ri me ? Mark A. Drumbl1 I’ve never done good things I’ve never done bad things I never did anything out of the blue. —​David Bowie, “Ashes to Ashes,” Scary Monsters (And Super Creeps) (1980)

1.  Introduction In “Ashes to Ashes,” David Bowie raps, to the chime of a nursery rhyme, about the dull and ordinary character of the one who never acts out of character: the person around the corner who never does good things nor bad things nor things out of the blue. But it is a person of this same character, indeed, who commits genocide. It is this plain character, riffing off Bowie’s words, who becomes a “junkie, strung out in heaven’s high, hitting an all-​time low,” whose ordinariness normalizes into collective lethalness. This character may come to believe, hungrily, that to eliminate the other is to do a good deed. Hence the paradox and unsettling riddle: it is this character, once humdrum and now a zealot—​garish and all dressed up—​who arrives with a bulldozer, like Bowie’s figur(in)es in his solarized video of his song as shown in Figure 3.1. Bowie’s cast of costumed characters ominously approaches like others have done elsewhere, in bulldozers leveling churches packed with escapees in Rwanda and, nearly two decades later, felling shrines, fortuitously devoid of people, in Timbuktu, Mali.

1 

Parts of this chapter invoke, excerpt, and update select passages from pages 1, 23–​35, 41–​42, and 45 of the author’s book, Atrocity, Punishment, and International Law (Drumbl, 2007).

76   Mark A. Drumbl

Figure 3.1  Ashes to Ashes, David Bowie (1980) https://​en.wikipedia.org/​wiki/​Ashes_​to_​Ashes_​(David_​Bowie_​song) (Accessed: 12 January 2020)

This chapter is about this ordinary character who, when amassed with other ordinary characters in metastasized mobs, collectively commits staggering acts of extraordinary evil. This collectivization of violence is a singularly striking feature of atrocity crime. This feature renders atrocity crime just not like ordinary common crime. The collective nature of mass atrocity sits queasily with international criminal law’s predicate of individual agency, action, and authorship. Atrocity is the product of connived violence, in which individual participation is often deeply conformist. Accordingly, convictions for atrocity crimes often hinge upon vicarious liability theories which, in turn, strain the liberalism inherent in the legalism of criminal law. One example involves the understandable moves that German courts have recently deployed to convict octogenarians and nonagenarians accused of involvement in wretched Holocaust-​era crimes. Several concentration camp guards or staff members have been convicted on the basis that they served as cogs in the killing machines rather than for murders or atrocities to which they personally have been (or can be) linked. This form of complicity (or accessorial liability) was deployed for the first time in the trial of John Demjanjuk (a former Ukrainian prisoner of war who served as a guard at Nazi camps) in Munich in 2011. It has since been replayed in very recent years in proceedings involving Oskar Groening (an accountant at Auschwitz), Johann Rehbogen (a guard at the Stutthof camp in Poland), Reinhold Hanning

Atrocity Crimes as a Different Type of Crime?    77 (a Schutzstaffel (SS) guard at Auschwitz), and “Hans H.” (an SS member at the Mauthausen camp in Austria).2 This chapter aims to unpack the similarities and differences that stew and brew between what I respectively call extraordinary international crimes and ordinary common crimes. Let us begin with some definitions. The term atrocity crimes is commonly meant to include crimes such as genocide, crimes against humanity, war crimes, and aggression—​ the four core crimes encapsulated in the Rome Statute.3 This category is not airtight, to be sure, and it may be that certain crimes such as terrorism and endemic corruption (for example) could drift into this category as well. By extraordinary international crimes, I mean the subset of atrocity crimes that are committed by complicit collectives burgeoning with propagandized “junkies” of ordinary citizens high on hate. Therefore, I understand extraordinary international crimes to be rooted in acts of atrocity based on discriminatory intent. Jurisprudentially, these discriminatory acts of atrocity take the forms of genocide and certain crimes against humanity (for example, persecution). Proof of intent to wipe out a national, racial, religious or ethnic group is a required element of genocide, and discrimination is a required element of the crime against humanity of persecution, but discriminatory animus is not an essential requirement of most atrocity crimes. Hence, my working understanding of extraordinary international criminality involves (a) massive numbers of ordinary (often civilian) perpetrators who (b) are motivated by a discriminatory animus. Finally, by ordinary common crimes, I mean those crimes proscribed at the national level in domestic penal law that do not involve the kinds of plans, policies, or politics that are central to atrocity crimes. Ordinary common crimes may include very serious offenses, such as murder or torture, when committed by delinquent or deviant individual perpetrators. Through a survey of published research, this chapter advances three interconnected claims: (1) extraordinary international crimes are group crimes characterized more by collective obedience than individual transgression; (2) nonetheless, individual criminal responsibility, premised on deviant or pathological conduct and rooted in ordinary criminal justice systems, has ascended as the first-​best form of accountability for communally committed and communally inflicted atrocity, thereby bestowing upon the atrocity trial iconic status as the vehicle to deliver justice;4 and (3) the atrocity trial falls short of its goals, which include retribution, deterrence, expressive story-​telling, rehabilitation, and reconciliation, in part because of the structural disconnect between (1) and (2). I first elaborated these arguments in my 2007 book Atrocity, Punishment, and International Law (Drumbl, 2007). Over the past decade, having thought about it further and through the prism of prosecutions that have since occurred, I believe these arguments still hold. Hence, this chapter reprises those earlier arguments (and unpacks challenges brought thereto), although also refreshes by refracting these arguments through the prism of subsequent and ongoing investigations and prosecutions. 2 

“Berlin Man, 95, Charged Over 36,000 Deaths in Nazi Camp,” France 24 (November 23, 2018). Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 4  This move also equates anti-​impunity with criminal punishment, which worries some commentators as interfacing oddly with the promotion of human rights. See, e.g. Engle (2017); Savelsberg (2018). 3 

78   Mark A. Drumbl Although amply discussed in Part 3 later, I begin by foreshadowing a few caveats. The first caveat is that the lines among these categories are porous. Indeed, certain ordinary common crimes (for instance: gang violence, racketeering, trafficking, and corporate fraud) may share certain of the collective characteristics of extraordinary international criminality. The second caveat is that although ordinary criminal process and our experiences with common criminals undoubtedly can teach us something about mass atrocity, epistemologically, this base of preexisting knowledge does not have all the answers. The complex sources of atrocity, the multitudes of victims and perpetrators, and the organic nature of responsibility confounds typical processes and institutions.5 Ignoring or denying the uniqueness of the criminality of mass atrocity stunts the development of effective methods to promote accountability for mass criminals. I also introduce a third caveat that has filled my thoughts lately; the role within atrocity of opportunists, chameleons, and shape-​shifters. These people go along to get along, as they socially and operationally navigate the crevices of authoritarianism and niches of ideological purity. These are the colluders, the connivers, and the collaborators. They present a conceptual challenge: is opportunism during atrocity, and times of state-​centric oppression, a dynamically different force than opportunism during “ordinary” times? How do these same opportunists interface with transitional justice? Do they do so (once again) opportunistically?

2.  Connivance in the Collective: Targeting the ‘Other’ Extraordinary international crime often flows from organic groupthink in the moments and places where it is committed, making individual participation therein less deviant and, in fact, more of a matter of conforming to a social norm (Alvarez, 1997). While this deep complicity cascade does not diminish the brutality or exculpate the aggressor, it does imperil certain assumptions about bystander innocence and the salutary role of the international community. Furthermore, this cascade squeezes out histories of colonialism and exploitation and transnational capital, thereby assuaging the many by blaming the few. As atrocity becomes more wide-​scale in nature, and more, it becomes more difficult to construct participation therein as deviant. Simply put: most perpetrators, as Alette Smeulers (2008, p. 973) writes, are “ordinary people in extraordinary circumstances.”6 In some cases, states themselves may perpetrate crimes instead of serving as the authorities who prevent and punish crimes—​a phenomenon which Smeulers and Holá (2009, p. 2) note “turns the theoretical framework of [some] criminologists upside down. . . . ” James Waller (2002, p. 87) flatly remarks that “the most outstanding common characteristic of perpetrators of extraordinary evil is their normality, not their abnormality.” Even less deviant is the complicity and acquiescence of the bystander. This complicity and acquiescence falls outside of

5 

See for example Hagan et al. (2005). For detailed discussion of individuals as perpetrators of atrocity crimes see also Chapter 12 by Alette Smeulers in this volume. 6 

Atrocity Crimes as a Different Type of Crime?    79 the reach of criminal law but constitutes an essential prerequisite for violence to become truly massive in scale. Part of the challenge of purposively responding to mass atrocity, and preventing it, is to assess how law can implicate the complicit and acquiescent masses who are responsible even if not formally guilty. Criminal law does not reach bystanders, so how could it ever deter them, stigmatize their involvement, or accord them their just deserts? Ordinary criminal law operates in a continuous national or local context to manage routine violations of law; extraordinary international criminal law operates in a dynamically discontinuous context of collective crisis and recovery. A paradigm of individualized culpability may well be suitable for deviant isolated crime. This same paradigm, however, is ill-​ fitting for crimes committed by collectivities, states, and organizations. Group crimes can be the aggregate of the participation of all involved individuals; however, they can also constitute a sum that exceeds the parts. Yet, international criminal law continues stubbornly (or reflexively) to “borrow its main elements and structures from domestic criminal law” (Ambos, 2014, p. 219). Victims of extraordinary international criminality are targeted en masse based on discriminatory grounds. Once the discrimination takes root, it initially leads to the social deaths of the victims. “Social death” means ostracizing and dehumanizing the victim group. Its members get pushed like rubbish to the edges of society and are subjected, often by law, to the dominion of the aggressor group. Propaganda plays a key role, as does “othering.”7 Degrading epithets such as cockroaches, maggots, vermin, excrement, dogs, lice, and merchandise are used to refer to members of the “other” group. Bandura (1973) unpacks the notion that the process of murdering is abetted by a process of desensitization that scuttles the dignity of the target. It is much easier to kill that which already has been deformed by social death. I would extend this notion beyond murder to other manifestations of extraordinary international criminality. The following example, summarized by James Waller (2002, p. 244), is telling: A story in the New York Times that appeared on the last day of 1994 describes an incident in which a Bosnian Serb, armed with an automatic weapon, knocked on the door of a Muslim neighbor and ordered her outside. The Muslim woman proclaimed, “Visovic, you know me, you know my husband. . . . How can you do this to me?” Visovic replied: “That time is over. I no longer know you.” Whereupon he ordered her to crawl along the street as he kicked her repeatedly.

Similarly, in one of the initial Rwandan gacaca sessions, one official commented: “Celui qui tuait ne voyait pas qu’il tuait un homme, il croyait tuer un animal suite aux leçons données par les autorités d’alors.”8 Victims are not selected because of individual fault, but merely because of their actual or perceived membership in a despised group (Bassiouni, 1988, p. 183). For example, the Khmer Rouge murdered the Cambodian professional classes because they were believed to present a group threat to the veneration of peasant life. No attempt

7  See also Chapter 9 by Jonathan Leader Maynard in this volume discussing the role of ideology and propaganda in atrocity crimes. 8  Translated: “He who killed did not see that he was killing a man; in light of the lessons given by the former authorities, he thought he was killing an animal.” Rapport d’observation, Les Juridictions Gacaca 3 (6 juillet 2003), Cellule de Karukamba, ASF-​Belgium.

80   Mark A. Drumbl was made to select victims based on verifiable individual threats they posed to individual members of the aggressor group. The degree of collectivization (whether among aggressors, bystanders, or victims) will differ in each case of mass atrocity, but it is always present.

3.  Who’s Responsible? 3.1.  Perpetrators Perpetrators of mass atrocity are not a uniform group. They divide into four broad categories. First, at the apex, are conflict entrepreneurs: namely, those individuals who exacerbate discriminatory divisions, which they then hijack. Among their goals is to acquire and retain political power. Second are those leaders who, while exercising authority over others and often ordering killings, themselves remain subject to authority and, accordingly, are ordered into ordering others. Authority, after all, is situational. The third category includes the direct physical perpetrators. This category is often very large in number. Below this category lies a fourth: those victims who victimize as discussed later. These groups represent descending levels of moral blameworthiness for atrocity. Let us begin out of order, with the third category of direct physical perpetrators. And let us do so by telling the story of Anastase Nkinamubanzi, from Rwanda, a bulldozer driver. Nkinamubanzi’s entanglements with atrocity began in April 1994, co-​terminous with the start of the Rwandan genocide, in which 800,000 members of the Tutsi ethnic group were murdered by the majority Hutu group. At one point, over 2,000 frightened Tutsis huddled in a church in Nyange, a rural parish in western Rwanda. They sought shelter from widespread attacks incited by Hutu extremists. The attackers were determined to eliminate the Tutsi as an ethnic group. They extirpated individual Tutsi as a means to this end. Although the refugees thought the church to be a safe place, and were encouraged to hide there by parish priests, it quickly proved to become a corral that simply accelerated their erasure. The church’s priests decided to destroy the church. As a result, Nkinamubanzi was engaged to commandeer a bulldozer (referred to as a Caterpillar, possibly in light of its manufacturer). He spent three days manning a bulldozer to level the church with the Tutsi refugees clogged inside. Those Tutsis who survived the razing of the church were eventually stabbed, clubbed, or shot. Four years later, six individuals were prosecuted in a Rwandan court on charges of genocide and crimes against humanity for the Nyange church massacre.9 One of these was Nkinamubanzi, also referred to as Defendant #1. The case report reveals something about him, and how he saw his actions during the massacre. He was born in 1962, was a bachelor, and worked as a driver (“chauffeur”) (p. 1). He had no assets nor any prior criminal record. The case report also sets out, through the sterility of legal prose, the proof underpinning accusations that he spent three days mechanically bulldozing a church with 2,000 Tutsi trapped inside. At the end of the third day, with the church then razed, Nkinamubanzi

9  Case Nkinamubanzi et al., (1ière instance, Kibuye), RMP 50919/​S4/​GM/​KBY/​97, RP CH.SP.014/​01/​ 97 (April 17, 1998) p. 2.

Atrocity Crimes as a Different Type of Crime?    81 calmly asked the priests for compensation for the public service he had provided (p. 14). The court found Nkinamubanzi guilty of most of the charges brought against him, including genocide. Upon conviction, he was sentenced to life imprisonment and stripped of certain privileges and rights. Although the court did not formally accept his guilty plea, which was inexact and untruthful, the court was influenced by his having asked for forgiveness and weighed this as a mitigating factor. According to the case report, however, Nkinamubanzi subsequently was acquitted on appeal.10 Nkinamubanzi’s story tells us that perpetrators may see killing as work, public service, a project owed to state and society. To be sure, extraordinary international crimes violate jus cogens norms and, thereby, are universally condemnable. That said, whereas for the most part individual participation in ordinary crime deviates from generally accepted social norms in the place and time where the crime is committed, extraordinary crime has an organic and group component that makes individual participation therein not so self-​evidently deviant. Participation is often a matter of obeying official authority, not transgressing it. The scale of the violence may sprawl. As Ambos (2014, p. 219) claims, this violence constitutes “macrocriminal conduct” for which sufficiently developed principles of liability remain lacking. Nyseth Brehm et al. (2016) have found, drawing from Rwanda and a gender-​based analysis, that genocidal participants may believe they are defending their communities against a perceived threat. Thus, adults may participate in genocide to fulfill their duties as adult men.

3.2. Persecution by the persecuted The border between victims and victimizers is not always firm, but is at times porous. Victims may in fact become victimizers; persecuted individuals may in turn persecute their persecutors, their group compadres, or innocent third parties (Osiel, 2005, p. 805).11 The dual status of such individuals simultaneously presents therapeutic and punitive dilemmas. In recent years, I have written about the conundra posed by these dual roles in the cases of child soldiers and in the contexts of inmate “collaboration” in the Nazi concentration camps (Drumbl, 2016). The criminal law, I argue, is gnarly and uncomfortable with adjudicating a victim who hurts others, but those others harmed by a victim also have claims and rights to justice. Their voices ought to be heard and raised. Criminal courts are ill-​fitting venues for such conversations, as the case of the forty-​some-​odd Kapo collaborator trials held in Israel in the 1950s reveals (Drumbl, 2016). Such compromised perpetrators of the gravest collective crimes may lack individual intent as they may act out of desperation or survivalism. They act tactically, to make it through to tomorrow, rather than strategically. Yet those fellow group members hurt by such acts deserve an audience, they deserve expiation, they too are entitled to redress. Criminal trials modeled on typical penal procedure fall short. At least in the case of the Israeli Nazi and Nazi Collaborators Act when the Knesset

10  Cour

d’appel de Ruhengeri (October 25, 2000). No reasons for the appeal are given in the case report provided by Avocats sans frontières (available at www.asf.be). 11  For detailed discussion of role shifting in atrocity crimes see also Chapter 14 by Erin Jessee in this volume.

82   Mark A. Drumbl applied such penal procedure to Jewish “collaborators” who had immigrated to Israel after the Holocaust. Refusing to distinguish the Nazis from persecuted collaborators proved far too crude, in particular, when it came to small “collaborators” such as the Kapos; appellate interventions were extensive; and, while judges were of different minds, the verdicts squirm with disquiet about the delegated task at hand regarding punishment (Ben-​Naftali & Tuval, 2006, p. 161). Punishing the Kapo, it was remarked, somehow diminished Nazi guilt (Bazyler & Scheppach, 2012, p. 431). Judges at times used harsh language to denounce the accused, but when it came to sentencing, they evoked sentiments of clemency, empathy, and mercy. The exercise of applying law expiated little as it frustrated a great deal.

3.3. Conflict entrepreneurs and declaratory international criminal procedure A widely held assumption posits that leaders and those in superior positions in the chain of command are, owing to their positive governance obligations, more fitting for prosecution and weightier punishment for their involvement in mass atrocity. This position has been internalized by international lawmakers. Accordingly, prosecutorial efforts have tilted toward defendants in higher-​ranking positions. That said, this tilt certainly has not immunized rank-​and-​file killers from prosecution in international criminal tribunals. Lower-​level offenders have been prosecuted by international tribunals for a number of reasons, including strategic concerns such as the prosecutor’s ability to obtain custody, the defendant’s willingness to implicate others, and availability of (or access to) inculpating evidence. Nearly all the prosecutions that took place at the East Timor Special Panels involved low-​level, and often poorly educated, offenders. The International Criminal Tribunal for the former Yugoslavia (ICTY)’s early convictions involved Dražen Erdemović, a young mentally—​and emotionally—​challenged soldier of the Bosnian Serb army, and Duško Tadić, an essentially indistinguishable thug. At the International Criminal Court (ICC), moreover, the three convictions that remain standing as of 2019 each involves a “middle fish” in a rebel group—​no high-​level state officials here.12 In fact, by self-​referring these situations to the ICC, high-​level state officials may have insulated themselves from possible liability and, thereby, contributed to impunity while externalizing their fight against rebel groups into the solemnity of The Hague. The ICC has failed to bring all indicted high-​level state officials into custody and when they enter custody and are prosecuted, they tend to be acquitted, or the prosecutor is unable to make a case against them. This failure is seen, for example, in each of the Kenya, Central African Republic, and Côte d’Ivoire situations. A concludedng ICC trial involving Dominic Ongwen also presents a rebel leader, albeit in his case, one who was forcibly abducted into northern Uganda’s Lord’s Resistance Army at the

12  These are Thomas Lubanga, Germain Katanga, and Ahmed Al-​ Mahdi. Bridging back to David Bowie and his solarized bulldozer, it was Al-​Mahdi who arranged and resourced a bulldozer to level some putatively heretical Sufi shrines in Timbuktu, Mali, in non-​international armed conflict in 2012–​ 2013 in the name of Salafism. Another convict, Bosco Ntaganda, a rebel leader in the DRC, similarly fits this profile.

Atrocity Crimes as a Different Type of Crime?    83 age of nine, brutalized and beaten, who rose through the ranks, and in turn was convicted at trial to have committed extensive abuses. Whether Ongwen is a “big fish” is somewhat debatable. Still, in a declaratory sense, the stated and venerated prosecutorial focus on influential defendants squares with the reality that certain leaders who act as conflict entrepreneurs create the social norms that trap others as captive participants. They are who Shahram Dana (2019) calls “enablers.” These entrepreneurs strategically normalize hatred that may initially have been deviant and isolated. As such, sanctioning their behavior may conform to a criminology and penology that censures deviance. However, international criminal tribunals have not staked out a consistent penological position when it comes to sentencing leaders as opposed to subordinates. In fact, an ICTY Trial Chamber noted that the case law “does not evidence a discernible pattern of . . . imposing sentences on subordinates that differ greatly from those imposed on their superiors.”13 Furthermore, this focus fails to address a central concern. Atrocity would not reach truly epidemic levels but for the vigorous participation of the masses, or the “little fish.” For many rank-​and-​file killers, as discussed earlier, participating in atrocity is not deviant behavior. Even less deviant is the complicity and acquiescence of the bystander. The complicity and acquiescence fall outside of the criminal law paradigm but constitute an essential prerequisite for violence to become truly massive in scale.

3.4. Bystanders, side-​standers, stand-​asiders A much larger group of individuals also bears responsibility for atrocity even though its members are not stricto sensu perpetrators. This group comprises what may interchangeably be called bystanders or side-​standers or stand-​asiders: those multitudes who comply in the violence, who acquiesce in it, or who idle while it unfolds around them.14 In many cases, these individuals benefit ideologically and politically from the atrocity. Atrocity actualizes their self-​worth through group pride. They feel part of a grand social project without bloodying their own hands. These individuals also gain from atrocity in a more craven, materialistic way. They may, for example, opportunistically move into a suddenly vacant apartment, double the size of their farm, or get a promotion at work. One way to describe this subset of bystanders is as beneficiaries. Not all bystanders are beneficiaries, but many are. However, nearly all bystanders, even benefiting bystanders, fall outside of what international criminal law defines as “guilt.” Part of the riddle of purposively responding to mass atrocity, and preventing it, is to assess how law can implicate the complicit and acquiescent masses who are responsible, even if not formally guilty.

13  Case

Krstić (Trial Judgment) IT-​98-​33-​T (August 2, 2001) para. 709 (conclusion left undisturbed on appeal). 14  See also Chapter 13 by Roland Moerland on individuals as bystanders in atrocity crimes in this volume.

84   Mark A. Drumbl

3.5. Social psychology profiles of those responsible To be sure, not all atrocities or atrocity perpetrators fit the same psychosocial profile. There are cases in which human rights abuses are perpetrated top-​down, through occasional and targeted covert state operations, such as in Pinochet’s Chile. In these cases, leaders plausibly could be punished for deviant behavior because they themselves recognized that what they were doing was wrong, and that is why they covered it up. In Pinochet’s Chile, torture by the National Intelligence Directorate (DINA) was done in isolated basements. The victims of Operation Condor were furtively thrown out of helicopters. Death flights in Argentina in the 1970’s and early 1980’s, which targeted political opponents of the military government, similarly resulted in secretive deaths in the depths of the sea. Alternately, megalomaniacal leaders can encourage and reward violence initiated through party or military bureaucracies that involve broad networks of agents, informants, and sycophants. This apparently was the case in Saddam Hussein’s Iraq and Muammar Kaddafi’s Libya. But there are other cases where conflict entrepreneurs exhorted violence and, in response, substantial numbers of average people ordinarily disconnected from the political process eagerly butchered other human beings, in full view of the public, with the acquiescence or complicity of many of their fellow citizens. Peter French (2001, pp. 32–​34) writes that extraordinary international criminals tend to exemplify an Aristotelian vision of wickedness. Aristotle, French notes, conceived of wickedness that is perpetrated by persons who do not believe that what they are doing is wrong or immoral. French contrasts this conception with what he identifies as a Christian conception of wickedness, which is “preferential” in the sense that the perpetrator knows that the act is morally wrong but still undertakes it. Referencing the Balkan atrocities, French (2001, p. 33) concludes that “media accounts of the average Balkan war criminals reflect an Aristotelian rather than the Christian conception.” In fact, “[t]‌he reports make it appear that the perpetrators did what they did believing (albeit perversely) that it was the right thing to do,” as perpetrators “are described as brimming with righteousness while carrying out the atrocities of ethnic cleansing” (French, 2001, p. 33). The more the violence is linked with group-​based characteristics, the more perpetrators seem to exemplify an Aristotelian conception of wickedness rather than a Christian conception; and the easier it becomes to kill rather than break away from the dominant group of killers. Drawing from their fieldwork in Bosnia, legal scholars Laurel Fletcher and Harvey Weinstein (2002, p. 605) identify a “communal engagement with mass violence” that, in their estimation, criminal trials leave unaddressed. They propose that individuals may not always have control over their actions in the context of collective events, particularly cataclysmic events. Participants may be captives of social norms; at a minimum, they certainly are captivated by those norms. The breadth of these norms could be such that the violence itself, as Arendt (1965, p. 252) provocatively noted, becomes nothing more than banal in the time and place where it is committed. Paradoxically, persons with a weakened sense of individual autonomy and independence commit crimes that are normatively deemed more serious than ordinary domestic crimes. Perpetrators of extraordinary international crimes generally belong to a collective that shares a mythology of ethnic, national, racial, or religious superiority, perhaps even infallibility (Tallgren, 2002, p. 573). Psychologists such as Gustav Le Bon and Sigmund

Atrocity Crimes as a Different Type of Crime?    85 Freud, as well as theologians like Reinhold Niebuhr, have suggested the “regression inherent in group behavior;” they have noted the effects of the group on individual personality, including how group association fragments conscience and facilitates emotion over judgment (Waller, 2002, pp. 30–​32). What is more, group dynamics may diffuse responsibility, obscure individual decision-​making, and suppress dissent. Waller (2002, pp. xiii, 87) flatly remarks that “the most outstanding common characteristic of perpetrators of extraordinary evil is their normality, not their abnormality,” noting also that “[a]‌s collectives, we engage in acts of extraordinary evil, with apparent moral calm and intensity of supposed purpose, which could only be described as insane were they committed by an individual.” Those who commit extraordinary international crimes may be the ones conforming to social norms whereas those who refuse to commit the crimes choose to act transgressively. Nor can these perpetrators generally be diagnosed as psychotic. Admittedly, some are (Judah, 1997, p. 233). One example is Amon Göth, Nazi commandant of the forced labor camp at Płaszów (Kraków) between February 11, 1943, and September 13, 1944, who was sentenced to death by a Polish court following World War II. Many decades later, Göth was portrayed by Ralph Fiennes in Steven Spielberg’s film Schindler’s List as “an irrational, sadistic monster who took pleasure in personally inflicting torture.”15 The evidence against Göth at his trial was overwhelming. Göth was found guilty of the accused crimes, many of which he committed on his own initiative. Göth lorded over the Płaszów camp and ostentatiously discarded any pretense of rules or regulations: Göth lived a very high style of life, in a luxury villa, where drinking parties were never ending, to which his friends from Kraków were invited. He had his permanent orchestra, consisting of prisoners and servants, whose members he was killing at the slightest excuse, or simply when being drunk. He had two dogs, one called Ralf and the other called Rolf, both trained to attack and savage people. Many people have lost their lives, following being attacked by these dogs, on command of Göth.16

However, other than a few certain notoriously sadistic offenders, the evidence does not suggest that most atrocity perpetrators are insane, demented, or ill. Waller (2002, p. 70) surmises that there: is no reason to expect that the distribution of [antisocial personality disorder] among perpetrators of genocide is any greater than that of the general population; there are actually very good reasons to expect that the distribution is less than that of the general population. . . .

15  Laurence

Rees, Rudolf Höss—​Commandant of Auschwitz (on file with the author, last updated February 17, 2011, available at http://​www.bbc.co.uk/​history/​worldwars/​genocide/​hoss_​commandant_​ auschwitz_​01.shtml). 16  Holocaust Education & Archive Research Team, The Trial of Amon Göth, at p. 7 of printout. Göth’s convictions for directly and personally murdering and torturing massive numbers of prisoners were based on extensive witness testimony. “Göth very often fired through the windows into the barracks, killing prisoners, with his own hands, beating prisoners with his whip, until they were unconscious, as well as systematically sentencing people to be whipped, across a bare back 25 or 50 times, in front of groups of people. Hanging by the arms, detention in bunkers, ravaging by dogs, these were the methods in daily use and application of the accused.”

86   Mark A. Drumbl Even if we were to broaden our search for psychopathology beyond [antisocial personality disorder], it is doubtful that rates of abnormality among perpetrators run any higher than what we find among the general population.

Douglas Kelley (1947), a psychiatrist dispatched to the Nuremberg proceedings, famously did not find evidence of psychiatric disturbance among the defendants. He may have wished to find such evidence, because it would make everyone feel better about the abnormality of the Holocaust, but he was not able to find any. Waller (2002, p. 63), for his part, notes that “none of the experts wished to go on record as stating that, according to psychological test data, many of the Nazis may actually have been normal or even well-​adjusted.” In fact, the leaders of Nazi Germany were “for the most part, extremely able, intelligent, high-​functioning people. . . .There was no evidence of thought disorder or psychiatric condition in most of these men” (Waller, 2002, p. 66). Even though it would make it easier for the rest of humanity to distance themselves from the perpetrators by proving how insane, or deviant, the Nazis were, they really were neither. Ironically, in Nazi Germany an effort was made to weed out sadists and psychopaths from even the most extreme killing personnel—​for example the Einsatzgruppen—​insofar as it was felt that such persons “would not be as efficient, effective, and dependable as killers . . .” (Waller, 2002, p. 67). Browning (1992) has come to similar findings. To return to Göth for a moment on this note: his sadism was such that he was actually first arrested by the SS (in 1944) and tried by a German SS court. His arrest effectively ended his career. Göth fraudulently misappropriated considerable inmate property for personal use, rather than confiscating it for official Reich purposes. He thereby amassed a fortune. What is more, Göth’s cruelties were so excessive that they flouted SS regulations regarding how a labor camp was to operate. He was so violent and rash with his own staff (he killed SS men) that his superiors became concerned. Göth’s arrest by the SS demonstrates the Nazi tendency not to favor sadists or persons who zealously killed for their own personal enrichment. SS doctors reportedly diagnosed Göth with mental illness—​he was arrested by the U.S. military in May 1945 while in a sanitarium in Germany (McKale, 2012).

4.  Challenges, Skepticism, Doubt, Reinforcement I argue that atrocity crimes, in particular the subset which I refer to as extraordinary international crimes, are different than ordinary common crimes. I have heard many reactions to this argument. Some are challenges. And these challenges have caused me some doubt. But ultimately these challenges, however thoughtful, do not shake my sensibility that my arguments are grounded and relevant. Here I present two challenges I have heard with some regularity, which I distill into their most pointedly effective form. Although these two challenges pull in different directions, they share the common precept that the lines between the extraordinary and the ordinary are blurred, and that I may have overdrawn them. I also introduce something that is not a challenge but, rather, a new source of vexation when it comes to thinking about the

Atrocity Crimes as a Different Type of Crime?    87 hydraulics and pneumatics of collective atrocity: a phenomenon I tentatively call the banality of opportunism. The first challenge posits that a number of ordinary domestic crimes share certain of the collective characteristics I ascribe to extraordinary international crimes. This overlap suggests that, in some instances, the distinction between ordinary crime punishable under domestic law and extraordinary crime punishable under international law is not clear-​ cut. For example, domestic crime such as gang activity, drug offenses, hate crimes, certain white-​collar crimes, and organized crime may arise from adhesion to a certain code or norm within a particular community. These may be intensely social crimes, deeply collaborative at the sub-​group level. Accordingly, so goes the critique, it would be far too absolutist to posit that deviance theory serves as a basis to ground all criminal sanction in ordinary domestic contexts. In response, I would certainly agree that there is a subset of ordinary common crime where the deviant nature of individual involvement in the criminality is not self-​evident. Within this subset, there is an unequivocal need for criminological and penological research that recognizes the influence of the group as a social agent and the structural nature of criminogenic conditions. Collaterally, international lawyers concerned with mass atrocity can learn from their domestic counterparts concerned with gang activity and hate crimes. However, the existence of this subset does not impugn my position that ordinary common crime and extraordinary international crime can be differentiated along an axis of deviance. Violent acts such as murder, torture, infliction of physical harm, and sexual assault deviate materially more from social norms operative in ordinary times in ordinary places than they do from social norms in places afflicted by the breakdown and remobilization that are conditions precedent to mass atrocity. The breakdown and remobilization during mass atrocity are much more transformative than anything experienced within violent sub-​ cultures within ordinary polities. Whereas the state punishes infractions of ordinary criminal law, in situations of mass atrocity, the entire apparatus of the state urges the violence and can even go so far as to sanction non-​participation. A society in the throes of mass atrocity, particularly discrimination-​based atrocity, is often one in which the law says that killing members of the “other” group is legal, whereas killing a member of your own group is not (unless that member opposes the eliminationist policies). To return to Arendt (1965, p. 272): “Nothing is more pernicious . . . than the common illusion that the crime of murder and crime of genocide are essentially the same. . . . The point of the latter is that an altogether different order is broken and an altogether different community is violated.” Downes and Rock (1998, p. 26) define deviance as “banned or controlled behaviour which is likely to attract punishment or disapproval.” Deviants “tend to make their lives rather more hazardous and problematic” (Downes and Rock, 1998, p. 26). They demonstrate a “real strain toward concealment” (Downes and Rock, 1998, p. 27). Yet individuals who participate in truly mass killing engage in an activity that is not banned and which may even be public. Those who refuse to participate are the ones who generally make their lives more hazardous and problematic. In the prelude to and implementation of mass atrocity, group leaders distribute weapons, build industrial extermination facilities, feed and house murderers, and, in some cases, provide them sexual slaves. All of this is done in order to facilitate the targeting of victims simply based on their immutable characteristics, not any threat the victims actually pose as

88   Mark A. Drumbl individuals to the group, to its control of territory, or to its status. In those few areas of ordinary domestic criminality where individual deviance is obfuscated by group ordering, such as certain gang activity, this group ordering simply does not rise to the level of conforming to the dictates of a criminal state. Even if gang-​related delinquency amounted to what Albert Cohen calls a “ ‘way of life’ in . . . inner urban neighbourhoods,” (Downes and Rock, 1998, p. 149), this lifestyle is defined in opposition to the mainstream. Travis Hirschi (1969, p. 16) found that, for control theorists, delinquent acts “result when an individual’s bond to society is weak or broken.” The killer in contexts of mass atrocity, on the other hand, often exhibits a very strong bond with both state and society. It is the delinquent in cases of mass atrocity who dissociates from the group. The ideal-​type portrait of the non-​delinquent includes being imbued with a strong belief in the need to obey rules, not deviate from them (Downes and Rock, 1998, p. 240). In the cauldron of atrocity, it is Holmes’ good person and the Hartian official, both of whom internalize the value of positivist state law, who conform to the societal expectation of extirpation. The second challenge is somewhat obverse to the first. This challenge posits that extraordinary international crimes really are not that extraordinary; in fact, they are not aberrational but, rather, are sufficiently commonplace throughout history so as to become ordinary. Arguendo, it is perfectly reasonable to subject them to the processes and modalities of ordinary common crime. Yet it does not seem tenable to posit that occurrences of mass atrocity are as commonplace as occurrences of, say, armed robbery or arson to claim the insurance money. Mass atrocity that implicates an “international interest,” to borrow from Larry May’s (2005, pp. 99, 106) characterization of international criminality, is far from routine. Discrimination-​based violence, such as genocide and persecution as a crime against humanity, that results in the mobilization of entire societies into the killing of masses of people just because of their membership in another group is not a matter of course. Participation in an atrocity after it has begun may be a matter of simply conforming to a social norm, and hence be prosaic, but creating an atrocity that eliminates or cleanses a group based on discriminatory grounds is not an ordinary everyday occurrence. This response can be unpacked further. I underscore the importance of not falling into the trap that equates campaigns of genocide and crimes against humanity with war. Even if war were ordinary, this does not mean that genocide or crimes against humanity are as well. Both are quite distinct from war. As the Rwandan and Yazidi experience instructs, genocide and war are separate initiatives with separate goals. The Holocaust is not the same as Nazi aggression. Moreover, unlike campaigns of genocide or ethnic cleansing, under international law, war exceptionally can be lawful. Moreover, genocide and crimes against humanity differ in important regards even from those acts that amount to unlawful conduct in war, namely war crimes (violations of the jus in bello) or the unlawful waging of war (violations of the jus ad bellum that lead to the crime of aggression).17 The distinction between war crimes, on the one hand, and crimes against humanity and genocide, on the other, is reflected in the Rome Statute’s designation of the latter two as manifestly illegal but not the former. Interestingly, the ICC so far largely

17  “While a state may be fairly confident that its officials will not commit genocide or crimes against humanity, the same cannot be said for war crimes, which are an omnipresent danger in times of armed conflict” (Cryer, 2005, p. 268).

Atrocity Crimes as a Different Type of Crime?    89 has convicted for war crimes, unlike the ICTY and the International Criminal Tribunal for Rwanda (ICTR). Moreover, the war crimes for which the ICC has thus far (early 2019) issued convictions have been ones relatively lacking in gravity (pillage, child soldiering, and intentional attacks on cultural property). Perhaps these are the sorts of crimes that can be deterred by an international institution. Perhaps they can be best deterred because national armies can adopt rules that prohibit the enlistment of minors (though, once again, the ICC has not convicted any national actor); can develop specific rules that protect cultural buildings in armed conflict; can devise oversight over the commander who pillages. But these crimes are not the ones at the heart of international criminal law, nor the ones whose repression ideationally energized the creation of the ICC in the first place. Stathis Kalyvas (2003) has found that many participants in a historical range of civil wars in places as diverse as the United States, England, Lebanon, Afghanistan, and Liberia were motivated by materialism, greed, and avarice. The wrongdoing inflicted by these participants, some of which rises to the level of war crimes, therefore is not inspired by ideological public motives such as the promotion of group identity but, rather, by private motives as pithy as thievery. Conduct within the framework of non-​ideological civil war that Kalyvas notes is animated by self-​interested materialism, which targets victims not as indistinguishable members of a group but, rather, because of their individual wealth, standing, prior conduct, and assets. Although I do not believe that even the most privately motivated thief in the chaos of civil war can be paralleled to the most privately motivated thief in a stable polity, one inference that arises from Kalyvas’ research is that ordinary criminal modalities may be appropriate to capture individuals who commit war crimes when acting upon materialistic motivations, especially when doing so through individual action independent from the group. That said, and once again, this inference does not extend to foot soldiers of atrocity, fueled by ideological and political goals, who turn to horrific violence to further the collective good of the group of which they are so proud. Of course, some participants in eliminationist genocide are encouraged by prospects for lucre and material gain or simply to settle personal vendettas; other participants are inspired by a medley of private and public motives. However, arguably material motivations exert considerably greater influence on routine civil war participants than on actors in ethnic eliminationism for whom ideology constitutes the catalytic motivator. Lessons from ordinary criminal law appear of least value when it comes to punishing participants in ideologically motivated discriminatory violence designed to bleach society of the “other.” These crimes are often state crimes, instead of crimes committed against the state. As Milanović (2006, p. 603) notes: “Genocide is indeed a state crime: there is not a single instance of genocide in recorded history which was not committed either directly by a state, or by a state through one of its proxies.” In some instances, people who commit atrocity crimes may have begun as ordinary common thugs. The documentary The Act of Killing, for example, reenacts the ways in which killers associated with the Indonesian government persecuted and garroted alleged communist sympathizers in the 1960s. The killers, who served as actors in a film, featured in the documentary they themselves made about themselves, entered the conflict as petty criminals who sold theater tickets on the sly and engaged in two-​bit crime. Yet they then killed thousands. What about the role within atrocity of opportunists, chameleons, and shape-​shifters—​ colluders, connivers, and collaborators—​who go along to get along as they conveniently

90   Mark A. Drumbl navigate the crevices of authoritarianism? In many instances, for example throughout formerly Communist Eastern Europe, these actors triggered great harms on others through tattling and telling, rattling about and ratting out, and snitching. These harms, however, are banal, not because they are widespread or committed mechanically with indifference, but rather because they are afterthoughts to other motivations: assuaging loneliness, getting a better job, controlling a lover, isolating a rival, winning an argument, moving into a larger apartment, spite following a rebuke. When accreted, these acts build a sum of terror that is much larger than their individual parts. So, thus, how should international criminal punishment speak of the collective malaise occasioned by opportunism? Is opportunism during atrocity, and in times of collective oppression, a dynamically different force than opportunism during “ordinary” times? Can penal frameworks render this shape-​shifting intelligible? If not, then, another shortcoming arises, namely, that the violence associated with these forms of collaborationism remain underappreciated and thinly theorized, such that the place of opportunistic social navigators within the transitional justice process also remain underconceptualized. Indeed, they may be lustrated from the state or the state may disappear, leaving them jobless. The effects of these purges on occupational presence remain unclear, however, in light of the rapidly growing private neo-​liberal market sector that supplants the state and the official public sector in terms of economic and social importance. In Sofia, Bulgaria, for example, there is a museum called the “Red Flat.” It is a one-​bedroom apartment of a family of three that depicts their lives in the 1980s. The flat is congenial, the ambience warm, a sense of spartan contentment fills both the upholstery as well as the air. During the era of communism, the father did well. He was an engineer who was dispatched often to Libya. There he earned a jackpot in hard currency. The family, too, did well as a result. We learn that the father, who very successfully navigated communist life, falls into a depression after the end of communism as his Bulgarian state job vanishes. But then, we learn, he “pulls himself up,” and goes into business and does even better. So much better, in fact, that the family moves into a much nicer place so that they can leave their erstwhile apartment in a cute part of the city to a foundation that turned it into a “living museum.” In Prague, the story of the prime example of Stalinist architecture in the city, built at the time as the Hotel Družba (collective, friendship) for dignitaries and ensconced tourists from elsewhere in the Warsaw Pact, also is telling. After the Velvet Revolution, this hotel too had a soft transition. Bought by private international chains—​passed along by Crown Plaza, Holiday Inn, now the Mozart Hotel Group—​its transitional justice “moment” involved a paint job on the star that adorns its central tower: from statist red to commercial green. In sum: at its core, this chapter concerns itself with extraordinary international criminality. In these specific cases of genocide and massive discrimination-​based crimes against humanity, the differences between ordinary common crime loom the starkest. Substantive proof of the guilt of genocide or crimes against humanity requires more than just proof of the actus reus of the violent act. In the case of genocide, guilt requires demonstration of the intent to wipe out a group in whole or in part. It is this goal—​eliminationism or extirpation—​that is extraordinary in its nature and bespeaks the manifest illegality at hand. Moreover, for persecution as a crime against humanity there also is a discriminatory animus. For all crimes against humanity there is the requirement to prove the systematic or widespread nature of the offense: which requires proof of a level of planning and organization that is found in few, if any, ordinary crimes. Also extraordinary is the broad network of collateral support that the perpetrators of these crimes enjoy, which simply does not apply

Atrocity Crimes as a Different Type of Crime?    91 to ordinary domestic crime. Ordinary people may become génocidaires, to be sure, but only under extraordinary circumstances.

5.  Conclusion The international community is prosecuting extraordinary international crimes without first having developed a thorough criminology of mass violence, a suitable penology for perpetrators, a thoughtful victimology for those aggrieved, or any appreciation of the banality of opportunism. In one of my very first published articles following my public defender work in Rwanda (Drumbl, 2000), I began with a quote with which I now end. This is from a song by Supertramp, “Asylum,” from their 1974 album Crime of the Century: Well I’ve been living next to you my friend But what kind of friend are you?

In my view, this vexing riddle still persists. International criminal law has not addressed it. International criminal law, and its architectural institutionalism, has failed to criminologically unwind and unspool the metastasis of hate and excommunication into the neighborhood, the village, the apartment complex, the bedroom, the barroom, and along the street, which leads to mass atrocity. International criminal law has built so much over these past two decades in terms of bricks and mortar and reams of pages of case law, but at the same time it has conceptually addressed so little. It continues to flail about, awkwardly, on borrowed and brittle stilts. In the end, the justice pursued by international criminal tribunals is at once overdrawn and also under-​inclusive. An independent theoretical understanding of the organic and myriad sources of mass atrocity shall not be deduced from a process of reduction animated by a strong preference for deviance-​based criminal law.

References Alvarez, A. (1997) “Adjusting to Genocide: The Techniques of Neutralization and the Holocaust.” Social Science History 21(2), pp. 139–​178. Ambos, K. (2014) “Individual Liability for Macrocriminality: A Workshop, a Symposium and the Katanga Trial Judgment of 7 March 2014.” Journal of International Criminal Justice 12(2), pp. 219–​229. Arendt, H. (1965) Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Viking Press. Bandura, A. (1973) Aggression: A Social Learning Analysis. Oxford: Prentice–​Hall. Bassiouni, C. (1988) “The Protection of ‘Collective Victims’ in International Law.” In: Bassiouni, C. (ed.) International Protection of Victims. Toulouse: Eres Publications, pp. 181–​198. Bazyler, M.J., and Scheppach, J.Y. (2012) “The Strange and Curious History of the Law Used to Prosecute Adolf Eichmann.” Loyola of Los Angeles International and Comparative Law Review 34, pp. 417–​461.

92   Mark A. Drumbl Ben–​Naftali, O., and Tuval, Y. (2006) “Punishing International Crimes Committed by the Persecuted: The Kapo Trials in Israel (1950s–​1960s).” Journal of International Criminal Justice 4, pp. 128–​178. Browning, Ch. R. (1992) Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland. New York: Aaron Asher Books. Cryer, R. (2005) Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. Cambridge: Cambridge University Press. Dana, S. (2019) Punishing Atrocities. Book monograph, PhD dissertation, Maastricht University, unpublished, under submission to publishers. Downes, D., and Rock, P. (1998) Understanding Deviance: A Guide to the Sociology of Crime and Rule Breaking. Oxford: Oxford University Press. Drumbl, M.A. (2000) “Punishment, Postgenocide; From Guilt to Shame to ‘Civis’ in Rwanda.” New York University Law Review 75(5), pp. 1221–​1326. Drumbl, M.A. (2007) Atrocity, Punishment, and International Law. New York: Cambridge University Press. Drumbl, M.A. (2016) “Victims who Victimise.” London Review of International Law 4(2), pp. 217–​246. Engle, K. (2017) “Feminist Governance and International Law: From Liberal to Carceral Feminism.” University of Texas School of Law Public Law and Legal Theory Research Paper Series No. 690, available at https://​papers.ssrn.com/​sol3/​papers.cfm?abstract_​id=3091260 (Accessed: February 14, 2020), pp. 1–​24. Fletcher, L.E., and Weinstein, H. (2002) “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation.” Human Rights Quarterly 24, pp. 573–​639. French, P.A. (2001) “Unchosen Evil and Moral Responsibility.” In: Jokić, A. (ed.) War Crimes and Collective Wrongdoing: A Reader. Malden, MA: Blackwell, pp. 29–​47. Hagan, J., Rymond–​Richmond, W., and Parker P. (2005) “The Criminology of Genocide: The Death and Rape of Darfur.” Criminology 43, pp. 525–​560. Hirschi, T. (1969) Causes of Delinquency. Berkeley: University of California Press. Judah, T. (1997) The Serbs: History, Myth and the Destruction of Yugoslavia. New Haven, CT: Yale University Press. Kalyvas, S.N. (2003) “The Ontology of ‘Political Violence’: Action and Identity in Civil Wars.” Perspectives on Politics 1(3), pp. 475–​494. Kelley, D.M. (1947) 22 Cells in Nuremberg: A Psychiatrist Examines the Nazi War Criminals. New York: Greenberg. May, L. (2005) Crimes Against Humanity: A Normative Account. Cambridge: Cambridge University Press. McKale, D.M. (2012) Nazis after Hitler: How Perpetrators of the Holocaust Cheated Justice. Lanham, MD: Rowman & Littlefield. Milanović, M. (2006) “State Responsibility for Genocide.” European Journal of International Law 17(3), pp. 553–​604. Nyseth Brehm, H., Uggen, C., and Gasanabo, J.D. (2016) “Age, Gender, and the Crime of Crimes: Toward a Life–​Course Theory of Genocide Participation.” Criminology 54(4), pp. 713–​743. Osiel, M. (2005) “Modes of Participation in Mass Atrocity.” Cornell International Law Journal 38, pp. 793–​822. Savelsberg, J. (2018) “Punitive Turn and Justice Cascade: Mutual Inspiration from Punishment and Society and Human Rights Literatures.” Punishment & Society 20(1), pp. 73–​91.

Atrocity Crimes as a Different Type of Crime?    93 Smeulers, A. (2008) “Punishing the Enemies of All Mankind.” Leiden Journal of International Law 21(4), pp. 971–​993. Smeulers, A., and Holá, B. (2009) “Criminology Discovers International Criminal Law.” Draft paper, International Studies Association Conference, New York, on file with the author. Tallgren, I. (2002) “The Sensibility and Sense of International Criminal Law.” European Journal of International Law 13(3), pp. 561–​595. Waller, J. (2002) Becoming Evil: How Ordinary People Commit Genocide and Mass Killing. New York: Oxford University Press.

PA RT I I

E T IOL O G Y A N D C AU SE S OF AT RO C I T Y C R I M E S

CHAPTER 4

Ori gins of Pre di c t i ng Geno cide and P ol i t i c i de Risk Assessments and Early Warnings Barbara Harff 1.  Introduction Genocide is widely perceived as a fundamental wrong, a delict. In criminal law, delicts carry sanctions and non-​compliance is punished. Even though genocide is a crime under international law, perpetrators often get away with murdering thousands. It took twenty-​ nine years to convict former communist Khmer Rouge head of state Khieu Sampan of genocide. In addition, the UN-​assisted court, called the Extraordinary Chambers in the Courts of Cambodia, judged him guilty of crimes against humanity. He was complicit or directly responsible for the deaths of 1.7 million people in a population of 7 million. Cambodia lost a generation and has yet to recover from the genocide committed by the Khmer Rouge between 1975 and 1979. Only an invasion by the Vietnamese stopped the Khmer Rouge from exterminating, enslaving, and torturing more people. It was the atrocity crimes in Cambodia that prompted me to coin the term “politicide.” In Cambodia, victims and perpetrators by and large belonged to the same ethnic group, which led to confusion as to the nature of the crime. Political groups are not mentioned in the Genocide Convention,1 though this was a matter of debate prior to its adoption. Because the primary victims of the Khmer Rouge were political adversaries, real and perceived, the murder of 1.2 million was not a genocide according to the convention. Under its terms, only Chams (a Muslim minority) and Vietnamese qualified as being victims of a genocide. The emphasis on membership in specifically defined groups in the Genocide Convention leads to obfuscation as to the severity and nature of the crimes committed. Applying the term “genocide” to situations of atrocity crimes provides (in principle) the legal basis for

1  Convention

on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention).

98   Barbara Harff collective or unilateral action. In addition, intentional murder labeled as genocide carries with it a particular stigma; any other classification invites apathy and appeasement, as we have seen in Sudan, Syria, Myanmar, and many other cases of mass atrocity crimes. This chapter focuses on my work in developing early warning systems of genocides and politicides (geno/​politicides). The hope (and goal) of developing early warning (EW) systems is that good EW contributes to the prevention of geno/​politicides. Warning of genocide ideally should trigger an automatic policy review. In what follows, I discuss the origins of predicting atrocities, focusing primarily on risk assessment of geno/​politicide rather than on EW. Risk assessment was doable in the 1990s. I had developed the theoretical and empirical base to apply this methodology to geno/​politicides prior to and during my membership in the U.S. State Failure Task Force, which was key to success. A great help was also the endorsement by the Bill Clinton administration promising unlimited funds and support personnel. The State Failure Task Force (later renamed the Political Instability Task Force) was established in 1994 at the request of then U.S. Vice President Al Gore as a reaction to the failure of the United States (and the international community) to prevent and react to the 1994 genocide in Rwanda. The goal was to create data-​based analyses on the conditions that preceded (by two years) the onset of political instability around the world. In addition to statistical, systematic analysis based on available global data, we used case studies and assessments by area specialists as supplementary information in our forecasting. As the only genocide scholar on the task force, my best guess is that I was chosen because I had the only data set of cases of geno/​politicides since World War II (46 cases) and had engaged in empirical research. In this chapter, after briefly discussing a few definitional issues regarding genocides, I turn to my early work introducing typologies of geno/​politicides, which I developed based on my original data set. In section 4, I describe and distinguish concepts and practices used in predicting (anticipating) atrocities. In section 5, I turn my attention to the pioneering work of the task force and describe the challenges and questions we encountered in collecting data and developing structural and EW models. I briefly outline a test of a structural model of the antecedents of geno/​politicides. Section 6 then touches upon my follow-​up work of developing an EW system and challenges I encountered.

2.  Defining Genocide In the 1990s, genocide research in general received only scant attention from the greater scholarly community and little to no attention from the policy community. At that point in time, the debate regarding whether the Holocaust should and could be compared to other genocides was ongoing. The concern was that the suffering of Holocaust victims would be minimized if compared to other genocides. Throughout my career, I have argued that the Holocaust was the paradigmatic case because it gave birth to the 1948 Genocide Convention. Scholars ever since, however, have debated the definition of genocide, oftentimes questioning the practical and academic utility and relevance of the very limited scope of the legal definition contained in the Genocide Convention. For an excellent discussion of genocide, I would refer readers to Adam Jones, who identifies 22 different definitions of

Origins of Predicting Genocide and Politicide    99 genocide that have emerged in the scholarly community (Jones, 2011, pp. 16–​20). Though, arguably, labels such as omnicide, poorcide, linguicide, or memoricide may obfuscate the legal definition, it is understandable that scholars try to account for everybody and everything that has been destroyed in genocidal campaigns. The working definition of genocide and politicide I used to identify cases in my data collection and analyses is as follows: genocides and politicides are the promotion, execution, and/​or implied consent of sustained policies by governing elites or their agents—​or in the case of civil war, any of the contending authorities—​that are intended to destroy, in whole or in part, a communal or politicized ethnic group (Harff, 1987). When developing this definition, it was important to persuade the policy community that politicide was an aspect of genocide (Harff, 1987). The acceptance of politicide within academia and policy-​making institutions was largely due to the fact that of the 46 cases I identified as genocide in my database of cases since World War II, many were mixed cases—​that is, geno/​ politicides. Despite the ongoing definitional debates, I am persuaded that agreement among scholars on the essential characteristics of a genocide far outweigh disagreements. I venture to say that during the 1990s, my friends and colleagues (Kuper, 1985; Chalk and Jonassohn, 1990; Fein, 1993; Charny, 1999; and others) and I were persuaded that we conquered the essence of the genocidal phenomenon by identifying and agreeing on its essential characteristics.

3.  In Search of Theory In the quest of developing workable hypotheses as to how geno/​politicides occur, I developed typologies, as was the mode in the 1980s. Genocide scholars were few in numbers in the late 1970s and early 1980s, and the literature was consequently scarce. We came from different disciplines, and we were divided by how we treated the Holocaust. Genocide scholars by and large treated the Holocaust as the archetypal case, whereas Holocaust scholars viewed it as a unique phenomenon, non-​comparable to anything else, and, to some, non-​explicable (Fein, 2002). Today, Holocaust scholars generally accept that genocide scholars do not mean to diminish the gravity of the Holocaust by including it in the larger disciplinary study of genocide. Here I speak for myself, but I consider the Holocaust one of the worst cases of genocide in human history. It will be remembered long past the demise of the perpetrators and surviving victims, as it was, after all, the case that gave impetus to the Genocide Convention. In the empirical realm, explanation relies on comparison; thus, most pioneers in the field of genocide studies did case studies. In my view, the interdisciplinary nature of the field adds to its richness in tackling the complex nature of the genocidal phenomenon. My early colleagues were by and large historians, political scientists, sociologists, and psychologists with a sprinkle of jurists and theologians. Our training seemed different at first, but on second look that was not the case. We all read the classics, such as those by Raphael Lemkin, Max Weber, Georg Simmel, Emile Durkheim, Hannah Arendt, Konrad Lorenz, Stanley Milgram, Raul Hilberg, and Ted Gurr, to mention a few. My international law training added additional material, such as works by Thomas M. Franck, Irving Louis Horowitz, Hans Kelsen, Julius Stone, Ellery C. Stowell, Michael Walzer, and Quincy Wright.

100   Barbara Harff

3.1. Typologies: A useful sorting mechanism Armed with this literature, I turned my sights toward creating typologies of geno/​politicide. For me, typologies are a useful sorting device in the quest to identify similarities and differences in the evolution to genocide. In typical political science fashion, I was looking for structures, treating the state as the central actor in the world. States provide both security and social services for their citizens, and in this role, the state is omnipotent. However, “ecological challenges and the international security dilemma greatly contribute to the erosion [of the state] as the central actor in the world. . . . The state as entrepreneur and provider have sometimes led to elite domination internally or increased military/​economic adventurism abroad” (Harff, 1987, p. 43). My first significant discovery was that among the 46 genocides identified since World War II, all but one or two happened during or in the aftermath of a significant conflict. This discovery led to the coinage of the concept of national upheaval. “National upheaval is an abrupt change in the political community, caused for example, by the formation of a state through violent conflict, when national boundaries are reformed, or after a war is lost” (Harff, 1987, p. 43). Sometimes these traumatic events, and the resultant battered national pride, lead to genocide against those perceived as “foreigners” within. Based on comparisons across cases, I divided the 46 cases into different types of upheavals. First, the rise of the Nazis came in the wake of World War I, and the inability of the new republic to provide for its citizens created despair and animosities against those perceived as anti-​German, i.e., cosmopolitans, leftist, internationalists, and religious and ethnic minorities. The rise of the Nazi party was similar to the rise of the Young Turks, complicit in the Armenian genocide, who came to power in the wake of the disintegration of the Ottoman Empire. These cases were classified as post-​war-​post-​imperial genocides. Second, many of the new states that emerged during the 1950s until well into the 1960s were former colonies and artificial creations. Former colonizers paid little attention to different, often hostile ethnic groups now living in one state. Attempts to unify different tribes, ethnic groups, and religious groups failed miserably in light of emerging, nationalist ideologies. Unfortunately, these new states experienced massive internal unrests including genocide, as was the case, for example, in Southern Sudan, Burundi, Biafra, and East Timor. It was a common argument among political scientists that colonization wreaked havoc on these new states. Colonizers, by and large, were insensitive to local concerns, favored different ethnic groups, designed boundaries that put historically hostile groups onto the same territory, and usually did not prepare local elites for statehood. Furthermore, the exploitation of economic resources, which lasted long past the colonists’ and colonialists’ official departure, created dependencies that led to corruption and created what Jones calls “market dominant minorities,” which often were non-​indigenous minorities. (Jones, 2011, p. 431). All of these cases were grouped under post-​colonial genocides. Post-​coup and post-​revolutionary genocides is the third category. A classic example is the revolution in Cambodia that brought the Khmer Rouge to power in 1975. It was one of the bloodiest regimes known in the 20th century, and the quasi-​Marxist revolution was reminiscent of the Jacobins’ (specifically Maximilian Robespierre’s) reign of terror that followed the French revolution from 1793 to 1794. Another example is the 1971 coup in Uganda. Here

Origins of Predicting Genocide and Politicide    101 Idi Amin overthrew Milton Obote in a bloody event that brought to power a regime that ruled with unprecedented brutality. Amin was responsible for the deaths of over 500,000 people. In both cases, the international community did little or nothing. The Khmer Rouge were eventually defeated by invading Vietnamese forces, saving the lives of many, and Amin’s rule ended with an invasion by Tanzanian forces in 1979. The fourth, and last, category is genocides of conquest. For example, in 1974, the Paraguayan government was blamed for allowing the slaughter and enslavement of the Guayaki Indians. International verbal condemnation helped to some degree to halt the slaughter. In another example, during the brief colonial history of the German Empire, in what is now Namibia, settlers took the land from the local people, especially affecting the Hereros and Namas, pastoral people who needed grazing lands for their large cattle herds. In 1903–​1904, they rose in rebellion. Some 65,000 Hereros lost their lives when German forces drove them into the desert to die. Atrocities against native peoples were typically ignored by other colonizers.

3.2. What can be learned? Wars, coups, revolutions, and internal strife are pervasive phenomena. As we know now, almost all genocides since 1945 happened during, or in the aftermath of, internal wars, revolutions, or regime collapses. Differentiating among types of upheaval is useful because the greater the changes affecting society through new governments, the likelier it is that genocidal policies are implemented to ensure total obedience (Harff, 1987). For example, “a successful revolution with clearly defined ideological goals are much more likely to lead to a total restructuring of society” (Harff, 1987, p. 48) with deadly consequences for supporters of the old regime or “others” perceived as enemies of the new order (see the Khmer Rouge regime in Cambodia or the Nazis in post-​Weimar Germany). In contrast, coups lacking mass participation often only lead to partial replacement of the ruling elite, safeguarding members of the opposition. Though some have thought that in comparison to other conflicts genocides happen less often, that is not the case. Furthermore, genocides are unparalleled in the ferocity and brutality they unleash. Since World War II, close to 20 million noncombatants have lost their lives in geno/​politicides, more than all victims of internal and international wars (Harff, 2013). We need to know why genocides happen and stop them before they can happen again.

4.  Predicting (Anticipating) Genocides and Politicides—​E arly Warning and Risk Assessment Madeleine Albright and William S. Cohen (2008, p. 17) argue that an early warning system: [I]‌s a reliable process for assessing risks and generating early warnings of potential atrocities . . . it means getting critical information to policymakers in time for them to take effective

102   Barbara Harff preventive action. Effective early warning does not guarantee successful prevention, but if warning is absent, slow, inaccurate, or indistinguishable from the “noise” of regular reporting, failure is virtually guaranteed.

EW and risk assessment, which are often used interchangeably, are however two distinct ways of forecasting impending conflicts and atrocity crimes. Risk assessment is based on the analysis of a country’s background or structural conditions such as ethnic divisions, type of political system, and other factors to determine the risk of genocidal violence. Risk assessment can tell us that given the absence or presence of certain conditions countries are at high, medium, or low risk of geno/​politicide. This modeling cannot tell us when a genocide is likely to occur. That is the focus of early warning. The results of my risk assessment were published in the American Political Science Review (APSR) in 2003, and are still widely used in the scholarly and policy community (Harff, 2003). My EW model was published in a number of chapters and articles (see e.g., Harff and Gurr, 1998) but remains underutilized in the scholarly community because its results were classified. In contrast to my risk assessment model, the EW model tracked dynamic factors, such as changes in state capacity or support and movement of rebel groups, and at the same time examined which combinations of factors make the onset of genocide imminent. Albright and Cohen (2008) mention and were familiar with my work done for the State Failure Task Force, but chose to use EW as the concept covering the two types of atrocity forecasting: EW and risk assessment, equating the two concepts despite their distinctions. There are other activities employed in existing practices and policies that could be called “early” warning. One is field monitoring of conflict situations, in which local representatives of international organizations report any event or intelligence they receive that suggest an imminent escalation of conflict. Field monitoring has been done for a long time and is of value because the information generated is often of high quality and immediacy. But, there are serious limitations. First, there are no standardized protocols to increase the consistency of information reported by field representatives. Second, there are typically not explicit models to guide and assess the interpretation of information. Trend monitoring is yet another way to generate and disseminate information regarding (ongoing or developing situations of) atrocity crimes. Here periodic reports are used to assess trends. Often researchers and observers have developed standardized formats to collect information, which consist of monitoring indicators. Though developing and monitoring indicators are of value for systematizing information, its limitations are readily apparent. Conflicts evolve through phases and are not predictable from analyzing trends. The key question is how systematic the collection, dissemination, and assessment on impending humanitarian disasters and societal violence is, and whether this information is received in a timely fashion (Gurr, 2000, p. 250). As valuable as these activities may appear, they are not very useful in generating watch lists and serving as EW for impending atrocities. First and foremost, social science–​based research needs data that are consistent and reliable, as well as interpretation based on explicit models. Albright and Cohen’s (2008) call to generate reliable EW is a call for scientific (systematic)-​based analysis of reliable data. Field monitoring and trend monitoring are more likely to lead to late warnings or are simple descriptions of what is happening on the ground (for an extended discussion see Gurr, 2000).

Origins of Predicting Genocide and Politicide    103

5.  The Origins of Predicting Genocides and Politicides—​The State Failure Task Force in Action Risk assessments are now generated with some regularity by the U.S. intelligence community and individual scholars. The State Failure Task Force was established in 1994 to design and carry out data-​driven studies of the correlates of state failure, defined to include revolutionary and ethnic war, adverse and disruptive regime transitions, and genocides and politicides. Some 20 members were tasked to use scientific analysis to forecast such mass atrocities within states. Why? Typically area specialists “know” or at least recognize that something may happen; however, they are not able to tell us what type of atrocity or conflict may occur. No area experts, for example, were able to forecast the Iranian revolution or the downfall of the Soviet Union. In addition, politicians either ignored warning signals or had no idea that a genocide was unfolding in Bosnia and Rwanda. I have no illusions that many complex reasons were behind the sudden rush to develop risk assessments and early warning capabilities. Rwanda’s genocide was well underway when the United States and others insisted that it was “something less,” requiring no real action by the international community. The same is (was) true for Sudan, which has been plagued by multiple genocides. However, Kosovo prompted NATO intervention and action, and a larger U.S. response, possibly because European problems are closer to home and may have a greater impact on the United States.

5.1. Generating data The State Failure group decided to start data collection as of 1955. The key reasons were readily apparent: data was scarce or did not exist prior to 1955 for many states. And, what data were to be collected for the many new states that emerged after the decolonization period? Where to begin? Many new states experienced an intense period of upheaval, including genocides. Were they rooted in their colonial past or was it a continuation of prior animosities rooted in a distant past?

5.2. Systematizing information It was my task to identify all cases of geno/​politicides since 1955, generate more data, and develop testable hypotheses. My existing data set identifying 46 cases of genocides and politicides after World War II, which I used to develop the typology of genocides, was problematic insofar as, as mentioned earlier, many cases did not fit the definition found in the Genocide Convention. Of the 37 cases used in generating the first risk list for the use of the task force (see also Harff, 2013 for the list), over half were politicides or mixed cases (that is, politicides with communal victims). I argued that it was much more likely that victims have multiple identities, and are targeted and killed for a number of reasons. After all, were

104   Barbara Harff the Chams in Cambodia killed because they were an ethnic minority or because they were Muslims? Or, in the case of the Vietnamese in Cambodia, were they killed because they were of a different ethnicity or because of their perceived loyalties to Vietnam? And in Iraq, were Kurds killed because they are not Arabs, or were they targeted because they wanted independence from an oppressive regime? Though (at first) my arguments were met with skepticism, eventually politicides were considered part and parcel of genocides even though they were not found in the legal definition of the Genocide Convention. I think that scholars and the policy community are now quite aware that the exclusion of political victims had its roots in the ideological divisions created by the emerging superpowers. After all, how would Stalin explain the gulags or the Holodomor in Ukraine? And in the United States, the hysteria regarding the American communists did not allow for inclusion and/​or protection of groups of people identified as political or politicized ethnic groups. Luckily the State Failure Task Force accepted my definition, including politicide, and so did other scholars when using the data set.

5.3. The legal definition vs. an operational definition I decided from the very beginning to narrow the definition of genocide by only including crimes that led to death in accordance with the cide part of the definition. Thus, I did not include crimes such as “measures causing mental harm to members of the group” or imposing “measures intended to prevent birth within the group” or “forcibly transferring children of the group to another group,” even though these are also explicitly mentioned in the Genocide Convention. As I previously argued, “the mental harm clause encompasses a vast array of instances of psychological and cultural harm done to groups that have lost their cohesion and identity but not their lives, as a result of social and economic change” (Harff, 2003, p. 58). I decided to delimit the concept to acts that “collectively endanger the physical life of group members” (Harff, 2003, p. 58). I persuaded the task force members that in genocides, intent matters and therefore we needed to be able to “prove” that acts committed were intentional, designed to destroy a group. However fascinating it would be to get into the mind of the perpetrators, it is neither possible nor necessary. In order to establish genocidal intent, one can start by looking for patterns. For instance, how were the killings conducted? Were they systematic or random? Who were the targets and how many were killed? This is a challenge, as we need to be able to identify the victims’ group identity. What if only some members of the group are killed (all males, for example), yet the group continues to exist? Though body counts do not enter the definition of genocide, ideally, we need to know how many people lost their lives. And, does it matter whether or not the group ceases to function or to exist in whole or part? The Genocide Convention clearly states that “acts committed with intent to destroy in whole or part, a national ethnical, racial or religious group,” constitute a genocide. Those who argue that no genocide took place because groups targeted for destruction are still in existence, or quasi functional, are misguided. I argued time and again that groups who appear to function post-​genocide more often exist in name only, because either their leaders have been killed or members realized that it was too dangerous to belong. Furthermore, I have argued that in order to discover motive as a precursor to intent, one should look at ideologies such as fascism or Soviet-​style Marxism, as intent is discovered

Origins of Predicting Genocide and Politicide    105 through action, which needs planning and willing executioners (Harff, 2003). Perpetrators rarely declare their murderous intentions regarding the unwanted group, but propaganda may tell the story.2 For example, Nazi propaganda branded Jews as “Untermenschen” (subhuman), clearly designated for annihilation. In addition, the handicapped, Gypsies, and homosexuals were singled out as undesirables likely to be killed, whereas political opposition leaders were targeted for incarceration and torture but not necessarily death. Rarely is there public access to formalized clear-​cut murderous plans, but propaganda and government rhetoric delineate the signs of such plans. The Khmer Rouge, for instance, called their targets dandruff, and the Hutu dictatorship called their Tutsi opponents cockroaches. Dehumanization through hate propaganda is widespread in pre-​genocidal situations.

5.4. Modeling genocides: Structural models and EW models Good risk assessment is based on a careful analysis of the antecedents of particular types of conflicts. During my ten years as a member of the task force, we accumulated over 60 years of data, for some 150 countries, on more than 1,000 variables. As previously mentioned, the data typically starts in 1955. We have tested over 50 or so plausible causes. We predicted accurately 74 percent of the geno/​politicides that began between 1955 and the late 1990s (Harff, 2003). Better results are rare in the social sciences. Nevertheless, the levels of analysis problem is an issue that all social scientists face. “The simplest level of analysis distinction is between variables which apply to individuals and those which apply to collectivities” (Gurr, 1972, p. 25). For example, at the psychological level we can ask why individuals are openly hostile toward others. “A structural manifestation of hostility might be the extent to which an organization has roles and procedures for taking damaging action against other organizations” (Gurr, 1972, p. 25). My theoretical objective was to identify general conditions under which governments and rival authorities chose to destroy collectivities in whole or part. My focus was no doubt influenced by my profession; I am a political scientist, and we focus on structural crises and societal pressures. I began with the assumption that humanitarian crises, including genocides and politicides, emerge from political disputes between contending groups when one or both parties use or threaten to use force. Common sources of conflicts are the result of groups contending for power in existing states or trying to secede from existing states. Thus the “state” or “state elites” play key roles in shaping conflict outcomes. In geno/​politicides, most killings “are carried out at the explicit or tacit direction of state authorities or those who claim state authority” (Harff, 2003, p. 58). In civil wars, any of the contending authorities can take actions that endanger the survival of groups (see Bosnia 1992–​1995). As such, non-​ state actors can commit genocide even though non-​state actors are not mentioned in the Genocide Convention. The state, however, is often the key actor in the context of violent conflict.3 Though, as mentioned previously, most genocides occur in the context of violent conflict, not all 2 

For a discussion on the role of ideology and propaganda in atrocity crimes see Chapter 9 by Jonathan Leader Maynard in this volume. 3  For discussion of the role of the state in atrocity crimes see Chapter 18 by Christopher Mullins in this volume.

106   Barbara Harff conflicts lead to genocide. And, therefore, we need to know under which circumstances state authorities chose to eliminate rather than accommodate rival groups. Scholars, including myself, have argued that “the greater the threat, real or perceived posed by challengers, the greater the likelihood that regimes will choose massive repression” (Gurr, 1987, p. 51).

5.4.1. Causal analysis In the following paragraphs, I will focus on causal factors which made the final list that “jointly differentiated with 74% accuracy the 35 serious conflicts since 1955 that led to episodes of genocide and politicide from 91 others that did not have genocidal consequences” (Harff, 2003, p. 70). Accuracy increased to nearly 90 percent when temporal inconsistencies in the data were taken into account. I do not attempt to discuss here the various methodologies used to produce the yearly risk assessments since 2003. For that, please see the 2003 article (Harff, 2003) and the work of other scholars who have retested the model (see for example Ulfelder and Valentino, 2008; Goldsmith et al., 2013; Uzonyi, 2014). Of course, to talk about causes in conflict analysis is misleading: it is better to call them probable antecedents to genocides (Harff and Gurr, 2018, p. 28). Gurr (1972) explains this definitional distinction in human affairs, stating: Philosophers of science abstractly debate whether cause and effect are ever determinable in nature or in human affairs. . . . [I]‌t is true that no statistical technique enables us to say that X causes Y with the same certainty that we can describe how X and Y covary. . . . Cause and effect are time dependent; if X regularly precedes Y, it is likely a cause of it. . . . [A]nd we can infer causal sequences from patterns in correlation and regression coefficients among static measures (Gurr, 1972, p. 161).4

Cause 1: Political Upheaval. Our analysis showed that the higher the magnitude of upheaval, the higher the risks of genocide and politicides (for more detailed discussion and definition of (political) upheaval see Section 3). Cause 2: State Characteristics—​Regime Types. Case studies showed that authoritarian regimes were much more likely to use excessive force to quell opposition. “Failures in states (see magnitude of upheaval) with autocratic regimes were three times more likely to lead to geno/​politicides than failures in democratic regimes” (Harff, 2003, p. 66).5 Cause 3: Exclusionary Ideology. Our findings supported the argument that countries in which “the ruling elite adhered to an exclusionary ideology were two and a half times more likely to have state failures leading to geno/​politicide than those with no such ideology” (Harff, 2003, p. 66). A recurrent question is how human beings can commit the unthinkable; the rape, torture, and murder of fellow human beings. Exclusionary ideologies are often seen as the key to how to turn “normal” human beings into rapists, torturers, and murderers. Of the many psychological studies conducted, Milgram’s studies (1995) and Zimbardo’s prison

4  For

an extended discussion of data error and model specification (see false negatives and false positives), see Harff, 2003, p. 69. 5  For further discussion on the relationship between regime type and atrocity crimes see also Chapter 8 by Maartje Weerdesteijn in this volume.

Origins of Predicting Genocide and Politicide    107 study (2007) stand out. For want of a more sophisticated analysis, I never questioned man’s ability to humiliate, torture, and kill fellow human beings. Every conflict bears witness to the senseless murder of noncombatants. In the United States, the death sentence is imposed on murderers, yet Lt. William Calley was the only murderer convicted for the My Lai massacre that took place in Vietnam in 1968 (where over 200 people were killed). One needs to question why we impose tough measures on local murderers and celebrate killings in times of war, where the killing of noncombatants is often thought of as an inevitable byproduct of conflicts. Throughout history, scholars and theologians justified the use of force by arguing that sometimes it was necessary as long as there was a just cause, and that the men who wage the war must have just intentions, so that something good actually results from the war (see Aquinas and Augustus quoted in Harff (1984)). Whatever the psychological drivers are that turn ordinary people into killing machines, for me the key element was, and is, the predatory behavior of people who are members of a group.6 There is no doubt that there exists a form of herd instinct within groups that activate killing instincts. I believe that without internal support and outside agitation, people may behave differently. Take for example the Nazis’ ability to transform an “ordinary group of older policemen” into murderous savages, which was captured by Christopher Browning (1992). Indoctrination created the ability to make them believe that others (Jewish men, women, and children) were a threat to existential and cultural survival. Marketers of ideology are masters of deceit who can motivate potential perpetrators by reminding them that they have the duty and obligation to act. It is clear that certain belief systems exclude certain groups from the moral universe of obligation (Fein, 1984, p. 5). Exclusion, or the elimination, of a people can be based on real or self-​identified categories such as race, ethnicity, or religion, or imagined categories such as political enemies (often assigned), or any group of people standing in the way of development, expansion, or simply considered unworthy to live (see the killing of people with disabilities in Nazi Germany). The following exclusionary ideologies ushered in periods where killings were justified as a means to realize particular objectives. They include Marxist/​Leninism, fundamentalist Islam, fascism, doctrines of ethnic superiority, or strict secular nationalism. They are practiced today in North Korea, Saudi Arabia, and Pakistan, among other places. The kind of fascism practiced by Germany during the Nazi period was partially copied by the Apartheid regime in South Africa. An extreme form of (secular) nationalism, practiced in the past by Turkey, can lead to genocide as we see now for the second time in Syria. Emerging radical forms of ethno-​nationalism in today’s Hungary, Poland, Italy, Germany, and other European states should be of concern to all. Cause 4: Ethnic and Religious Stratification. Our findings showed that “geno/​politicides are two and a half times more likely in countries where the political elite was based mainly or entirely on an ethnic minority” (Harff, 2003, p. 67). Violence may have the utility of obtaining a desired outcome. In stratified or ethnically, racially, or religiously divided societies, dissatisfaction with policies favoring any particular group may provide the impetus to change the existing order. These arguments are

6  For a detailed discussion of individuals as perpetrators of atrocity crimes and their interactions in groups see Chapter 12 by Alette Smeulers in this volume.

108   Barbara Harff derivatives of Ted Robert Gurr’s theory of relative deprivation (Gurr, 1970). The Genocide Convention identifies national, ethnic, racial, and religious groups as vulnerable groups and possible targets of genocide. Our question was twofold: First, were ethnically or religiously divided societies more prone to internal violence, including ethnic violence, civil wars, and genocide? And, second, what if the ruling elite were based mainly or entirely on one ethnic or religious minority? Syria is a case in point; though Bashar al-​Assad is ethnically part of the majority ethnic group (Arab), he is an Alawite, perceived by most Muslims as a heretical quasi-​Muslim sect. Syria is a multi-​ethnic and multi-​religious country. The largest ethnic group is Arab (approximately 90 percent), Kurds (2 million), Turkmen (0.54–​1.5 million), and Assyrians (0.9–​1.2 million). The largest religious group is Sunni Muslims with 74 percent of a population of about 17 million, followed by Shia Muslims (13 percent), Alawites (2 million), Druze, and Christian Assyrians, Arameans and Chaldeans, Yazidis, a pre-​Islamic religious group (influenced by Zoroastrianism), and Ismailis, a Shia group that is a religious descendant from the Fatimid dynasty in Egypt. Alawites in Syria control all important political offices under the leadership of the Assad family. Cause 5: Prior Geno/​Politicide. We also found that the risk of a new episode of geno/​ politicide is “more than three times greater when state failure occurred in countries that had prior geno/​politicides” (Harff, 2003, p.66). It makes sense to test whether past elite behavior impacts their future behavior, if we assume that past genocidal action resulted in preferable outcomes for the perpetrators, such as an increase in their value capabilities. Repeat offenders at times become habituated to violence (see Gurr, 1970). In our risk list in 2003, 17 of 26 states were repeat offenders. Cause 6: Low Trade Openness. Additionally, we identified that “countries with low trade openness had two and a half times greater odds of having state failures culminating in genocide” (Harff, 2003, p. 67). Here we tried to ascertain whether the level of economic development and international connectedness via trade decreased the susceptibility to commit human right violations, including geno/​politicide. Of all the economic and environmental variables we tested, such as government debt, trade openness, trade with Organization for Economic Cooperation and Development (OECD) countries, percentage of employment in agriculture, irrigated land, access to safe water, and famine, only trade openness proved to be significant.

5.4.2. Significant or not: Testing 65 additional variables Expert opinion and a search of the existing literature provided ample reason to test other variables that may have improved the preliminary model. We indeed tested 65 other variables and divided them into three categories. The first category included political and leadership variables, such as regime duration; party legitimacy; or leader’s years in office. This category also included a basket of quality-​of-​life indicators and some international variables; for example, neighboring countries that were involved in any major armed conflicts. One variable in this category proved to be significant: ethnic discrimination had weak effects in the predicted direction. The second significant variable, trade openness and membership in intercontinental and regional organizations, discussed further later, reduced the impact on the significance of the minority elite indicator. But in the end, both did little to improve the accuracy of the final model.

Origins of Predicting Genocide and Politicide    109 The second category of variables related to international dimensions. Most social scientists believe that international connectedness, defined as trade openness and membership in regional and international organizations, has to have some impact on how states behave both internally and in their neighborhood. We hypothesized that the more international connections, the more likely a country would abstain from committing human-​ rights violations. Furthermore, we opined that low economic development may predispose societies to conflict, especially if states are run by minority elites. It turned out that low economic development (measured by percentage of infant mortality) “is a generic risk factor for civil conflict and regime instability,” (Harff, 2003, p. 69) but does not affect the odds that a geno/​politicide may occur. As mentioned earlier, only trade openness was significant. The third category included demographic and societal variables. We included indicators such as a change in total population; youth bulge; infant mortality; life expectancy; female life expectancy; secondary school enrollment; percentage of population with primary education; illiteracy rate; religious, ethnic, ethno-​linguistic diversity; and more. Here, we were hoping to find answers as to whether the modern state “that make[s]‌upward social mobility possible” is associated with a lower risk of civil war and genocide (Fearon and Laitin, 2003, p. 78). In addition, we tested whether ethnic diversity is associated with a greater risk of civil unrest. Fearon and Laitin (2003, p. 82) found that for countries with “any level of ethnic diversity, as one moves up the income scale, the odds of civil war decrease.” For genocide scholars, these findings are significant, because as argued earlier, most genocides take place during violent political conflict and/​or in the aftermath of regime change. Therefore, increases in economic development combined with a more equitable distribution of resources may help to eliminate atrocity crimes.

6.  Risk Assessments Versus Early Warning Capabilities The six causal factors identified in the previous section allowed us to do the kind of risk assessments yearly generated by the Political Instability Task Force since 2003. Quite a few scholars have replicated and assessed the accuracy of our forecast (see for example Goldsmith et al., 2013), and the model proved to withstand time (see Ulfelder and Valentino, 2008; Uzonyi, 2014). We know now that: Risk Assessment is based on an analysis of a country’s background or structural conditions such as ethnic divisions or type of political system, that may determine risk of geno/​politicide. Risk analysis can tell us, given the absence or presence of such factors, which counties are at high, medium, or low risk of genocides (Harff, 2018, p. 28).

In contrast, Early Warning focuses on dynamic factors such as increases in hate propaganda, increased restrictions on political participation, increased revocations of citizenship, increases in government corruption, and more. The early warning model described briefly later included over 70 accelerators, operationalized as events, triggers, and de-​accelerators.

110   Barbara Harff Theory-​driven systematic risk assessment tells us that a geno/​politicide is in the making, but it does not tell us when. Typically, it takes one to two years for things to change drastically. For policy makers this would buy time that would allow them to search for cost-​effective measures that prevent or de-​escalate developing humanitarian crises. Risk assessments are also useful in the discovery of non-​genocidal atrocities. Mass rapes and political murders are often precursors of worse things to come. However, even the best risk assessments and early warning efforts are useless unless we have the capacity to marry risk assessments and EW with actionable responses. The best/​worst example was Rwanda, where from April to July 1994 over 800,000 individuals were killed. It was a disaster that could have been prevented. It is no secret that the United States had no interest in getting involved, and the UN was incapable of producing action on the ground. A defiant Canadian major, General Romeo Dallaire, and General Henry Kwami Anyidoho, commander of the Ghanaian contingent, ignored commands to withdraw the remnants of the United Nations Assistance Mission in Rwanda (UNAMIR) forces, holding on to 470 peacekeepers and thereby saving thousands of people. Bickering, self-​interest, or total lack of compassion led to this human tragedy. I remember being asked by the U.S. State Department if the Rwandan case was really a genocide when thousands already had been killed. It was the Rwandan tragedy that led in 1994 to the establishment of the State Failure Task Force with an explicit goal: to prevent another Rwanda through early detection.

6.1. The goal of early warning is to indicate when a genocide is likely to occur My efforts to design an EW system date back some 20 years. They are based on building and learning from efforts by the Humanitarian Early Warning System (HEWS) developed by the UN’s Office for the Coordination of Humanitarian Affairs, by the Forum of Early Warning and Early Response (FEWER) founded in 1994 in London, by the International Crisis Group, and by the Organization for Security and Cooperation in Europe (OSCE). At that time, these organizations typically warned of general conflicts. More important, their efforts were neither systematic nor data based, nor did they use explicit theoretical frameworks.7 Essentially, policy makers wanted to know when and whether a genocide was imminent in countries that were identified, utilizing the structural model, at high risk of genocide. Thus, I was given the task to develop an early warning system (Harff, 2016). The early warning model, henceforth described as the accelerator model, is only applicable in high-​risk situations, as determined by utilizing our risk assessment. The EW model consists of accelerators, de-​accelerators, and triggers. Accelerators are variables operationalized as events. I have also suggested weightings for each accelerator. A de-​ accelerator is a single event capable of positively changing the direction of a crisis (usually

7  As far as the OSCE is concerned that has changed as demonstrated by Birger Heldt in a recent chapter in Harff and Gurr (2019).

Origins of Predicting Genocide and Politicide    111 a cooperative event). In contrast to the accelerators, the de-​accelerators are equal in weight. Finally, a trigger is a single event capable of negatively changing the direction of a crisis (any form of conflict). Trigger events are also equal in weight. An event is a report of observable verbal or physical human interaction. More specifically, we were tracking any group within a country, and associated groups in neighboring countries, that were involved in any conflictual activity as described in the model. Furthermore, we coded any actor activity associated with the state (including that of neighboring countries). We coded daily information for fifteen states over a period of two years. I will briefly describe one case: Burma, which was high on our risk list for some time. We tracked the activities of various state and non-​state actors such as the Karen National Union, Democratic Karen Buddhist Organization, Unspecified Karens, Karenni/​ Kayah, Kachin Independent Organization, Kachins Unspecified, All Burma Muslim Union, Rohingya Solidarity Organizations, Rohingya and Arakanese Muslima, Arakanese Buddhists, Shan State Army, Shan Unspecified, Chin National Front, Zomis/​ Chin Unspecified, United Wa State Army, Wa Unspecified, National League for Democracy, National Coalition Government of the Union of Burma, Democratic Party for a New Society, National Council of the Union of Burma, All Burma Student’s Democratic Front, All Burma Student League, Free Burma Coalition, Mizos/​Mizoram in India, Shans in Thailand, Shans, and Karen in China. In addition, we tracked state activities in Laos, China, Bangladesh, Thailand, and India that were considered relevant to the conflict development in Burma. A very brief description of codable events is described in the following. The human coding event descriptions and instructions on 15 cases took up to 42 pages. Codable activities, which we were focusing on, included accelerators such as: arrests, accusations, agreements, armed attacks, attacks, bombings, border violations, casualties, displacement of people, massacres, mobilizations, coups, relocation, militia activities, paramilitary actions/​activities, atrocities, refugees, abductions, kidnappings, rapes, insurgent activities, and killings. De-​accelerators included: sanctions, agreements, cease fires, economic cooperative agreements, government plan to repatriate refugees, lifting of media restrictions, and government seeking mediation and arbitration, etc. Triggers included coups d’états, assassination attempts of political and/​or religious leaders, terrorist attacks that result in significant loss of life, and natural disasters such as floods, droughts, and others. We developed graphs that showed whether violence escalated and whether atrocities were approaching genocides. In addition, we wrote detailed reports on what to expect if no actions were taken. Our efforts were sometimes met with disbelief or criticism, especially by some area specialists, who insisted that they knew better. Long before the current situation, Rohingyas were again identified as potential victims of genocide. Furthermore, our risk list clearly showed Syria as a likely state to commit genocide against Yazidis, Islamists (other than Islamic State of the Iraq and the Levant (ISIL)), and Kurds roughly two years prior to onset.

7.  Conclusion Clearly there is donor fatigue in regard to states that are chronically beset by corruption, crises, and other preventable maladies. But, tragedies like the murders that took place in

112   Barbara Harff Rwanda, and now in Syria and Myanmar, could have been prevented. Late intervention is often ineffective and expensive; thus, early intervention is desirable if we knew which actions work best in complex situations. I tried to believe that early detection may prompt early action. I have previously argued (Harff, 2009, p. 510), and still believe, that early detection may allow for actions that are easy on the budget, and just as useful, if applied at the right time. Mediation, diplomatic warnings, sending emissaries, economic aid, and a wide range of capacity-​building measures may have a chance to halt escalation if initiated before genocidal violence begins (Harff, 2009, p. 510).8

References Albright, M.K., and Cohen, W.S. (2008) Preventing Genocide: A Blueprint for U.S. Policymakers. Washington, D.C.: The United Holocaust Memorial Museum, The American Academy of Diplomacy, and the Endowment of the United States of Peace. Browning, C. (1992) Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland. New York: Perennial. Chalk, F., and Jonassohn K. (1990) The History and Sociology of Genocide: Analyses and Case Studies. New Haven, CT: Yale University Press. Charny, I.W. (ed.) (1999) Encyclopedia of Genocide. Santa Barbara, CA: ABC CLIO. Fearon, J.D., and Laitin, D.D. (2003) “Ethnicity, Insurgency and Civil War.” American Political Science Review 97(1), pp. 91–​106. Fein, H. (1984) “Scenarios of Genocide: Models of Genocide and Critical Responses.” In: Charny, I.W. (ed.) Toward the Understanding and Prevention of Genocide: Proceedings of the International Conference on the Holocaust and Genocide. Boulder, CO: Westview Press, pp. 3–​31. Fein, H. (1993) Genocide: A Sociological Perspective. London and Newbury Park: Sage Publications. Fein, H. (2002) “From Social Action to Social Theory and Back: Paths and Circles.” In: Totten, S., and Jacobs, S.L. (eds.) Pioneers of Genocide Studies. New Brunswick, NJ: Transaction Publishers, pp. 219–​234. Goldsmith, B.E., Butcher, C.R., Semenovich, D., and Sowmya, A. (2013) “Forecasting the Onset of Genocide and Politicide: Annual Out-​of-​Sample Forecasts on a Global Dataset, 1988–​2001.” Journal of Peace Research 50(4), pp. 437–​452. Gurr, T.R. (1970) Why Men Rebel. Princeton, NJ: Princeton University Press. Gurr, T.R. (1972) Politimetrics. Englewood Cliffs, NJ: Prentice Hall. Gurr, T.R. (2000) “Early–​Warning Systems: From Surveillance to Assessment to Action.” In: Cahill, K. M. (ed.) Preventive Diplomacy. New York and London: Routledge, pp. 243–​262. Harff, B. (1984) Genocide and Human Rights: International Legal and Political Issues. Denver: Monograph Series in World Affairs, Graduate School of International Studies, University of Denver. Harff, B. (1987) “The Etiology of Genocides.” In: Wallimann, I., and Dobkowski, M.N. (eds.) Genocide and the Modern Age. New York: Greenwood Press, pp. 41–​59.

8 

For an extended discussion see Jentleson (2000) and Harff and Gurr (2019).

Origins of Predicting Genocide and Politicide    113 Harff, B. (2003) “No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political: Mass Murder Since 1955.” American Political Science Review 97(1), pp. 75–​90. Harff, B. (2009) “How to Use Risk Assessment and Early Warning in the Prevention and De-​ Escalation of Genocide and Other Mass Atrocities.” Global Responsibility to Protect 1(4), pp. 506–​531. Harff, B. (2016) “Detection: The History and Politics of Early Warnings.” In: Lupel, A., and Verdeja, E. (eds.) Responding to Genocide: The History of International Action. Boulder, CO: Lynne Reiner, pp. 85–​110. Harff, B., and Gurr, T. (1988) “Toward Empirical Theory of Genocides and Politicides: Identification and Measurement of Cases Since 1945.” International Studies Quarterly 37(3), pp. 359–​371. Harff, B., and Gurr, T. (1998) “Systematic Early Warning of Humanitarian Emergencies.” Journal of Peace Research 35, pp. 551–​579. Harff, B., and Gurr, T. (eds.) (2019) Preventing Mass Atrocities: Policies and Practices. Oxford and New York: Routledge. Heldt, B. (2019) “Atrocity Crimes as a Disease: A Statistical Approach to Early Warning.” In: Harff, B., and Gurr, T. (eds.) Preventing Mass Atrocities: Policies and Practices. Oxford and New York: Routledge, pp. 40–​59. Jones, A. (2011) Genocide: A Comprehensive Introduction. 2nd ed. London and New York: Routledge. Kuper, L. (1985) The Prevention of Genocide. New Haven, CT: Yale University Press. Milgram, S. (1995) Obedience to Authority: An Experimental View. New York: Harper Perennial. Ulfelder, J., and Valentino, B. (2008) Assessing the Risks of State Sponsored Mass Killing. Washington, D.C.: Political Instability Task Force. Uzonyi, G. (2014) “Domestic Unrest and Genocide and Politicide.” Political Studies 64(2), pp. 315–​334. Zimbardo, P. (2007) The Lucifer Effect: Understanding How Good People Turn Evil. New York: Random House.

CHAPTER 5

Hum an Righ ts a nd Atro ci t i e s Melanie O’Brien 1.  Introduction Atrocity crimes are often also referred to as mass human rights violations. Indeed, atrocity crimes are human rights violations, although analysis of the conduct involved under both labels (atrocity crimes and human rights violations) is rare. Study of conduct carried out during mass atrocities demonstrates that there is an overlap of behavior that can be categorized as atrocity crimes (war crimes, genocide, and crimes against humanity) and that which can be categorized as human rights violations. Atrocity crimes are represented in the legal regime of international humanitarian law (IHL) (which regulates conduct in armed conflict including prohibiting war crimes) and that of international criminal law (such as the statutes of international criminal courts and tribunals). Human rights are represented and regulated in the international human rights law system, which consists of a significant number of human rights treaties, United Nations (UN) treaty bodies (inter alia monitoring implementation of treaty obligations), and other United Nations mechanisms such as the UN High Commissioner for Human Rights. Both human rights law and international criminal law are also enacted into domestic law, albeit in aleatoric ways. With the creation of an international criminal law regime—​embodied in treaty law, customary international law, ad hoc international criminal courts and tribunals, the permanent International Criminal Court, and domestic implementation of substantive criminal laws—​we see international criminal law frequently used to seek accountability for individuals for the commission of mass atrocities. But the system of human rights—​used for state accountability—​is less frequently used for atrocity crimes. One of the reasons for this may be the challenge of accessing the international human rights system, which requires an individual to first exhaust domestic remedies.1 It is also costly for a victim. In addition, human rights are (mostly) about the individual, thereby requiring an individual 1 

The International Criminal Court’s system of complementarity also has an element of “exhaustion of domestic remedies,” in that the preference is for states to take action. However, it is not a requirement

116   Melanie O’Brien to act to progress a complaint through the UN process. In contrast, international criminal courts and tribunals generally examine atrocity situations more broadly, taking independent action that does not require a solitary victim to be the instigator of a complaint.2 In a post-​atrocity community, individuals are often more focused on recovery (including daily living) than on state accountability. The most common use of the human rights system to hold states accountable for atrocity crimes is for deeds such as torture, enforced disappearance, detention, rape, and death.3 Despite this separation in praxis of the two regimes, there is an inherent connection between atrocities and human rights. Human rights treaties have a broad scope, obligating states to uphold rights. The human rights regime is a form of prevention, a specific mechanism of protection during atrocities, and a system of accountability for state crimes. Thus, it is vital to connect atrocities with human rights, before, during, and after atrocities. After introducing international human rights law, this chapter first briefly considers the human rights protection regime as a form of atrocity prevention, before presenting comparative examples of atrocity crimes as human rights violations. It then separately addresses the relationship of each category of atrocity crime with human rights. This separate analysis is essential, as, outside of the international criminal justice system, each of the atrocity crimes has a different legal framework, which results in a distinct relationship with human rights for each category of atrocity crimes. This chapter considers why the human rights law regime is so crucial during times of atrocity and concludes with a discussion on the need for more engagement with the human rights regime in the atrocity context.

2.  International Human Rights Law Human rights are freedoms that are inherent to all persons, which trigger obligations on states to protect those rights. Human rights are based on the “inherent dignity of the human person,”4 and are universal and inalienable—​everyone, everywhere is entitled to human rights. Under the United Nations (UN) Charter, all member states pledge to cooperate with the UN for the purposes of promoting “universal respect for, and observance of, human

for individuals (i.e., victims) to exhaust domestic remedies, so it is less of a barrier to engagement with the international regime than the human rights system. 2  A group of victims can still bring a complaint through the UN human rights system, although generally, the complaint must demonstrate violation(s) of individual rights. 3 For example, José Antonio Coronel et al. v. Colombia (Communication No. 778/​ 1997) U.N. Doc. CCPR/​C/​76/​D/​778/​1997 (October 24, 2002); Joaquín David Herrera Rubio et al. v. Colombia (Communication No. 161/​1983) U.N. Doc. CCPR/​C/​31/​D/​161/​1983 (November 2, 1987) at 192; Hassan v UK (Grand Chamber Judgment) Application no. 29750/​09, (September 16, 2014); Al-​Skeini and Others v UK (Grand Chamber Judgment) Application no. 55721/​07 (July 7, 2011); Al-​Jedda v United Kingdom (Grand Chamber Judgment) Application no. 27021/​08 (July 7, 2011); Aydin v. Turkey (Judgment) 57/​1996/​ 676/​866 (September 25, 1997); The State of the Netherlands v. Hasan Nuhanović (Supreme Court of The Netherlands, Judgment) Case no. 12/​03324 (September 6, 2013); Mothers of Srebrenica vs The State of The Netherlands (Court of Appeal, Judgement) Case nos. 200.158.313/​01 and 200.160.317/​01 (June 27, 2017). 4  Preamble, International Covenant on Civil and Political Rights (adopted December 16, 1966, entered into force March 23, 1976) 999 UNTS 171 (ICCPR).

Human Rights and Atrocities    117 rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”5 The UN was established in 1945, and by 1948 the Universal Declaration of Human Rights (UDHR) was drafted and adopted.6 The UDHR is the founding document of the modern human rights system, enacted one day after the Genocide Convention.7 Despite its status as a declaration and not a convention, initially intended not to be binding (Samnøy, 1999, p. 10), at least many of the rights enshrined in the UDHR are generally perceived to have attained customary law status, thus rendering those rights binding on all states.8 At a minimum, the UDHR is deemed to enshrine fundamental principles of human rights.9 The international human rights law regime is principally governed by the hard law of treaties, with soft law including UN resolutions and treaty body findings and comments. The main human rights treaties are: -​ International Covenant on Civil and Political Rights (ICCPR); -​ International Covenant on Economic, Social and Cultural Rights (ICESCR);10 -​ Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);11 -​ Convention on the Rights of the Child (CROC);12 -​ Convention on the Rights of Persons with Disabilities (CRPD);13 -​ Convention on the Elimination of Racial Discrimination (CERD);14 and -​ Convention against Torture (CAT).15 Within the human rights treaties are myriad human rights, some civil and political (such as freedom from discrimination and freedom of religion), others economic, social, and

5  Charter of the United Nations (adopted June 26, 1945, entered into force October 24, 1945) 1 UNTS XVI (UN Charter), Arts. 55, 56.; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ICJ Reports 1971, 16, p. 45 para. 131. See also Schwelb (1972). 6  Universal Declaration of Human Rights (December 10, 1948) GA Res. 217A (III), UN Doc. A/​810 (UDHR). 7  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention). 8  Or “as an authoritative interpretation of the [UN] Charter’s human rights provisions” (Alston and Goodman, 2013, p. 82). 9  United States Diplomatic and Consular Staff in Tehran (United States v Iran) (Judgment) ICJ 3 [May 24, 1980], 42. 10  International Covenant on Economic, Social, and Cultural Rights (adopted December 16, 1966, entered into force January 3, 1976) 993 UNTS (ICESCR). 11  Convention on the Elimination of All Forms of Discrimination against Women (adopted December 18, 1979, entered into force September 3, 1981) 1249 UNTS 13 (CEDAW). 12  Convention on the Rights of the Child (adopted November 20, 1989, entered into force September 2, 1990) 1577 UNTS 3 (CROC). 13  Convention on the Rights of Persons with Disabilities (December 13, 2006, entered into force May 3, 2008) 2515 UNTS 3 (CRPD). 14 International Convention on the Elimination of All Forms of Racial Discrimination (adopted December 21, 1965, entered into force January 4, 1969) 660 UNTS 195 (CERD). 15  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted December 10, 1984, entered into force June 26, 1987) 1465 UNTS 85 (CAT).

118   Melanie O’Brien cultural (such as the right to education and the right to participate in cultural life). Some treaties have a broad range of rights included, such as the ICCPR and the ICESCR, while others have a narrow prescription of particular rights, or a targeted category of individuals, such as the CAT or CEDAW. There are several components to the UN human rights system: the treaty bodies, the Human Rights Council, the Office of the High Commissioner for Human Rights (OHCHR), and the Special Rapporteurs. The OHCHR is the main UN office tasked with promoting and protecting human rights, speaking out about human rights violations (through the High Commissioner or through reports), monitoring human rights conditions, conducting human rights advocacy, and assisting governments to implement human rights obligations and standards.16 Treaty bodies monitor and assess the implementation of their treaty by states, issuing reports with recommendations for states to adopt. For example, the Committee on the Elimination of Discrimination against Women monitors and assesses state implementation of CEDAW.17 Treaty bodies also hear individual complaints against states about violations of rights contained within that treaty body.18 The Human Rights Council (HRC) is a subsidiary body of the UN General Assembly established in 2006. The HRC has an Advisory Committee that provides expertise and advice on thematic human rights issues. It also has a Complaint Procedure, which is open to individuals, groups, and organizations to raise issues of violations of human rights. This procedure enables the HRC to review human rights situations in any member state. The HRC can also create Special Procedures mandates,19 appointing persons such as special rapporteurs to investigate specific countries or human rights issues, such as Myanmar or the right to food. The main process of the Human Rights Council is the Universal Periodic Review (UPR), which reviews the human rights record of all UN member states. Each year, forty-​two states are reviewed, with every state reviewed in each four-​and-​a-​half-​year-​cycle. For the review, a national report from the state, reports of human rights treaty bodies and other UN entities, and submissions from other bodies such as non-​governmental organizations (NGOs) and national human rights institutions (NHRIs) are considered. The review assesses compliance with human rights under the UN Charter, the UDHR, any human rights treaties to which the state is a party, voluntary pledges and commitments made by the state, and applicable international humanitarian law. After the review, an “outcome report” is issued, summarizing questions, comments, and recommendations from states, and the responses of the reviewed state. Subsequent UPRs follow up on issues from previous reviews, where states have been expected to take action to develop human rights in between

16  OHCHR (n.d.) What we do. Available at: https://​www.ohchr.org/​EN/​AboutUs/​Pages/​ WhatWeDo.aspx (Accessed: September 18, 2019). 17  See the Committee’s website: The Committee on the Elimination of Discrimination Against Women (n.d.) Available at: https://​www.ohchr.org/​en/​hrbodies/​cedaw/​pages/​cedawindex.aspx. (Accessed: 18 September 2019). 18  United Nations Human Rights: Office of the High Commissioner (n.d.) Human Rights Bodies—​ Complaints Procedures. Available at: https://​www.ohchr.org/​EN/​HRBodies/​TBPetitions/​Pages/​ HRTBPetitions.aspx. (Accessed: September 18, 2019). 19  See United Nations Human Rights: Office of the High Commissioner (n.d.) Special Procedures of the Human Rights Council. Available at: https://​www.ohchr.org/​EN/​HRBodies/​SP/​Pages/​ Welcomepage.aspx. (Accessed: September 18, 2019).

Human Rights and Atrocities    119 review periods. In the case of persistent non-​cooperation with the Human Rights Council, the president of the Council takes up the issue.20 The UPR is subject to criticism, particularly due to the state-​centric nature of the process, through which states play a role in the negotiation and rejection of the recommendations included in their own final UPR report (Collister, 2015). In addition, the UPR process is extremely limited in time, resulting in little to no real discussion with states about human rights issues, and recommendations that are not adopted by consensus but rather “remain the recommendations of individual states to their peers” (Collister, 2015, p. 115).

3.  Human Rights as Prevention Atrocity risk factors often include armed conflict; political instability or regime change; a record of serious violations of international human rights and humanitarian law; weak state structures; extremist ideologies and perceived threats posed by particular groups; financial, materiel, and personnel capacity to commit crimes; patterns of discrimination against particular groups; and a lack of mitigating factors (such as a lack of free and independent media); limited empowerment process for protection of protected groups and individuals; a lack of national civil society; limited cooperation with international and regional human rights mechanisms; and a lack of support by neighboring states to protect populations at risk.21 It is of course notable that one of the specific risk factors for atrocity crimes is serious violations of human rights; confirmation that there is a direct link between (violations of) human rights and atrocity crimes. Yet, many of the other risk factors are likely either a cause of or caused by violations of human rights. For example, for two of the most significant risk factors identified in the scholarship (Nyseth Brehm, 2017, Thoms and Ron, 2007), political instability or regime change, may often be connected to lack of political rights such as participation and voting; and discrimination against particular groups is a violation of the right to non-​discrimination. Thus, clearly, a human rights–​based society is a fundamental means of atrocity prevention.22 Human rights are about the protection of human dignity, and a society that 20  UNHRC “Report of the Human Rights Council on its seventh organizational meeting.” A/​HRC/​ OM/​7/​1 (April 4, 2013), UNHRC “Decision adopted by the Human Rights Council at its seventh organizational meeting.” OM/​7/​101 (January 28, 2013). 21 United Nations (2014) Framework of Analysis for Atrocity Crimes. Available at: http://​www. globalr2p.org/​media/​files/​framework-​of-​analysis-​for-​atrocity-​crimes_​en.pdf (Accessed: September 18, 2019). 22  For related discussions on risk factors and prevention, see for example Chapter 4 by Barbara Harff, Chapter 9 by Jonathan Leader Maynard, Chapter 10 by Rachel Jacobs and Scott Straus, Chapter 7 by Kieran Mitton, and Chapter 19 by Alex Bellamy in this handbook. A human rights–​ based society empowers people to know and claim their rights, including by providing institutional mechanisms by which individuals can claim their rights and ensuring there are effective policies, practices, and practical realities for all persons to achieve their human rights. A human rights–​based approach includes the common principles of participation, accountability, non-​discrimination and equality, empowerment, and legality. See, e.g., Australian Human Rights Commission (2013) Human rights based approaches. Available at: https://​www.humanrights.gov.au/​our-​work/​rights-​and-​freedoms/​ human-​rights-​based-​approaches (Accessed: September 18, 2019).

120   Melanie O’Brien prioritizes human dignity—​for all—​is far less likely to descend into a situation of mass atrocity. A rights-​based approach to regulation and community relations promotes a rules-​ based system, with integration, equity, participation, and dignity for all within the relevant jurisdiction. Upholding this type of social, policy, and regulatory outlook and practice results in higher levels of development and higher quality of life, which in turn means that society is more likely to be functional and peaceful. A rights-​based approach also significantly contributes to political stability and ensures a society’s resilience to atrocity crimes.

4.  Atrocity Crimes as Human Rights Violations During periods of mass atrocities, whether in armed conflict or otherwise, the system of law and order that usually regulates human conduct collapses. In a catch-​22 situation, this collapse both causes and is caused by the commission of atrocity crimes—​and thus by the violation of human rights (Keith et al., 2009). An exception to this is when the legal system itself is used to commit crimes and violations, as for example, in the Holocaust, where lawyers and the judiciary created and enforced the discriminatory laws that excluded Jews from German life.23 It is the state’s responsibility to uphold human rights for all individuals within its territory; the collapse of law and order (or the genocidal intent and process) of a state thus severely compromises protection of human rights. The state is often the perpetrator of atrocities and therefore the state’s desire to uphold human rights obviously disappears with the arrival of intent to commit atrocity crimes. If a state is committing war crimes, crimes against humanity, and/​or genocide against its own people, it is a) not complying with obligations to uphold and implement human rights, and b) expressly and knowingly violating such human rights. The state no longer sees itself as the protector of its population generally; thus, the protection of human rights specifically is no longer a priority. For example, if a government seeks to eliminate a particular group of people, the right to life is certainly not a concern, but neither then will be any other rights of those people, from cultural rights and education rights, to voting rights and privacy rights. Atrocity crimes have a knock-​on effect where serious crimes also create a regime and society in which rights seemingly unrelated to the atrocities are violated, such as the right to privacy, the right to education, the right to participate in elections, or freedom of religion. For example, internally displaced persons and refugees lose their privacy after fleeing their homes, having to live wherever they can for safety, often in crowded camps with multiple families in one dwelling and sharing a toilet with hundreds of people. Education becomes a mere pipe dream for those fleeing conflict and persecution, unable to access a school or university or even previously educated people to teach, who may have been targeted and killed by the regime. In times of atrocity, elections become an impossibility—​people are more concerned with their safety than whether or not they will run for parliament (although

23  Of course, this leads to the discussion of “what is law,” and “is illegitimate law really law?” See, e.g., USA v Alstoetter et al. (The Justice Case) (Opinion and Judgment) 3 TWC 1 (1948).

Human Rights and Atrocities    121 more often than not an autocratic regime has eliminated elections anyway). Freedom of religion is at least restricted, depending on circumstances, where access to religious sites (churches, mosques, synagogues, etc.) is impossible, and at worst completely prohibited (where a religious group is targeted for genocide).24 Conduct that amounts to an atrocity crime also amounts to violations of human rights. Some crimes enumerated in treaties and statutes of international criminal courts and tribunals also find a direct parallel in human rights treaties (whether general or specific human rights treaties), while others can be inferred from protected human rights. While it is impossible to conduct a full comparison here, a small number of examples of specific atrocity crimes and their human rights equivalents are presented in this section.25 The examples selected are some of the most prominent and ubiquitous atrocity crimes, and are presented in an order of context, with the first context being those rights that apply to all categories of atrocity crimes, the second those that apply to crimes against humanity, followed by those rights that overlap with war crimes. These examples show that some acts are specific to a category of crimes and some cross all three categories; and that some crimes have explicit human rights equivalents, while others stem from general human rights principles such as human dignity and equality. However, in some way, every atrocity crime is also a violation of human rights. It must also be remembered that human rights are indivisible, interdependent, and interrelated, meaning that even when one human right is referred to here, there will also be others that are relevant, connected, and violated (Macklem, 2015).26 All rights contribute to dignity and freedom; denial of one right usually impedes enjoyment of other rights, while fulfilment of one right is generally dependent on the attainment of other rights. Persecution is a crime against humanity, with direct connection to the overarching “umbrella” human right of non-​discrimination. Non-​discrimination applies to all other rights. It is “a basic and general principle relating to the protection of human rights.”27 Non-​ discrimination and equality are “fundamental components of international human rights law and essential to the exercise and enjoyment of . . . rights.”28 Equality dictates that all persons and groups be treated equally (substantive equality), whereas non-​discrimination prohibits “differential treatment on unreasonable grounds” (formal equality) (Moeckli,

24  An example that encompasses all of these rights violations is the Rohingya of Myanmar, who have fled to Bangladesh, fleeing genocide. They have long had no access to education (a violation which continues in refugee camps), have been excluded from public service and voting for decades, have been unable to practice their (Muslim) religion for many years, and now find themselves in overcrowded refugee camps such as those in Cox’s Bazar in Bangladesh; see, e.g., Green et al. (2018). For another recent example, see Syria; UNHRC “Report of the Independent International Commission of Inquiry on the Syrian Arab Republic” (August 9, 2018) UN Doc. A/​HRC/​39/​65. 25  All international crimes referred to here are taken from arts. 6, 7, and 8 of the Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 26  UNGA Res 32/​120 (December 16, 1977), paras. 1(a)–​(c). “[H]‌uman rights in international law share a common purpose: to mitigate injustices produced by the ways in which international law brings legal order to global politics.” 27  UNHRC “General Comment 18: Non-​discrimination” (37th session, 1989), para. 1. 28  Committee on Economic, Social and Cultural Rights General Comment 20: Non-​discrimination in economic, social and cultural rights (42nd session, 2009), para. 2.

122   Melanie O’Brien 2018). Human rights must be granted and implemented without discrimination, regardless of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Non-​discrimination is specifically enshrined in almost every human rights treaty, and there are multiple treaties specifically created to target specific discrimination.29 State parties to human rights treaties have an obligation not to enact discriminatory law and must not apply laws in a manner that results in discrimination.30 Persecution is an extreme form of discrimination, expressly connected to human rights. The crime against humanity of persecution occurs when the perpetrator severely deprives one or more persons of fundamental rights, “by reason of the identity of a group or collectivity or targeted the group or collectivity as such,” where “such targeting was based on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds.”31 The very goal of this crime is to “criminalize massive violations of human rights, committed on discriminatory grounds.”32 This crime “requires the proof of a materially distinct element of a discriminatory intent in the commission of the act.”33 Provided the persecution is the same level of gravity as other crimes against humanity, persecution can consist of any acts that amount to a violation of human rights, whether political, social, economic, cultural or other,34 although they must be seen in a cumulative effect rather than in isolation.35 The right to life is one of the most fundamental rights; after all, without life, all other rights are irrelevant. The right to life is enshrined in the UDHR and the ICCPR, and its importance is echoed in all atrocity crimes. Genocide proscribes “killing members of the [targeted] group;” crimes against humanity include “murder” and “extermination;” and war crimes include “willful killing” (international armed conflict) and “murder” (non-​ international armed conflict). Freedom from torture is another fundamental right, which has warranted its own treaty, the Convention against Torture (CAT). Torture is also an atrocity crime, specifically enumerated as a war crime and a crime against humanity, and implied in the genocidal crime of “causing serious bodily or mental harm.” Apartheid is a crime against humanity, and correlates with racial discrimination, as represented in the Convention on the Elimination of Racial Discrimination (CERD), which

29  For example, non-​discrimination is in art. 2 of the UDHR, with discrimination in specific contexts prohibited in other articles throughout the UDHR; this is echoed in other treaties such as the ICCPR and the ICESCR; (Skogly, 1999). 30  UNHRC “General Comment 18: Non-​discrimination” (37th session, 1989); see also S.W.M. Broeks v. The Netherlands (Communication No. 172/​1984) UN Doc. CCPR/​C/​OP/​2 (1990). 31  Rome Statute, Elements of Crimes, 2011, art. 7(1)(h). 32  Nilsson, J. (n.d.) Art. 7(1)(h) commentary. Lexsitus. Available at: https://​cilrap-​lexsitus.org/​clicc/​ 7-​1-​h/​7-​1-​h (Accessed: September 18, 2019). 33  Krstić (Appeal Judgement) IT-​98–​33-​A (April 19, 2004), para. 231. 34  The first and most recent iterations of crimes against humanity require a connection to other crimes against humanity: at the Nuremberg International Military Tribunal, persecution had to be committed in association with another crime within the tribunal’s jurisdiction; and at the ICC, under which persecution must be committed “in connection with any . . . crime within the jurisdiction of the Court” (Rome Statute, Art.7(1)(h)) (Pocar, 2008, pp. 357; 363). The ICTY departed from this, not requiring such a connection or association. 35  Kupreškić (Trial Judgement) IT-​95-​16-​T (January 14, 2000), para. 622.

Human Rights and Atrocities    123 expressly mandates state parties to prevent, prohibit, and eradicate apartheid.36 Under the Rome Statute of the ICC, the crime of apartheid is defined as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”37 This definition of apartheid is a useful outcome of the Rome Statute, as neither the CERD nor the Committee on the Elimination of Racial Discrimination’s general recommendation on article 3 of the CERD contains a definition of apartheid.38 The crime against humanity of enforced disappearance did not have an equivalent provision in any general human rights treaty. However, in 2006, the International Convention for the Protection of All Persons from Enforced Disappearance was created.39 This convention provides extensive detail on the prohibition and restitution of enforced disappearance, including superior responsibility, a mode of liability for attributing the conduct of subordinates to their commanders and superiors, which is usually only seen in international criminal law.40 Enforced disappearance is also related to many different human rights, such as the right to family; freedom from torture, cruel, inhuman, and degrading treatment; and victims’ rights. Under IHL, prisoners of war (POWs) are to be treated with dignity, and there are many rules regulating the treatment of POWs.41 It is a war crime to compel a POW to serve in the forces of a hostile power or to willfully deprive a POW of the rights of fair and regular trial. The right to fair trial is enshrined in the UDHR and the ICCPR.42 Treatment of POWs generally is also part of the human right of “[a]‌ll persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person.”43 Attacking cultural property is prohibited under IHL,44 and a violation of this amounts to a war crime. In human rights law, cultural rights are protected in the UDHR, the ICCPR, and, predominantly, the IESCR. They are also protected in various UNESCO instruments such as the 1960 Convention against Discrimination in Education and the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage.45 Interestingly, there is a type of violence that is ubiquitous during periods of armed conflict and atrocities and can be argued to fall within both atrocity crimes and human

36  Art 3. CERD also condemns racial segregation, which is something inherently part of the genocidal process where a group is targeted on the basis of race. 37  Rome Statute, art. 7(2)(h). 38  General recommendation No. 19 on art. 3 of the CERD (47th session, 1995), A/​50/​18. 39  International Convention for the Protection of All Persons from Enforced Disappearance (adopted December 20, 2006. entered into force December 23, 2010) 2716 UNTS 3. 40  Art. 6. 41  Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention). 42  Art. 14. 43  Art. 10, ICCPR. 44  Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted May 14, 1954, entered into force August 7, 1956) 249 UNTS. 45  Convention against Discrimination in Education (adopted December 14, 1960, entered into force May 22, 1962) 429 UNTS 93; and the Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted November 16, 1972, entered into force December 17, 1975)1037 UNTS 151.

124   Melanie O’Brien rights violations—​yet its regulation under these regimes is limited: sexual violence. Prior to the Rome Statute, sexual violence was not adequately prohibited under IHL or international criminal law (O’Brien, 2011). Rape and sexual violence are outlawed under the Rome Statute of the ICC as a war crime, crime against humanity, and, indirectly, a crime of genocide (through “causing serious bodily or mental harm” and “imposing measures intended to prevent births”). Interestingly, though, sexual violence does not have a strong history of proscription, barely existing in IHL46 and only indirectly as genocide.47 Likewise, in human rights, sexual violence is missing from treaties—​even the one convention focused on women, CEDAW, does not cover violence against women generally.48 While sexual violence is a crime recognized under international criminal law but not human rights law, likewise, there are also human rights violations that are not, but should be, recognized in international criminal law. The majority of atrocity crimes can be linked to civil and political rights; however, economic, social, and cultural rights are generally neglected in international crimes prosecutions. Van den Herik (2014) writes of the need for international criminal courts and tribunal prosecutors to take into account violations of economic, social, and cultural rights as contributing elements of atrocities. Such violations include the right to food, water, housing, healthcare, education, and culture, which in turn may amount to conduct such as attacks on education buildings or cultural property, attacks on civilian objects, attacks on medical personnel and equipment, and even killing (van den Herik, 2014). In armed conflict, there are, however, some rights that can be violated in ways that do not amount to crimes; an example of these special circumstances will be discussed in section five.

5.  Human Rights and War Crimes War crimes are violations of international humanitarian law (IHL) (the laws of war or the law of armed conflict). In contrast to the other two categories of atrocity crimes, much has been written about the intersection between human rights law and IHL, possibly because of the extensive system of law for IHL and human rights, an equal of which does not exist for genocide or crimes against humanity (Forsythe, 1990; Levie, 1993; Provost, 2002; Cryer, 2010; Eden and Happold, 2010; Milanović, 2010; Scobbie, 2010; Galand, 2018; Bethlehem, 2013; Happold, 2013; Van Dijk, 2018). While the two systems have often been perceived as separate, Van Dijk (2018) recently argued that “human rights thinking” has significantly influenced the development of IHL. Both regimes are about the protection of people. Human rights cases have certainly been brought before UN human rights bodies and regional human rights bodies such as the European Court of Human Rights (ECtHR) that

46  See, e.g., art. 4, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 609 (Protocol II). 47  Prosecutor v Akayesu (Trial Judgement) ICTR-​96-​4-​T (September 2, 1998). 48  Art. 6 of CEDAW does obligate state parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

Human Rights and Atrocities    125 relate to conduct executed during armed conflict (and therefore subject to IHL). While these cases are brought in the context of armed conflict and thus connected directly to IHL and war crimes, it is likely that the same findings about the continued applicability of human rights during armed conflict would be made for cases brought in the context of otherwise categorized mass atrocity situations. For example, the ECtHR cases of Al-​Skeini and Al-​Jedda relate to the occupation of Iraq.49 The ECtHR examined relevant IHL, and deferred to the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, who stated that “[a]‌rmed conflict and occupation do not discharge the State’s duty to investigate and prosecute human rights abuses.”50 Therefore, even in armed conflict, human rights must be upheld, part of which includes the investigation and prosecution of violations of said rights. Directly connecting human rights and war crimes (and atrocity crimes more generally), this means that the implementation of international criminal law is a form of investigating and prosecuting human rights abuses, and therefore international criminal justice is a direct and specific means of upholding human rights, fulfilling states’ obligations. States have an obligation to exercise due diligence to prevent harm committed by both state and private actors.51 This duty to prevent harm specifically includes legislative means (i.e., criminal law) and provision of effective remedy (for violations).52 For example, the Human Rights Committee specifically obligates states under the ICCPR article 7 (torture) to implement criminal law that penalizes torture and cruel, inhuman, and degrading treatment or punishment.53 One of the barriers to using a human rights system to act against human rights violations in armed conflict is the fact that IHL is lex specialis.54 Lex specialis will take priority over ordinary law. That is, a rule of IHL will apply over and above a rule of human rights. In fact, many human rights can be suspended (derogated from) during emergency, which includes armed conflict. However, derogation is not automatic. Derogations are regulated under treaty law, soft law, and case law, and are only permitted “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” and must be “of an exceptional and temporary nature.”55 Armed conflict does fall within the 49  Al-​Skeini and Others v UK (Grand Chamber judgment) ECHR 55721/​07 (July 7, 2011); Al-​Jedda v United Kingdom (Judgment) Application no. 27021/​08 (July 7, 2011). 50  Report on Extrajudicial, Summary or Arbitrary Executions (March 8, 2006), UN Doc. E/​CN.4/​ 2006/​53, cited in Al-​Skeini, para. 93. 51  Alabama Claims (U.S. v Gr. Brit.), 3 Geneva Arb. 8 (1872). 52  ICCPR, art. 2(3). 53  ICCPR General Comment 20 (Forty-​fourth session, 1992): Article 7: Concerning Prohibition of Torture and Cruel Treatment or Punishment (1992) A/​47/​40 193, para. 13. This specific criminalization obligation exists under other treaties, for example, CRC General Comment 4 (33rd session, 2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child, (2004) A/​59/​41, 102, para. 37, obligating states under CROC Art 34 to criminalize all forms of sexual exploitation and related trafficking; Convention on the Rights of the Child (adopted November 20, 1989, entered into force September 2, 1990) 1577 UNTS 3 (CROC). 54  Lex specialis means “law governing a specific subject matter,” and is a doctrine under which law governing a specific subject matter (here, IHL) overrides a law that only governs general matters (here, any other law, whether domestic or international). See ICRC Casebook (n.d.) Lex specialis. Available at: https://​casebook.icrc.org/​glossary/​lex-​specialis (Accessed: September 18, 2019). 55 ICCPR, art. 4(1); ICESCR art. 4. Human Rights Committee General Comment 29: States of Emergency (August 31, 2001) UN Doc. CCPR/​ C/​ 21/​ Rev.1/​ Add.11, para 2. See also generally, UN

126   Melanie O’Brien parameters of a public emergency under which derogations are permitted, where there is a “threat to the organized life of the community,” and a danger which “concerns the whole population.”56 Restrictions are placed on the implementation of derogations:57 a) Derogations must satisfy the condition of legality and be consistent with obligations under international law (including IHL). b) Derogations must be legitimate, to achieve a legitimate aim responding to pressing social or public need. c) Derogations must only be what is necessary to achieve the legitimate aim (proportionate). States are also obligated to notify persons in their territory of these derogations and to inform other state parties to treaties and the UN Secretary-​General. This oversight conforms to the principles balancing derogations: ensuring fundamental rights are upheld during times of social or political upheaval or tension, but acknowledging that enjoyment of individual rights cannot be unlimited (Hafner-​Burton et al., 2011; Hartman, 1981). However, there are some human rights from which no derogation is permitted: right to life; prohibition of torture or cruel, inhuman, or degrading punishment, or of medical or scientific experimentation without consent; prohibition of slavery, slave-​trade, and servitude; prohibition of imprisonment because of inability to fulfil a contractual obligation; the principle of legality in the field of criminal law; the recognition of everyone as a person before the law; and freedom of thought, conscience, and religion.58 These rights are guaranteed because it is perceived that derogating from these specific rights will never be required to protect “the life of the nation.”59 It is interesting to note that many of these rights also find equivalent provisions in international criminal law, in the prohibitions on: willful killing/​ murder;60 torture or inhuman treatment;61 medical or scientific experiments not justified by medical treatment;62 removing nationals’ rights to access to law;63 enslavement;64 and persecution.65 That said, not all of these crimes exist as war crimes, meaning that there are gaps in the ability of (international) criminal law to take action against such conduct when

Sub-​Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (1984) Annex, E/​CN.4/​1984/​4 (Siracusa Principles). 56 

Siracusa Principles, Principles 39 and 40. art. 4(1); similar provisions are found in other human rights treaties. Human Rights Committee General Comment 29: States of Emergency (August 31, 2001) UN Doc. CCPR/​C/​21/​Rev.1/​ Add.11, paras 4–​5. For more detail on the limitations placed on derogations, see De Schutter (2014, pp. 339–​426). 58  ICCPR, Art. 4(2). 59  HRC GC 29, para. 11. 60  Rome Statute, Arts. 6(a); 7(1)(a); 8(2)(a)(i); and 8(2)(c)(i). 61  Rome Statute, Arts. 8(2)(a)(ii); 8(2)(c)(i); and 8(2)(c)(ii). 62  Rome Statute, Arts. 8(2)(a)(ii); and 8(2)(e)(xi). 63  Rome Statute, Arts. 8(2)(a)(vi); and 8(2)(c)(iv). 64  Rome Statute, Art. 7(1)(c). 65  Rome Statute, Art. 7(1)(h). 57 ICCPR,

Human Rights and Atrocities    127 committed, specifically in the context of armed conflict but outside the context of crimes against humanity (that is, widespread or systematic crimes committed against a civilian population, whether in peace or conflict).66 In other words, isolated violations committed during armed conflict but not committed as part of a widespread or systematic commission of crimes may go unpunished. For example, enslavement is a crime against humanity but not a war crime.67 Thus, it is crucial that human rights law remains applicable, to ensure a regime remains in place to provide protection and an accountability option for violations. Because of this imperative need for human rights to remain applicable, the International Court of Justice (ICJ) has maintained that human rights protections do not “cease in times of war,” except in the case of the previously mentioned specific and regulated derogations.68 The ICJ has held: Generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict. . . . As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.69

While the discussion here has focused on state responsibility through the UN treaty body system, of course the ICJ is another option for state responsibility for violations of both human rights law and IHL. ICJ jurisdiction is enacted solely through states, when one state alleges another state has violated treaty or customary international law obligations. Although it is rare that states are brought to the ICJ for IHL and human rights law violations, it has occurred. For example, in the case of DRC v. Uganda, Uganda was found to be in contravention of both human rights law and IHL, with the Court thus confirming that both legal regimes were applicable during conflict and occupation.70 One interesting difference in the relationship between human rights protection and war crimes prohibition that does not occur with other atrocity crimes is that killing is permissible in armed conflict. It was noted earlier that war crimes include “willful killing” (international armed conflict) and “murder” (non-​international armed conflict). These are very specifically worded provisions, based on the fact that arbitrary deprivation of life is prohibited, and remains prohibited during armed conflict.71 However, IHL allows for people

66  For more detail on the categories of crimes, see Chapter 1 by Jeremy Kuperberg and John Hagan in this volume. For more detail on the chapeau elements of the crimes, a discussion of which is outside the scope of this chapter, see, e.g., Bassiouni, 2003. 67  Rome Statute, Art. 7(1)(c). Conversely, medical or scientific experimentation is only prohibited as a war crime, so if this takes place as a mass atrocity but outside of armed conflict, there is no avenue for criminal accountability; Rome Statute, Arts. 8(2)(a)(ii); and 8(2)(e)(xi). 68  Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (July 8, 1996(I)), p. 240, para. 25 (Threat or Use of Nuclear Weapons Advisory Opinion); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports (July 9, 2004), p. 178, para. 106 (Israeli Wall advisory opinion). 69  Israeli Wall advisory opinion, ibid. 70  Case concerning armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda) (Judgment) ICJ Reports (December 19, 2005), p. 168. 71  Threat or Use of Nuclear Weapon advisory opinion, p. 240, para. 25.

128   Melanie O’Brien to be killed. That is, IHL is designed to reduce human suffering and protect civilians, but it also allows for military necessity—​which may include killing hostile forces. This means that the non-​derogability of the right to life applies strictly during armed conflict to the concept of arbitrary deprivation of life, not deprivation of life generally, exempting wartime killing for military necessity (particularly self-​defense) from human rights regulation. The ICJ has held that the “test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely,” IHL.72 Thus, even though human rights law is the origin of the right to freedom from arbitrary deprivation of life, IHL, not human rights law, is the test for what amounts to arbitrary deprivation of life during armed conflict (Doswald-​Beck, 2006). One of the principle discussions in the applicability of human rights during armed conflict has been whether human rights obligations are applicable extra-​territorially (Coomans and Kamminga, 2004; Gillard, 2004; Messineo, 2009; Miller, 2010; O’Brien, 2010–2011). A state is, of course, obligated to uphold human rights in its own territory, for people located in its territory, but the question has arisen as to whether a state is obligated to uphold human rights extra-​territorially. In the Israeli Wall Advisory Opinion, the ICJ held that “the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”73 The Committee on Economic, Social and Cultural Rights has noted that in “its view that the State party’s obligations under the Covenant [on Economic, Social and Cultural Rights] apply to all territories and populations under its effective control.”74 Thus, it is generally held that human rights do apply extra-​territorially, to persons within the jurisdiction of the state party.75 States are accountable for extra-​territorial actions of persons (including human rights violations) over whom they have effective control, particularly members of its armed forces.76

72 

Threat or Use of Nuclear Weapons advisory opinion, p. 240, para. 25. Israeli Wall advisory opinion, p. 180, para. 111. See also Human Rights Committee, General Comment No. 31 [80] The Nature of the General Legal Obligation Imposed on State Parties to the Covenant (May 26, 2004) UN Doc CCPR/​C/​21/​Rev.1/​Add.13. 74  UN Doc. E/​C.12/​1/​Add.90, paras. 15 and 31. This was upheld by the ICJ in the Israeli Wall case, para. 112; which also affirmed the extraterritorial application of the Convention on the Rights of the Child, para. 113. 75  See: Human Rights Committee: Lopez Burgos v. Uruguay (Communication No. R.12/​52) U.N. Doc. Supp. No. 40 (A/​36/​40) at 176 (July 29, 1981); European Court of Human Rights: Al-​Skeini and Others v UK (Grand Chamber Judgment) Application no. 55721/​07 (July 7, 2011); Al-​Jedda v United Kingdom (Grand Chamber Judgment) Application no. 27021/​08 (July 7, 2011); Behrami and Behrami v France; Saramati v France, Germany and Norway (Decision of the Grand Chamber) Application Nos. 7412/​01 and 78166/​01 (May 2, 2007); Bankovic et ors v Belgium and 16 other contracting states (Admissibility Decision of the Grand Chamber), Application no. 52207/​99 (December 12, 2001); Loizidou v Turkey (Judgment) Application no. 15318/​89 (December 18, 1996); Drozd and Janousek v France and Spain (Judgment) Application no. 12747/​87 (June 26, 1992); Inter-​American Commission on Human Rights: Coard et al. v United States, Case No. 10.951, Report No. 109/​99 (September 29, 1999); Alejandre et al. v Cuba, Report No. 86/​99 (September 29, 1999); Domestic courts: The State of the Netherlands v. Hasan Nuhanović (Judgment Supreme Court of The Netherlands) Case no. 12/​03324 (September 6, 2013); Mothers of Srebrenica vs The State of The Netherlands (Court of Appeal Judgement) Case nos. 200.158.313/​ 01 and 200.160.317/​01 (June 27, 2017). 76  DRC v Uganda, pp. 242–​245, paras. 213–​220. 73 

Human Rights and Atrocities    129

6.  Human Rights and Genocide Despite the existence of publications with the title “Human Rights and Genocide,” there is little scholarship exploring the relationship between human rights and genocide. An exception is the work of genocide scholar Helen Fein, who directly engaged with human rights in her analysis of genocide (with a focus on the Holocaust) (Fein, 1994; Fein, 1997; Fein, 2007). Interestingly, while we often speak of the Holocaust as the catalyst for the modern human rights system, “across weeks of debate around the Universal Declaration [of Human Rights] in the UN General Assembly, the genocide of the Jews went unmentioned, in spite of the frequent invocation of other dimensions of Nazi barbarity to justify specific items for protection, or to describe the consequences of leaving human dignity without defense” (Moyn, 2010, p. 82). Indeed, Raphael Lemkin “understood his campaign [for a genocide convention] to be at odds with the UN’s human rights project; in any case, it was even more marginal and peripheral in the public imagination than the Universal Declaration, passed the day after [the Genocide Convention]” (Moyn, 2010, p. 83). Therefore, Moyn (2010, p. 83), another rare scholar who connects genocide and human rights,77 argues that the modern human rights system was not “forged in a moment of post-​Holocaust wisdom,” and thus that system does not focus on genocide prevention or diverse political agendas (instead focusing on human rights as they apply in Western democratic regimes). Genocide prevention, rather, has evolved separately from the human rights structure (Moyn, 2010, p. 83). Indeed, the Genocide Convention does not in any way fit within the international human rights system. The international human rights system began with the UDHR and continued with many other treaties such as the ICCPR and the ICESCR. Human rights treaties have human rights bodies within the UN that are tasked with overseeing the interpretation and implementation of the treaties. These bodies work with states to ensure that treaty obligations are correctly and comprehensively implemented at a domestic level. In contrast, the Genocide Convention is not a human rights treaty. Rather, it is a crime suppression treaty, akin to other transnational crime suppression treaties, such as those seeking to criminalize and regulate organized crime or trafficking in persons (Boister, 2003; Boister, 2015). Crime suppression treaties obligate states to criminalize particular transnational or international crimes. These are generally straightforward obligations that are easy to implement, through domestic criminal law provisions. In contrast, human rights treaties have a much broader scope, under which states are obligated to uphold specific rights, the implementation of which can involve quite extensive conduct and action by the state. Moyn believes that genocide prevention and consciousness is now integrated into human rights thinking, yet it is rare that genocide is addressed in the human rights process and system—​and certainly not in the early—​and the mid-​stages of the genocide process (Moyn, 2010, p. 220). It is usually only when genocide has reached its apex of mass killing and other high-​level physical violence (e.g., rape, torture) that human rights bodies take up the cause, using their authority to monitor and critique states for committing genocide.

77  Other examples that engage somewhat with human rights in their discussion of genocide are MacKinnon (1994) and Savelsberg (2010).

130   Melanie O’Brien The Rohingya genocide in Myanmar is a striking example. For example, in 2011, in its first Universal Periodic Review (UPR) before the Human Rights Council,78 Myanmar received little commentary on its treatment of the Rohingya—​only six mentions were made of the Rohingya—​despite decades of violence and persecution against them,79 being clearly part of the genocide process.80 Comparatively, in its 2015 UPR, which took place after physical violence against the Rohingya had intensified, there were 45 mentions of the Rohingya. Various states made multiple recommendations specifically with regards to the prevention and cessation of violations of human rights of the Rohingya (including, inter alia, discrimination, human trafficking, and participation and voting in elections).81 Various UN entities have issued statements and reports concerning the violation of human rights and commission of atrocity crimes against the Rohingya, but it is notable that there was a refusal to use the term “genocide” until late 2018.82 What is missing is a recognition that the pattern of human rights violations against the Rohingya clearly demonstrate the genocide process is occurring—​and has been occurring—​since the 1970s. Genocide scholars frame genocide as a process, not an event. Through a comparative study of the timeline, events, and process of the Armenian Genocide, the Holocaust, the Cambodian Genocide, and the Rohingya Genocide, this author situates the genocide process through a pattern of human rights violations.83 That is, before the process necessarily reaches the level of the enumerated acts of genocide as listed in the Genocide Convention

78 Unsurprisingly,

the three recommendations relating to Rohingya “did not enjoy the support of Myanmar”; UNHRC ‘Report of the Working Group on the Universal Periodic Review, Myanmar’ (March 24, 2011) A/​HRC/​17/​9. 79  See. e.g., Smith, (2018) and Green et al., (2018). 80  Genocide scholars frame genocide as a process, not an event. Genocide does not start with killing, but rather is a process that occurs over a substantial period of time with various stages including discrimination and persecution. A number of scholars have explored this process and these stages, such as Rosenberg (2012); Strauss (2001); Shaw (2015). See also Stanton (n.d.) The 8 Stages of Genocide. Genocide Watch. Available at: http://​www.genocidewatch.org/​aboutgenocide/​8stagesofgenocide.html (Accessed: September 18, 2019) and “The Ten Stages of Genocide”, Available at: http://​genocidewatch.net/​ genocide-​2/​8-​stages-​of-​genocide/​ (Accessed: September 18, 2019), and Fein (1993; 1997). 81  UNHRC ‘Report of the Working Group on the Universal Periodic Review, Myanmar’ (December 23, 2015) A/​HRC/​31/​13. As in 2011, all recommendations relating to improvement of Rohingya rights “did not enjoy the support of Myanmar.” 82  E.g., UNHRC Res (April 9, 2018) UN Doc A/​HRC/​Res/​37/​32; UNGA Res (January 23, 2018) UN Doc. A/​Res/​72/​248; UNSC “Report of the Secretary-​General on conflict-​related sexual violence” (March 23, 2018) S/​2018/​250; Statement by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, on his visit to Bangladesh to assess the situation of Rohingya refugees from Myanmar, March 13, 2018. Available at: https://​reliefweb.int/​report/​bangladesh/​statement-​adama-​dieng-​united-​ nations-​special-​adviser-​prevention-​genocide-​his-​visit (Accessed: September 18, 2019); UNHRC “Report of the Special Rapporteur of the Human Rights Council on the situation of human rights in Myanmar” (September 8, 2017) A/​72/​382. 83  This research will be published in a forthcoming monograph titled From Discrimination to Death (Routledge). As it stands, this theory has been applied only to genocide. Thus, while there remains scope to test whether this paradigm could serve as a risk prevention framework for other categories of atrocities, it is unlikely to satisfy that test, because of the different nature of genocide which involves targeting of a specific group with intent to destroy the group. It is this specific intent that requires the precise human rights violations to occur in order to render the killing part of genocide possible.

Human Rights and Atrocities    131 and statutes of the international criminal courts and tribunals, a specific pattern of human rights violations takes place, in a process that evolves from discrimination to death. Resulting from this comparative study, this author has determined that there is an approximate temporal order of the human rights which are violated in the genocide process, as follows:

• Freedom from discrimination • Freedom of expression • Right to education and cultural rights • Employment, fair trial, association, and public service rights • Freedom of religion • Right to family and privacy • Child rights • Freedom of movement; right to liberty and security of person; freedom from slavery • Right to health; right to adequate standard of living • Freedom from torture, and other cruel, inhuman, or degrading treatment or punishment • Right to life • Refugee rights Taking a processual approach, when this particular temporal pattern of human rights violations occurs, we can posit that the situation is at risk of genocide occurring. This paradigm is a means of midstream prevention, where the genocide process has begun, but can be recognized and stopped before it reaches the extreme end of the process—​physical violence. This could be at two points in the process: first, when the violations of freedom of movement/​liberty and security/​slavery occur; or second, before torture and killing begins. These points in the process are far enough along to recognize that the genocide process pattern is taking place. There is a need to use the existing human rights mechanisms to recognize this pattern of rights violations, and to act to prevent further violations and crimes through expressly stating that there is a genocide risk and using the mechanism’s power to take action and push states to take action against the genocidal regime. This would aim to prevent the genocide process from progressing further into physical violence. Entities such as the Office of the High Commissioner for Human Rights and Special Rapporteurs can draw attention specifically to these patterns, engage with states to stop violating rights, and call for action to be taken by bodies such as the Human Rights Council, the UN General Assembly, and the UN Security Council. In addition to these measures, more regular processes, namely, the treaty bodies meetings and the UPR, enable action to be taken in states’ regular reporting hearings. Rather than referring generally to some rights violations, these UN entities can draw attention to these particular rights-​violations patterns, noting the connection to the genocide process, and can work with states to reverse and cease rights violations.84

84  Of course, the response of Myanmar to its UPRs demonstrates that the UPRs may hold little sway in changing a state’s course of action.

132   Melanie O’Brien Thus, although the Genocide Convention is not part of the human rights system, there is a specific way in which human rights bodies and entities can contribute to genocide prevention. By recognizing the rights-​violations patterns that are consistent with the genocide process as a specific genocide risk prediction factor, human rights entities can act, collaborating with states to ensure that the genocide process is halted before physical violence takes over and the targeted group is physically extirpated. Many of the human rights violations that occur early during the genocide process cannot necessarily be prosecuted as one of the enumerated acts of genocide (e.g., violations of freedom of expression, right to education).85 Thus, there must be another option with which to respond, whether for prevention (censure) or accountability. If the human rights violations are explicitly recognized as part of the genocide process, this recognition can provide an avenue for addressing such actions, where the human rights system can be used, either through domestic pathways86 if available, or if not, by individual complaints through the UN human rights bodies, or through state-​based monitoring in the UN human rights bodies including the Human Rights Council or even the General Assembly and the Security Council. This option is currently partially in use, but as the Rohingya example demonstrates, is nowhere near being used to its full potential and force, which would involve measures such as sanctions or even possible military intervention being taken by the whole global community, against Myanmar.87 This temporal progression of human rights violations in the genocide process also shows that genocide is more than just physical extermination. A large part of the genocide process is in fact not related to physical extermination; hence it cannot be that only physical extermination amounts to genocide.88 By considering the sequential progression of human rights violations in the genocide process, we acknowledge that the loss of a group is not experienced only through physical destruction. Scholars have argued that killing a group

85 

From the Genocide Convention and the Rome Statute, the listed crimes of genocide are:



(a) Killing members of the group;



(b) Causing serious bodily or mental harm to members of the group;



(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. 86 

Comprehensive implementation of human rights obligations includes incorporating human rights expressly into law, such as the United Kingdom’s Human Rights Act 1998, which allows individuals to access the legal system for recourse for human rights violations. 87  O’Brien, 2020. 88  Case law on genocide predominantly restricts genocide to only physical and biological destruction. Scholars argue for a broader definition that includes cultural destruction. For case law examples see Prosecutor v Nuon Chea and Khieu Samphan, Case 002/​02 (Trial Judgement) Case No. 002/​19-​09-​2007/​ ECCC/​TC (November 16, 2018) [800]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment) ICJ (February 3, 2015) [136]. For scholarship examples, see O’Brien, 2018; Feierstein, 2014; Rosenberg and Silina, 1999. Some courts have explored alternative aspects of the “destroy” component of genocide; in addition to those already mentioned in subsequent footnote 91, see Prosecutor v Kayishema and Ruzindana (Trial Judgement) ICTR-​95-​1-​T (May 21, 1999) [97], citing Akayesu, (Trial Judgement) [731].

Human Rights and Atrocities    133 is killing “something more than or other than the sum of the individuals who belong to it . . . genocide is the killing or destruction of that ‘something more’ ” (Powell, 2007, p. 528). Feierstein (2014, p. 205) has called genocide “a specific technology of power for destroying and reorganizing social relations,” resulting in what Card (2010, pp. 237–​266) calls “social death”—​distinct from killing in terrorism or war. The International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber has specifically noted that the goal of genocidaires is “to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide”; the appeals chamber identified that it is the group as a cultural concept, a social structure, that genocidaires seek to eliminate.89 If we look only at the end of the genocide process (e.g., killing, rape, slavery/​forced labor, detention), then we are blind to what really makes genocide, genocide: a lengthy process of dehumanization, carried out through a series of human rights violations that result in the “Otherness” of the targeted group. It is this discriminatory and dehumanizing part of the process that makes the physical violence possible; thus, it is inseparable from the physical violence and must be acknowledged as being a component of genocide, even to the point of being included as acts of genocide or at a minimum prosecuted as the crime against humanity of persecution. Yet, this section of the process can only be seen this way if the human rights violations, and not just the conduct that fits within the listed acts of genocide, are vocalized and denounced by the global community. Thus, scrutinizing human rights violations during the genocide process is essential for midstream prevention and to ensure that victims and survivors receive justice (whether that be criminal justice or other forms of transitional justice such as reparations and apologies) for the entirety of their experience, not just for the physical violence.

7.  Human Rights and Crimes against Humanity Crimes against humanity include some of the most serious human rights violations, many of which appear in not only general human rights treaties, but also in specialized rights treaties (apartheid, torture, enforced disappearance, persecution). Therefore, the role of human rights is fundamental as it provides a means for regulating state behavior through obligations not to commit such violations and a mechanism for state accountability through treaty and customary international law (the prohibition on torture is considered customary). The role of human rights in the crimes against humanity context is particularly important because, while there are many international instruments regulating the law of armed

89 

Krstić (Appeal Judgement) IT-​98–​33-​A (April 19, 2004), p. 12, para. 36. See also a German case in which the Federal Constitutional Court held genocide to include “the annihilation of a group as a social unit with its special qualities, uniqueness and its feeling of togetherness, not exclusively their physical-​ biological annihilation”; Jorgić (Bundesverfassungsgericht) 2 BvR 1290/​99 (December 12, 2000), para. 4; and the subsequent European Court of Human Rights ruling Jorgić v Germany (Judgment) No 74613/​01 (July 12, 2007) paras. 104–​105. See also O’Brien and Hoffstaedter, 2020, for a perspective on the loss of identity by Rohingya refugees as part of the genocide process.

134   Melanie O’Brien conflict, and a convention specifically proscribing genocide, there is no international instrument dealing with crimes against humanity. As with war crimes and genocide, crimes against humanity appear in the statutes of international criminal courts and tribunals, but a stand-​alone treaty for crimes against humanity does not exist, leaving a lacuna in which states cannot be held accountable for their commission. There is a project underway with the International Law Commission to draft such a convention, but, as with all treaty drafting and negotiations, it is an ongoing, lengthy process.90 The international criminal justice system has individual accountability covered, but state accountability is missing. This continues to be the case, as the customary international law status of the prohibition of crimes against humanity remains unsettled and therefore is not a guaranteed path for state accountability (Cassese, 2002). Customary international law is binding on all states, and is a means under which states can hold other states accountable, including through UN Security Council measures or the ICJ (Degan, 2005; Crawford and Olleson, 2018; Orakhelashvili, 2019). This creates a different conversation about the relationship between crimes against humanity and human rights, because the intersection of the two areas is generally absent from discourse. Certainly, in dealing with human rights violations that amount to atrocities other than war crimes, the political preference is to refer to such atrocities as crimes against humanity rather than genocide, because the latter triggers state obligations under the Genocide Convention. Indeed, most non–​war crime atrocities are crimes against humanity and not genocide, as they lack the intent to destroy a group in whole or in part.91 Most charges in international criminal courts and tribunals are war crimes and crimes against humanity.92 This renders the lack of treaty for crimes against humanity a strange lacuna, given that crimes against humanity are so commonly charged in international criminal courts and tribunals.

90  World Law Institute (n.d.) Available at: http://​sites.law.wustl.edu/​WashULaw/​crimesagainsthumanity/​ (Accessed: September 18, 2019). 91  There are a limited number of genocides that have been committed in the 20th and 21st centuries, with confirmed genocides including the Armenian Genocide, the Holocaust, Cambodian Genocide, Srebrenica, Rwanda, and the Rohingya Genocide in Myanmar. There are other atrocities where the genocide status is debated, such as Darfur. However, the majority of atrocity situations do not amount to genocide; there have been countless conflicts over the same period of time, which did not amount to genocide, such as in Colombia, Democratic Republic of Congo, Syria, and Ukraine. See, e.g., Savelsberg (2010, pp. 10–​11) for a list of selected categorized atrocities, which shows how few of them were genocides. 92  War crimes and crimes against humanity occur more frequently than genocide, as can be observed at any point in time with regards to ongoing conflicts and atrocities. The exception, of course, is the ICTR, which was specifically focused on the Rwandan Genocide. In contrast, the ICTY focused on the conflict in the former Yugoslavia, within which only Srebrenica (only one part of the mass atrocities committed) was considered to be genocide. The ICC is currently only tasked with two cases of genocide: Darfur and Myanmar, but only in the situation of Darfur is genocide under consideration, due to jurisdictional restrictions in the Myanmar situation. All other situations (19 preliminary examinations and situations under investigation) before the ICC are war crimes and crimes against humanity. See the websites of the various tribunals for all their case details, e.g. the ICC. ICC (n.d.) Available at: https://​www.icc-​cpi.int/​ (Accessed: September 18, 2019).

Human Rights and Atrocities    135

8.  Conclusion There is a clear need for more interaction and cooperation between the human rights and international criminal justice systems. While there are aspects of the international criminal justice process that engage directly with human rights (e.g., fair trial rights), it is far less prevalent for substantive application and analysis of atrocity crimes to be intertwined with application and analysis of human rights. Human rights bodies such as the Human Rights Committee or the European Court of Human Rights sometimes hear cases of human rights violations that took place in armed conflict, and the Dutch courts have heard a series of cases relating to human rights violations in genocide (Srebrenica, Bosnia). However, the human rights system and the ICJ need to be used more frequently for state responsibility for human rights abuses during mass atrocities. The ICJ has dealt with violations of human rights and IHL in the DRC v. Uganda case, but when it heard cases relating to the Genocide Convention, these cases did not also allege violations of human rights treaties.93 The importance of the human rights legal regime is particularly crucial with regards to crimes against humanity. With no crimes against humanity treaty, and debate persisting over the customary international law status of crimes against humanity, human rights obligations (for example, freedom from torture, non-​discrimination, etc.) are the only means of ensuring state accountability for crimes against humanity. In addition, as van den Herik points out, violations of economic, social, and cultural rights as atrocities tend to be ignored by international criminal courts and tribunals, in favor of atrocities that are violations of civil and political rights (for example, freedom from torture or the right to life). Prosecutors need to consider the impact of violations of economic, social, and cultural rights as equally important as violations of civil and political rights. The hierarchy of these two categories of rights has disappeared within human rights scholarship and practice (Macklem, 2015), so it is time that international criminal courts and tribunals acknowledge the equal importance of economic, social, and cultural rights. All rights are indivisible, interdependent, and interrelated, and this is echoed in the way they are violated in the context of atrocity crimes (where, for example, a violation of the right to housing through expulsion of a people from their homes leads to exposure and death). Generally, and significantly, the human rights regime is one that helps to prevent atrocities. It is a holistic regime and system that provides a base of behavior to ensure human dignity. The implementation of rights creates an equitable society that is inclusive, peaceful, considerate, generous, and rules-​based; such a society is far less likely to disintegrate into atrocities. Hence the human rights regime inheres with atrocities: as a form of prevention, a means of protection during times of atrocities, and a system that provides a means of accountability for state crimes.

93  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (proceedings instituted 11 November 2019); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Judgment) ICJ Reports 2015, p. 3; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) ICJ Reports (February 26, 2007), p. 43.

136   Melanie O’Brien If the human rights regime is so immanent in the context of atrocities, and atrocity crimes also amount to rights violations, there is a need for more exploration of this relationship. Issues of prevention, and the intersection between IHL and human rights law have been abundantly covered, but other connections remain under-​explored. Rather than occlude the relationship between atrocities and human rights, we need to bring them closer together, in scholarship and in praxis, to create a symbiotic and reified system of prevention and accountability.

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CHAPTER 6

Armed C onfl i c t a nd Atro ci t i e s Understanding Power Dynamics Jolle Demmers 1.  Introduction As citizens in a world of 24/​7 newsfeeds, we are constantly exposed to images of large-​scale violence against civilian populations. Mostly, these are images of direct acts of physical hurt: the bombing of cities and citizens, the execution of villagers by drug cartels, or insurgency attacks against enemy communities. Portrayals of “indirect” violence abound as well: bodies of refugees who drowned when trying to cross the Mediterranean Sea, or “21st-​century slaves” in the global clothing industry. Two sets of rather straightforward questions pop up each time we witness such cases: Why is this happening? and How is this (still) possible? Whereas the why often refers to motive, the how refers to organization. In this chapter, these questions on how and why large-​scale and systematic violence against civilians happens are adressed by drawing on three sets of analytical frameworks from the field of conflict studies. Over the past decades, this field of study has aimed to unravel the complex dynamics of interaction in order to explain and/​or understand how and why people collectively resort to violence. A substantial part of academic debates on atrocity crimes refers to the realms of law and criminology. By bringing in a conflict studies vocabulary, which largely draws inspiration from anthropology, political science, security studies, and international relations (IR), this chapter adds new definitions and thinking tools to this conversation. Crucially, this chapter understands atrocities as a particular “repertoire” of collective violence (Tilly, 2008), and a sub-​field within conflict studies. This chapter will first situate atrocities and atrocity crimes within debates on the changing nature of contemporary conflict, to then more deeply look into two central, but often ill-​defined, components of conflict: “identity groups” and “violence.” Subsequently, it discusses the intertwined roles of “entrepreneurs,” “alliances,” and “frames” in the making of atrocities.

142   Jolle Demmers

2.  A Changing Conflict Landscape Of particular relevance to the study of atrocity crimes is the changing setting in which they occur. Despite controversies around classifications, there is a consensus among analysts that the post–​World War II conflict landscape has seen a decline in classic interstate wars. Instead, we see a sharp increase in intrastate violent conflicts (termed “non-​international armed conflicts” in international law) (Cramer, 2006; Miall et al., 1999; Pettersson and Wallensteen, 2015). These typically involve violent confrontations between non-​state actors (rebels, guerrillas, insurgents) and states over the governance of populations, territory, and resources. This empirical observation regarding the increased prevalence of intrastate conflicts caused an important shift in the study of war. Traditional theories of international relations and strategic studies proved incapable of grasping the dynamics and complexities of these non-​international armed conflicts. Turning away from the interstate level, analyses began to focus on local actors and local contexts: on identity formation, group dynamics, ethnicity, resource abundance,1 collective grievances, and collective action (Mitchell, 1981; King, 2004; Kaldor, 1999; Brubaker, 2004; Tilly and Tarrow, 2007; Demmers, 2017). A new, but fragmented, field of study emerged, which aimed to produce frames of analysis and methodologies to capture the particular characteristics and dynamics of these “new wars” (Kaldor, 1999). Intrastate conflicts are seen to differ from interstate or conventional war in a number of ways. First, they do not have precise beginnings and endings. They do not start with a declaration of war, and lack “definitive battles, decisive campaigns and formal endings” (Gomes Porto, 2002, p. 5). Second, these conflicts are protracted: they typically last for decades, during which episodes of fierce fighting alternate with times of relative peace. Often the war/​peace boundary is blurry; both in time and across space. While rebel groups may rule a certain territory by night, army forces can be in control during the day. War is fought in certain specific contested areas (borderlands, mining zones, urban districts) without necessarily affecting outlying territories (Richards, 2005). Third, there are differences in modes of warfare. This new type of war is fought by loosely knit groups of “regulars” and “irregulars”: soldiers, rebels and civilians, local warlords, cadres and paramilitaries, and not by two (or more) conventional clear-​cut national armies (Cramer, 2006).2 Fourth, external interference in such local wars typically comes from overseas diaspora, international military interventions, private security firms, military-​to-​military (M2M) training programs, lobby groups, or foreign mercenaries. Often these external actors make up an intricate part of the conflict dynamics. In fact, most local conflicts are heavily internationalized in both their origin (colonialism, the global economy) and conduct (Cramer, 2006; Demmers, 2014; Pettersson and Wallensteen, 2015). Importantly, war economies are not funded by taxation by the state, but sustained by global networks of trade, outside emergency assistance, and the parallel economy, including drug trafficking, oil bunkering, and trade of

1 

For detailed discussion of the relationship of natural resources and atrocity crimes see Chapter 7 by Kieran Mitton in this volume. 2  For discussion of non-​state actors and atrocity crimes see Chapter 16 by Uğur Ümit Üngör in this volume.

Armed Conflict and Atrocities    143 diamonds, timber, or coltan (Duffield, 2007). Fifth, new technologies have allowed for the de-​territorialization of war, involving globally dispersed networks of actors and organizations (or “cells”). Strategic decisions can be made and instantly communicated across the globe. Increasingly, (irregular) armed actors make use of advanced and remote technologies such as drones, satellites, and cyber intelligence (Demmers and Gould, 2018). Finally, and importantly, identity groups, and particularly organizations claiming to fight in the name of identity groups (ethnic, religious, cultural, or other) are at the core of contemporary violent conflicts. These attributes, and in particular the key role of the identity group, place the civilian population at the heart of violent conflict in the world today, as both a target and constituency, “enemy other,” and “loyal insider.” As will be elaborated on later, the drawing and maintaining of social identity boundaries between civilian populations is a central aspect of the mobilization of support for armed conflict. To gain insight into the power dynamics of atrocities, one needs to examine how and why atrocities become functional to potential entrepreneurs of violence, as well as understand the formal and informal alliances that help to execute and sustain the violence, and the frames through which violence becomes socially meaningful and justified. These three components (entrepreneurs of violence, alliances, and frames) underlie the analytical frameworks of this chapter. Before we turn to these particular frameworks, however, we first have to more clearly define and problematize two central concepts that are often taken for granted when we talk about atrocities as a subset of violent conflict: “identity groups” and “violence.” Therefore, in order to outline our analytical frameworks, we begin by unpacking the key concepts that form their component parts.

3.  Atrocities and Identity Groups: Beyond Essentialisms The notion of the “identity group” figures prominently in definitions of atrocity crimes. This is most clearly articulated in the case of genocide. To constitute genocide, Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide3 states that there must be a proven intent on the part of the perpetrators to destroy, in whole or in part, a national, ethnic, racial, or religious group. Victims of this crime are deliberately—​and not randomly—​targeted because of their membership in one of the four protected groups. In the case of crimes against humanity, the Rome Statute of the International Criminal Court, Article 7(1),4 refers to acts of violence that are part of a widespread or systematic attack directed against “any civilian population,” and, more specifically (under 7(1)(h)), “any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds.” Although not defined as an independent crime under international law, 3  Convention

on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention). 4  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute).

144   Jolle Demmers definitions of ethnic cleansing such as that of the United Nations Commission of Experts Pursuant to Security Council Resolution 780 (1992)5 set up in the context of the wars in former Yugoslavia, also refer to identity groups. Ethnic cleansing is defined as “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-​inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” The Commission of Experts added that these practices can “. . . constitute crimes against humanity and be assimilated to specific war crimes. Furthermore, such acts could also fall within the meaning of the Genocide Convention.”6 So, groups matter. It is not hard to see the salience of the identity group in both the study of atrocities, and in the legal definitions of atrocity crimes. The group concept should, however, be handled with caution for at least two reasons. First, we need to move beyond essentialist notions of the group as a self-​evident, permanent, and unchangeable entity. The average media report from Yemen, Sri Lanka, Darfur, Myanmar, or Iraq, speaks of ethnic and/​or religious groups as if these are categories of people who wage war against the other based on easily identifiable differences. Groups in conflict are portrayed as sharing a unitary identity and fighting over this unitary identity. People seem to be willing and able to kill and die in the name of the group. Indeed, the notion of the social identity group is crucial to the analysis of large-​scale violence and conflict. However, as the wealth of material on ethnographies of violent conflict has evidenced, levels of identification and attachment to the group of parties in conflict are not constant; they vary, from very loose and socially almost insignificant ascriptions, to high and intense forms of interaction and organization (Handelman, 1977; Drakulic, 1993; Gourevitch, 1998). On the ground, ethnic conflict is a messy and confusing affair. As the many reports of “mis-​categorization” during atrocities in Sri Lanka, Rwanda, and Burundi show, perpetrators often cannot tell people apart and end up killing the “wrong” civilians (Horowitz, 2001). Authors such as Rogers Brubaker (2004, 2015) and Andreas Wimmer (2008) argue that we need to problematize—​rather than presume—​the social group or category, and study the political, social, and psychological processes involved in the making of, for instance, an “ethnic community.” Here they draw on the foundational work of anthropologist Fredrik Barth (1969) and his findings on how ethnic groups are not innate and unchangeable, but rather the product of social processes of boundary drawing and maintaining. This is significant, certainly to the study of atrocities, for often the hardening of identity boundaries takes place during the course of a conflict. As we will discuss later, high levels of “groupness” are often the result and not the cause of violent conflict. It is along this line of argumentation that Fearon and Laitin (2000, p. 848) defined social categories as: Sets of people given a label (or labels) and distinguished by two main features: a) rules of membership that decide who is and is not a member of the category; and b) content, that is, sets of characteristics (such as beliefs, desires, moral commitments, and physical attributes) thought to be typical of members of the category, or behaviours expected or obliged of members in certain situations.

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UNSC Res 780 (October 6, 1992) UN Doc S/​RES/​780. Report of the Commission of Experts Established Pursuant to United Nations Security Council Resolution 780 (1992), U.N. SCOR, U.N. Doc. S/​1994/​674 (May 27, 1994), Annex, at 3, 33. 6 Final

Armed Conflict and Atrocities    145 A second way to move beyond essentialist understandings of identity groups in conflict is to make a distinction between groups and organizations. Case-​evidence demonstrates that not groups, but various kinds of organizations are the protagonists of violent conflict. Organizations here are broadly understood as bounded social entities that have a particular purpose, such as, for example, state institutions, paramilitary organizations, insurgency movements, gangs, or militias, which cannot be equated with identity groups. The relationship between organizations in conflict and the groups they claim to represent is often deeply ambiguous. For instance, the fundamental reason the Palestine Liberation Organization (PLO) was able to serve as an icon of Palestine identity was that it presented itself as representative of all the diverse “Palestinian” constituencies which had been disinherited by the creation of the Israeli state. Palestinians were able to recognize themselves as addressed by the oppositional rhetoric of the PLO insofar as that rhetoric did not specify any particular identity to its addressees other than the recognition of themselves as somehow stripped of their rights by the antagonism of the “Zionist entity” (Bowman, 2007). In a very similar way, the Liberation Tigers of Tamil Eelam (LTTE), after eliminating rival organizations, managed to present itself as the sole representative of all of the diverse Tamils deprived by the Sinhalese government of Sri Lanka. Another example is how ISIS is aiming to portray itself as the savior of all Sunni Muslims who felt unprotected by the Iraqi state and its Shia constituency. In each of these cases, the group is defined through oppositional representations of “what it is not,” and what threatens it. By not taking the group for granted as innate and unchangeable but as the outcome of social, historical, and political processes of boundary drawing and representation, we can now ask a set of follow-​up questions: Who defines who is, and who is not, part of a group? In whose interests are the “boundary rules” of a group created? How are boundaries materialized, institutionalized, and policed? And why do social boundaries become hard and unsurpassable in certain historical or political settings (Wimmer, 2008)? These questions are not new. Brubaker and Cooper (2000), Fearon and Laitin (2000), and Brubaker (2004) called for taking what has become known as the constructivist approach to identity a step further by arguing that after we have established that social identities are constructed, we have to specify how they are constructed. “We should seek to explain the processes and mechanisms through which what has been called the ‘political fiction of the nation’—​or of the ‘ethnic group’, ‘race’, or other putative ‘identity’—​can crystallize, at certain moments, as a powerful, compelling reality” (Brubaker and Cooper, 2000, p. 5). As it turns out, violence plays a crucial role in the transformation of group attachments. It is this second concept that we now explore.

4.  Violence Although apparently self-​evident, the question of “what constitutes violence?” has no univocal answer. Scholars have identified a number of rules and thresholds for deciding what (not) to include in their analysis of violence. Let us first see how violence figures in definitions of atrocities and atrocity crimes, and then relate these conceptualizations to debates in conflict studies. For violence to be considered an atrocity crime, the acts associated with it

146   Jolle Demmers must “affect the core dignity of human beings, in particular the persons that should be most protected by States, both in times of peace and in times of war.”7 In addition, the violent act must be exercised intentionally, not randomly or accidentally. Violence, in the sense of atrocity crimes, is described in various international treaties, statutes of international criminal courts and tribunals, or policy documents as “willful,” “intentional,” “deliberately targeting” (particular) civilians, or part of a “purposeful policy.” Scale also matters. Crimes against humanity, for instance, must involve either large-​scale violence in relation to the number of victims, or its extension over a broad geographical area (widespread), or be part of a wider policy or plan (systematic).8 These definitions of violence as intentional and planned acts of harm to persons, populations, or objects resonate with classifications of “manifest violence” as used in the field of conflict studies. We will turn to these in a moment. But for the sake of argument, let us first discuss a wider perspective, which highlights the political nature of what is taken to be violence, and what is not. Here we see how certain authors critique the understanding of “violence as a manifest act” as too narrow. Scheper-​ Hughes and Bourgois (2004, p. 1), for instance, argue that “[v]‌iolence also includes assaults on the personhood, dignity, sense of worth or value of the victim. The social and cultural dimensions of violence are what gives violence its power and meaning.” They here draw on ideas of violence as structural and symbolic, introduced by authors such as Johan Galtung and Pierre Bourdieu, which extend beyond manifest violence classifications.

4.1. Structural violence Although acknowledging the importance of the study of manifest violence, structural-​ based approaches to violent conflict argue for a much broader understanding of violence. Manifest violence, like the atrocity crimes just reviewed, is just the visible component of the phenomenon that does not address the root causes to the acts. Underlying these acts of physical hurt are other, structural forms of violence. This is the violence done to people in much more diffuse and indirect ways, such as the subtle forms of coercion that sustain relations of exploitation and repression. For Galtung (1996), violence is built into unequal, unjust, and unrepresentative social structures (imperialism, capitalism, caste society, patriarchy, racism, colonialism) and should hence be defined as a situation in which actual realizations of human beings are below their potential realizations. Galtung (1996, p. 197) defines violence as: “avoidable insults to basic human needs, and more generally life, lowering the real levels of needs satisfaction below what is potentially possible.” The difference between actual and potential needs satisfaction can be defined by the actors themselves or by others (e.g., researchers), but it can only be seen as indicative of violence if the perceived difference is avoidable. Thus, if a person dies from tuberculosis in the

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  United Nations (2014) Framework of Analysis for Atrocity Crimes: a tool for prevention. New York: United Nations Office on Prevention and the Responsibility to Protect (United Nations 2014). 8   Rome Statute, Art 7; Global Centre for the Responsibility to Protect (2018) Background Briefing: Defining the Four Mass Atrocity Crimes. Available at: https://​www.globalr2p.org/​publications/​defining-​ the-​four-​mass-​atrocity-​crimes/​ (Accessed: May 5, 2019), p. 2, my emphasis.

Armed Conflict and Atrocities    147 eighteenth century, it would be hard to conceive of this as violence, since it might have been quite unavoidable, but if she dies from it today, despite all the medical recourses available, then this, according to Galtung, would qualify as structural violence. People are caught up in structures of exploitation and repression that are harmful and damaging to them, physically hurtful, and violent. With this understanding, the terrain of conflict research is extended substantially, including the analysis of the processes and the mechanisms that prevent people from realizing their potential; that is, the silent violence of poverty, low education, poor health, and, in general, low life expectancy inherent in the way societies are organized. Clearly, by drawing this new definitional boundary, Galtung aims to politicize circumstances that are often taken for granted as inevitable. By labelling poverty and underdevelopment as violence, he is casting blame and responsibility, pointing at the underlying institutional arrangements supporting and legitimizing this violence. He draws our attention to violence in the normality of things, for we are so obsessed and distracted by the spectacular forms of violence (the killing, maiming, war rape), that we fail to address the much less visible, yet still massively destructive force of structural violence that lies underneath (people dying from lack of access to health care, malnutrition, modern slavery, or lack of adequate shelter). In line with this, Rajan Menon (2017, p. 37) argues against the “militarized morality” underlying the doctrine of humanitarian intervention: The clamour for humanitarian intervention presumably reflects a belief in the sanctity of human life, but deaths attributable to poverty, which far exceeds deaths resulting from violence within countries, fail to generate comparable passion and outrage. With some notable exceptions, humanitarianism in wealthy countries has been found wanting when it comes to providing safe haven to refugees fleeing violence, or even adequately funding their basic care. The World Food Program, overburdened by the needs of Syrian refugees, has had to plead for money.

Such perspectives profoundly upset conventional dichotomies of war versus peace. For what we hitherto recognized as a state of peace (the absence of protracted manifest violence) may actually be a state of war (of antagonisms and great suffering). Through Galtung’s analytical lens, peace may very well be sustained by highly destructive forms of structural violence. Related to Galtung’s structural violence, Pierre Bourdieu (1990) speaks of “symbolic violence” as a form of social and cultural domination that is often taken for granted and experienced as “natural,” even by its victims. Symbolic violence, with gender domination as the prime example, “accomplishes itself through an act of cognition and of misrecognition that lies beyond—​or beneath—​the controls of consciousness and will” (Bourdieu, 1990; Bourdieu and Wacquant, 2004, p. 273). The work of Joanne Bourke (2007) on the history of rape, for instance, shows how in most countries rape within marriage (marital rape) was only legally criminalized by the late twentieth century. In line with this, Michael Dillon (1998, p. 563) argues that “what is taken to be violent differs from time to time and from place to place.” Political regimes specify what violence is legitimate and what is not, suggesting that relations of power politicize certain forms of violence and depoliticize others. This critique is pertinent to debates on the geopolitics of humanitarian interventions where major powers have acted selectively, mobilizing when geostrategic interests are at stake, providing weapons to murderous regimes when politically expedient, or overlooking atrocity crimes in some cases, while emphasizing others.

148   Jolle Demmers Legal definitions of atrocities do make some references to structural forms of violence. Crimes against humanity, for instance, also include “inhumane acts . . . intentionally causing great suffering, or serious injury to body or to mental or physical health.”9 Also, the idea that an atrocity crime is an act of violence that affects the “core dignity of human beings,”10 relates to forms of structural violence such as chronic poverty and economic exploitation. The strength of an analytical attentiveness to how violence can be structural, that is, inherent to the way our societies are organized, is that it opens up debate on the politics of care: on who is considered “worthy” of protection and humanitarian aid, and who is not. The problem, however, with structural violence is the question of intentionality, and how to empirically substantiate lines of responsibility, and more importantly, liability. It is for this reason that violence is mostly defined in the restricted sense, as physical acts of hurt. It is this type of violence that we will further discuss here.

4.2. Violence as performance Violence, in the restricted sense, is a physical act. It is about visible and intentional harm to other persons or objects. Anthropologist David Riches (1986, p. 8) defines violence as “an act of physical hurt deemed legitimate by the performer and illegitimate by (some) witnesses.” Apart from the physical element, this much-​quoted definition highlights the contested legitimacy of the act. Riches also highlights the “performativity” of violence. Violence requires an audience. It is “acted out” to send a message to both victims and bystanders. In this sense, violence is an act of communication: it aims to send a message to an audience. It is at this point where violence can be distinguished from aggression. Whereas aggression derives from the “motivation to harm the other as an end in itself ” (Brewer, 2001, p. 26), violence is also always about the staging of power and legitimacy. “Violence without an audience will still leave people dead, but is socially meaningless” (Schröder and Schmidt, 2001, p. 6). At times, this audience is widely defined, such as exemplified by the attack on the Twin Towers in 2001, which was designed to reverberate throughout publics worldwide. Other acts of violence are more narrowly “performed,” in the way they include a warning to a specific rival organization (e.g., in drug cartel wars) or a group (e.g., in the case of ethnic cleansing). Perpetrators may actively seek a specific audience, as happened in the Bijeljina massacre in April 1992, at the time of the Bosnian War. Serb paramilitary groups invited a photographer to take pictures of the execution of civilians, sending out a clear warning to both the Muslim population and “disloyal Serbs.”11 Although perhaps meant to serve a purpose locally, images of violence are risky, as well: they travel and may end up in global media outlets, and so become incriminating evidence. The Serb paramilitaries soon learned to keep journalists out. As is generally the case with war propaganda, perpetrators aim to control war footage, keeping the press and international organizations at bay, and only

9

  Rome Statute, Art 7(1)(k).   United Nations 2014, p. 1. 11   See the documentary The Death of Yugoslavia, Norma Percy, BBC, 1995.

10

Armed Conflict and Atrocities    149 selectively portraying certain episodes of war and not others. In September 2008, the Sri Lanka government, for instance, pressured the United Nations and other international organizations to pull out their staff from the Sri Lankan war zone, warning it could no longer guarantee their safety. It also successfully prevented independent witnesses such as diplomats, reporters, and representatives of non-​governmental organizations (NGOs) from reaching the combat zones during the last months of the war, during which more than 30,000 civilians were killed.12 The Sri Lanka case is a clear example of how violent acts can be effectively hidden from certain audiences—​and how, if atrocities are not made visible, publicized, or reported on, they can be easily forgotten; that is, by those not at the receiving end of the violence. These insights on the making of groups and the communicative quality of violence have informed scholars in furthering the analysis of large-​scale violence against civilian populations in three—​ interrelated—​ directions, respectively emphasizing the role of entrepreneurs of violence, alliances, and frames. Each of these perspectives highlights the connection between violence and group-​making. Together, they show how large-​scale violence becomes likely if the drawing of strict boundaries between groups is both politically functional as well as socially meaningful. In answering the key questions of this chapter on how and why atrocities happen, we therefore need to examine the connection between social boundary drawing and violence, from the perspectives of entrepreneurs of violence, the alliances that help execute and sustain the violence, and the frames through which violence is legitimated, and deemed necessary or inevitable.

5.  Entrepreneurs of Violence Entrepreneurs of violence are often individuals who fear the loss of authority (as a form of institutionalized power), or those who want to climb up and acquire authority in times of uncertainty and change. They are also individuals who have no, or little, restraint in orchestrating or exercising violence as a political strategy, often invoked by a strong sense of righteousness, ideology, or will to power. The strand of research focusing on the key role of entrepreneurs of violence emphasizes how violence does not result from irrational and spontaneous eruptions of mass anger or frustration, but rather is deliberately orchestrated and planned by individuals and organizations to increase group cohesion and build a loyal support base in contexts of structural instability. Although this strand of analysis is quite heterogeneous, scholars generally place emphasis on how violence is strategically instigated to create or affirm boundaries between groups of people. As Fearon and Laitin (2000, p. 853) explain: “Elites foment ethnic violence to build support; this process has the effect of constructing more antagonistic identities, which favours more violence.” Evidence supporting this approach, which has proliferated since the 1990s, can be found

12   United Nations (2012) Report of the Secretary-​General’s Internal Review Panel on United Nations Action in Sri Lanka, November 2012.

150   Jolle Demmers in a diversity of case studies on violence in ethnic (or sectarian) conflict, ranging from Iraq (Al-​Qarawee, 2014), Rwanda (e.g., Gourevitch, 1998; Prunier, 2008), Central Africa (Lemarchand, 2009), Sudan (Deng, 1995; Mamdani, 2009), India (Brass, 1997), the former Yugoslavia (Woodward, 1995; Mueller, 2001), or Sri Lanka (Tambiah, 1996). These studies all demonstrate that violence, and fear of violence, is the key to group-​making, with violence being promoted by those who seek to benefit from conflict. As soon as people are targeted because of their putative identity, they start to act and feel collectively. In war, it becomes very hard to distance oneself from this process of social closure. As described by Gourevitch (1998, p. 95) for the case of Rwanda, “genocide, after all, is an exercise in community building.” What is highlighted in this sub-​field of study is how leaders who fear losing power, or new leaders trying to create their own constituency, may try to increase popularity or instigate a rise to power by provoking violent conflict. A classic example is that of leaderships who, when confronted with systemic transformations beyond their control—​ such as market liberalization or economic recession—​try to divert political debate away from the root of the problem toward other issues, defined in terms of culture, caste, or race, that appeal to the public in non-​economic terms. Certain political factions opt to mobilize their own in-​group members and scapegoat and name-​call others. By actively provoking and creating violent incidents (instigated by militias, or private thugs), leaderships construct an image of an overwhelming threat to the group from the outside and of themselves as saviors of, for instance, the ethnic nation or religious community. As Gagnon (1997, p. 138) points out, such an image of an overwhelming threat to the “collective” is particularly helpful in silencing dissent, especially if dissenters can be portrayed as selfish and uninterested in the well-​being of the group, and can therefore be branded as traitors. The strategic orchestration of violent incidents with the aim to divide identity groups has long been part of the repertoire of “divide and rule” deployed by colonial powers. More recently, U.S. special operations in Iraq have covertly calibrated violence for the purpose of what they call fomenting “enemy-​on-​enemy deadly encounters” (Ahmed, 2014; Henriksen, 2005). In addition, in order to be effective, violence needs to be screened and disseminated. Studies on violent entrepreneurism hence emphasize the control or ownership of mass media, especially television, the internet, and social media, as key elements. Social psychological mechanisms of social closure induced by propaganda and fear-​mongering are seen to explain people’s tendency to follow entrepreneurs of violence. Evidently, the role of direct coercion, and its material and spatial dimensions (gates, fences, checkpoints, identity cards) is essential, too. Underlying the analysis of violent entrepreneurism is the assumption that largely people consent to the orders imposed on them by leaderships, including categories of belonging. The picture that emerges is that of masses who passively receive and internalize dominant discourses and orders, with little room for autonomous agency. Methodologically, this field of research traces the command structures of violent incidents that functioned as a catalyst for escalatory dynamics of violence, aiming to detect the role of specialists and vertical networks. Violence is understood as leader-​led and functional: as a political strategy to create, increase, or maintain political support. In this sense, large-​scale violence against civilians is strategically exercised to harden particular social (religious, ethnic, national, sectarian) boundaries and as a means to acquire power.

Armed Conflict and Atrocities    151

6.  The Role of Alliances: Complexifying the Logic of Violence The notion of the violent entrepreneur as a key player in large-​scale violence has been subject to critiques from scholars who argue for a more relational understanding of power. They argue to look beyond power as coercion, or as a quality that certain actors hold and can wield over others. Instead, power is relational; it is the outcome of constant negotiations (Foucault [1976] 1997). To these critics, the focus on the entrepreneur as orchestrating violence (including atrocities) is considered too narrow and top-​down. Agency is only placed at the level of (often ill-​defined) predatory leaderships. They are the ones who, through careful calculation, orchestration, and intimidation, can lead societies into large-​scale violence. In this picture, civilian populations are generally seen as followers, as passively subjected to the propaganda and manipulations of elites and rulers. Scholars such as Brass (1997), Kalyvas (2003, 2006), and Keen (2008) reject this understanding of large-​scale violence and civil war as too simplistic. In an article on the ontology of political violence, Kalyvas (2003, p. 481) argues that the locus of agency is as likely to be at the bottom as at the top of society: “Civilians cannot be treated as passive, manipulated, or invisible actors; indeed, they often manipulate central actors to settle their own conflicts.” Kalyvas (2003) explains that violence in civil war is multifunctional and only possible through alliances between groups and factions at different levels of society. He argues for an understanding of intrastate war informed by the dynamics of local cleavages and intracommunity dynamics. It is misleading to see the actions, motivations, and identities of local actors as mere replicas of central (national) actors. Local actors, at times under the heading of a “master cleavage” (such as ethnic war), pursue their own agendas, both private and political. Hence, “violence in an ethnic or class war may not be ethnic or class violence” (Kalyvas, 2003, p. 481). Often, the larger context of war or genocide allows for the use of different types of violence: private, domestic, criminal, sexual. Although central “master cleavages” certainly inform and motivate local dynamics, Kalyvas notices a disjunction between central and local allegiances. Facilitated by the larger war context, people set out to settle local feuds and private rivalries. In return, these local forms of violence feed back into the general war dynamics. For Kalyvas (2003, p. 486, my emphasis), alliance entails “a transaction between supralocal actors and local actors, whereby the former supply the latter with external muscle, thus allowing them to win decisive local advantage; in exchange the former rely on local conflicts to recruit and motivate supporters and obtain local control, resources and information—​even when their ideological agenda is opposed to localism.” The focus on alliances calls for a fine-​grained and systematic analysis of the dynamics of interaction and the logic of violence in contemporary war. Kalyvas thus holds that civil war fosters interaction among a range of rational actors: local and central, insiders and outsiders, individuals and organizations, civilians and armies. These actors have different identities and pursue different interests. It is the convergence of local motives and national imperatives that “endows civil war with its particular character and leads to joint violence that straddles the divide between the political and the private, the collective and the individual” (Kalyvas, 2003, p. 487). The concept of alliance seems particularly useful when analyzing the violence produced by groups such as al-​Qaeda and Islamic State. As argued by Cockburn (2015, p. 55) in his

152   Jolle Demmers account on the rise of Islamic State, it has long been in the interest of the US and other governments that al-​Qaeda and its offshoots be viewed as top-​down organizations “having a command-​and-​control structure like a mini-​Pentagon.” In other words, that these groups’ leaders are seen as violent entrepreneurs. “This is a comforting image for the public because organized groups, however demonic, can be tracked down and eliminated through imprisonment or death” (Cockburn, 2015, p. 55). Alliances, however, present us with a more alarming reality. From an alliance perspective, al-​Qaeda or the Islamic State is, above all, a “master cleavage,” a rallying cry, a doctrine for making war. Rather than top-​down organizations, these are a set of movements forging alliances, whose adherents are largely “self-​recruited and can spring up anywhere” (Cockburn, 2015, p. 55). In this reading, social boundaries are merely “master cleavages,” instrumentally used by a diversity of actors teaming up to pursue their objectives in settings of war. Outside observers fail to disaggregate the variation in violence during what is often lumped together as one single ethnic or religious conflict. In a similar way, Keen (2008) aims to show the multiple functions served by violence in settings of war and disaster. Rather than conceptualizing war as a contest or a collapse, Keen suggests investigating war and disaster as alternative systems of profit, power, and protection. For Keen (2008, p. 15), “events, however, horrible and catastrophic, are actually produced, they are made to happen by a diverse and complicated set of actors who may well be achieving their objectives in the midst of what looks like failure and breakdown.” Both Kalyvas and Keen support an approach to power that is not carried out from the central level but is negotiated by various actors and through multiple alliances. It is precisely at the intersection of various levels (national, regional, local, private) that power and politics are shaped and mediated. It is not hard to see the relevance of this more disaggregated approach for understanding how atrocities can be carried out. Doing this kind of research demands a sensitivity to the complex ways in which local actors manipulate political organizations and the privatization of political violence. Such insights can help to nuance and understand atrocities not as a binary struggle between unitary groups or blocks A and B, but rather as sets of violent episodes, which are clustered both spatially and temporally. Under the heading of one label (A and B are at war), many different, and at times unrelated, violent episodes occur. Approaches working from the aggregate level of the state tend to treat the cluster themselves (the Rwandan Genocide, sectarian violence in Iraq) as the only serviceable dependent variable. The variety of violent episodes and their sources and dynamics are lumped together under one label and individual cases of violence are automatically processed as part and parcel of that larger conflict. At the end of 2006, for example, the dominant view on violence in Iraq was that of massive sectarian violence between Shia and Sunni communities. Underscoring the view that civil wars are typically aggregations of multiple highly fragmented conflicts, Kalyvas and Kocher (2007), conversely, show how Iraq was the site of at least five conflicts, not one major conflict arising from sectarian violence. Besides the anti-​American insurgency in the Sunni heartland, there was sectarian strife between Shia and Sunni militias in and around Baghdad, but also conflict between Arabs and Kurds in the north, factional strife among rival Shiite militias in the south, and clashes among criminal mafias, contraband gangs, and rogue party militias. The question, often obscured by debates on dichotomies and binaries, but of crucial importance to understanding large-​scale violence, is how the emergence of one conflict affects the intensity and dynamics of the other, and vice versa.

Armed Conflict and Atrocities    153 These perspectives on violent entrepreneurs and alliance formations both highlight the functionality of violence. Although the latter shows a more complex picture of the logic of violence and an appreciation for how leaderships depend on formal and informal alliances with local actors to execute and sustain violence, both perspectives support the idea of large-​scale violence as intentional, instrumental, and planned. Our third perspective takes a somewhat different stance, by bringing in an emphasis on conflict and violence as socially meaningful. Although the power of leaderships and alliances is recognized, the success of their violent trajectories, however, is seen as dependent upon the frames and discourses through which actors present and market a brewing conflict. As is argued by this third perspective: people do not commit violence without a story “they need to talk themselves into it” (Apter, 1997, p. 2).

7.  Framing The wealth of material on large-​scale violence in intrastate conflict has demonstrated that a strong identification with the group, community, or state whose representatives decide on the use of force against “the other” is a key aspect of the mobilization of support for violence. The role and function of constructing “the Enemy” has been thoroughly examined in both international relations theory and other areas of the social sciences. “Discourses on othering and belonging are integral to war, up to the point that ‘we’ are intrinsic to an understanding of what ‘we’ fear” (Campbell, 1998, p. 73). In the large majority of cases, the (ethno)nation—​the most commonplace of identity—​is the location of framing practices of othering and belonging. Jabri (1996, p. 134) argues how a “discourse of origins” is at the heart of conflict: The conflicts of our post–​Cold War era centre around a discourse of origins, where the traditions and territorial claims of forebears are relived and in whose name contemporary and future wars are legitimated. The categories of origins exemplified in constructs such as Israeli, Palestinian, Arab, Muslim, Serb, Turkish, Kurdish, Christian, Hutu, Tutsi, Catholic, Protestant, hark back to a distant past in order to mobilize a bounded, exclusionist present. This is a process of selections and definition, where a dominant identity emerges from a plethora of other possibilities. It seeks to negate and deny difference, to obliterate dissent, in the name of a mythical unified entity, an effective fighting force.

One of the main challenges of conflict analysis is to understand how, but also importantly, why, it is that such reified notions of the self and other emerge in certain times and places. Discourse analysis, and its more concrete application in frame analysis, can be helpful in understanding the onset of war and the making of atrocities. As argued by Sayyid and Zac (1998, p. 261, my emphasis): “The discursive approach focuses on the way in which communities construct their limits: their relationship to that which they are not, or what threatens them: and the narratives which produce the founding past of a community, its identity, and its projections of the future.” Discourses include “representations of how things are and have been, as well as imaginaries—​representations of how things might or could or should be” (Fairclough, 2003, p. 207). For violence to start, it first has to become imaginable. A crucial stage in the run-​up to war is hence its “dress-​rehearsal” in the form of storytelling, celebrating, marching, and visualizing. Anthropologists Schröder and Schmidt (2001, p.

154   Jolle Demmers 9) argue that “violence needs to be imagined in order to be carried out.” In describing the processual characteristics of violent action, they propose a four-​stage model leading from “conflict” to “war.” The first stage, “conflict,” is seen as the (socioeconomic) contradiction at the base of intergroup competition. However, organized violence (“war”) does not automatically result from contradiction. “Wars are made by those individuals, groups or classes that have the power to successfully represent violence as the appropriate course of action in a given situation” (Schröder and Schmidt, 2001, p. 5). So, for war to break out, a second and a third stage, named “confrontation” and “legitimation,” are necessary. “Confrontation” relates to the parties involved in the conflict coming to look upon the contradiction as somehow relevant, creating an antagonistic relationship. During the third stage (“legitimation”), violence is sanctioned as the legitimate course of action through the imagining of violent scenarios; what Schröder and Schmidt (2001, p. 19) call “violent imaginaries.” Finally, during “war,” violence is put into practice. It is thus, in particular, the third stage, “legitimation,” in which violence becomes possible. For Schröder and Schmidt (2001, p. 9), “the most important code of war is its historicity.” Wars are fought from memory, and they are often fought over memory, over the power to establish one’s group view of the past as the legitimate one. From this perspective, violence is not only a resource for solving conflicts over material issues but also a resource in world making, to assert one group’s claim to truth and history against rival claims, with all the social and economic consequences this entails.

But by what means is the legitimacy of violence impressed upon those who are to exercise the violence and those who are to cheer them on? Violent imaginaries, the emphasizing of the historicity of present-​day confrontation, play an important role in the creation of a master frame among the larger public. Through their participation in narratives, performances, and inscriptions, people come to accept and support the violent course of action proposed by their leaders as legitimate and justified. Violent imaginaries, although strongly related to the strategic interests of those who disseminate them, are reproduced socially, through a range of mundane practices: celebrating heroes, saluting the flag, joining a march. As we have seen earlier, there are wide variations in the degree of people’s acceptance and deployment of the “master cleavage.” These correspond with one another on a general level, but in practice each conflict party is made up of numerous sub-​groups pursuing their own agendas. The discursive perspective helps us to understand that social boundaries (ethnic, religious, national, etc.) are not simply dictated from above but are constructed through the imagining of violent scenarios from the past. In turn, these make future violence thinkable and legitimate.

8.  Conclusions In their specific ways, the three approaches discussed in this chapter each outlined the connections between the making of group boundaries and violence. Although not frictionless, they are largely complementary and produce insight into the political and social dynamics of atrocities. In settings of instability, atrocity crimes are instrumentally orchestrated by violent entrepreneurs to renew and/​or harden boundaries between civilian

Armed Conflict and Atrocities    155 populations as a means to gain or attain power. Although these (aspiring) leaderships are crucial drivers, they depend on alliances and relationships of exchange with local actors for the execution and organization of violence. Through these alliances, actors often pursue a range of agendas, which leads to joint violence, committed for multiple purposes. In turn, an analysis of atrocities which only looks at the functionality of violence is unlikely to be convincing. Atrocities are systematic, intentional, and planned acts of violence. But large-​ scale violence needs to be imagined and legitimized in order to be carried out. Through the repeated rehearsal of violent imaginaries from the past which sanction violence as necessary and legitimate, and which render the enemy other as deserving of violence, societies are prepared for, and participate in, making the tragedy of atrocities happen.

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CHAPTER 7

Nat ural Resou rc e s a nd Atro ci t i e s Kieran Mitton 1.  Introduction: Challenges A well-​known challenge in the study of (atrocity) violence is the tendency of scholars to conflate its causes with those of armed conflict. In the twenty-​first century, the burgeoning literature on civil wars, particularly focusing on the micro-​level, has explicitly pushed back against this trend (Kalyvas, 2006).1 This scholarship has sought to treat violence as a phenomenon in its own right, allowing for a more focused approach to the study of atrocity crimes which accounts for variation between drivers of conflict and violence. Nevertheless, in the literature examining the relationship of natural resources with war, atrocities remain subsumed under theories of conflict causation (and recurrence), with the causal mechanisms behind extreme violence typically assumed rather than theoretically or empirically substantiated. This chapter highlights various ways in which this problem has manifested across work on resource scarcity and abundance, but also notes some welcome departures from this tendency. Methodological and disciplinary silos have also tended to obstruct collaboration and exchange between different fields. The studies of violence, civil war, mass atrocities, and genocide hold numerous overlaps and complimentary insights, yet they have tended to work in isolation from one another. For instance, economists have been at the forefront of analysis of civil wars in the early 21st century, but have rarely engaged with the study of genocide, leaving what Anderton and Brauer refer to as both an “economics gap” in genocide studies and a “genocide gap” in economics (Anderton and Brauer, 2016, p. 5). Methodological differences have also hindered cross-​pollination of fields. Macro-​level statistical analyses

1  Though often closely related, violence and conflict are not synonymous: one can exist without the other (Arendt, 1970, p. 19; Brubaker and Laitin 1998, p. 425; Horowitz; 2001, p. 475). Within war, violence is typically highly varied over time and space. Violence and armed conflict often have distinct causes: for instance, Kalyvas notes that micro-​level or “local” violence in civil wars may be about score-​settling between individuals, unconnected to the broader political causes of conflict (Kalyvas, 2006, p. 20).

160   Kieran Mitton of large data sets, typical of many economists’ treatment of “resource wars,” are valuable for their systematic comparative approach, but are invariably criticized for lacking context sensitivity and explanatory power for causal claims. The logical fallacy of equating correlation with causation pervades criticism of cross-​national studies linking measures of resource scarcity or abundance to violence, including the most recent analyses of climate change effects. While positivist peace and conflict scholars in political science and economics have been willing to make causal claims based on such data (see Homer-​Dixon, 1999; Collier and Hoeffler, 2005), human geographers and political ecologists have been more reluctant, wary of perceived “environmental determinism” (Le Billon and Duffy, 2018, p. 239; see also, Hartmann, 2001; Peluso and Watts, 2001; Benjaminsen et al., 2012). Conversely, qualitative approaches, particularly micro-​level ethnographies, though recognized for their rich contextual detail, are criticized for a perceived reliance on anecdotal findings that offer few lessons beyond specific cases, and for holding bias toward sociopolitical factors to the exclusion of the material world (Le Billon and Duffy, 2018). These well-​worn and somewhat reductive critiques are found throughout the scholarship on natural resources and mass violence. Promisingly, more recent research suggests the complementary potential of mixed methods approaches to atrocity crimes, which is increasingly being explored through multidisciplinary and multi-​scalar work that transcends conventional dividing lines of enquiry (see Anderton and Brauer, 2016; Ide, 2017; Le Billon and Duffy, 2018). This chapter discusses two broad areas of enquiry into atrocity crimes as related to the natural environment: first, those focused on the scarcity of natural resources, and second, those focused on their abundance. It begins by exploring the scholarship on resource scarcity, discussing “soft” and “hard” Malthusian arguments concerning civil war, mass killing, and genocide, and outlining the key critiques of this literature. The following section addresses the vast scholarship on resource abundance, exploring so-​called greed arguments concerning civil war violence, the political economy, and rebel governance literature on atrocity, and utilitarian typologies of genocide. After summarizing key critiques of these arguments, the chapter concludes with a look to the future, outlining where existing gaps may be addressed and future research usefully directed in light of unprecedented urbanization and climate change.

2.  Resource Scarcity and Atrocity Crimes The relationship of resource scarcity to conflict has received sustained attention over centuries of analysis. Among the most influential and controversial contributions are the ideas of 18th-​century cleric and economist Thomas Malthus, who anticipated catastrophic consequences of rapid population growth in the midst of the British agricultural revolution. According to Malthus, populations would eventually outgrow the resources needed to support them; without deliberate population control measures, nature’s balance would be restored by other “able ministers of depopulation”—​poverty, famine, disease, and war (Malthus, 1798, p. 61). The thesis provoked heated debate. Karl Marx and Friedrich Engels, among the most vehement critics of the time, argued that poverty and famine should not be understood as natural outcomes of (and solutions to) demographic and environmental pressures, but should rather be understood as fundamentally political problems related

Natural Resources and Atrocities    161 to the inequitable distribution of resources (Marx, 1867; Wiltgen, 1998; Charbit, 2009). In many respects, this divergence of views, of the material reality versus political construction of scarcity and its consequences, remains a defining characteristic of enduring environmental security debates. In the years following the publication of Malthus’s thesis, the world’s population continued to grow at unprecedented rates, but food scarcity and cataclysm never materialized on the scale Malthus had foreseen. Technological innovations in food production and storage, among numerous other advances brought by industrialization, provided solutions to many of the challenges of rapid population growth. Critics argued that Malthus, in his pessimism, had failed to account for the propensity of human scientific and social progress to ameliorate the challenges of growth; indeed, progress and cooperation could be seen as the result of these challenges. However, in the decades since, various authors have claimed that it was only the timing, rather than the theory, that was inaccurate. This often sensationalist work holds that innovation cannot keep pace with population growth indefinitely, and that at some future point – without checks on growth – famine, disease, poverty, and war will be induced by resource scarcity (see for example Paddock and Paddock, 1967; and Ehrlich, 1968). More recent analyses of climate change, population growth, and rapid urbanization in the 21st century raise the alarm over ecological and demographic “entrapment,” a claimed situation in which local (and ultimately global) populations exceed the carrying capacity of their ecosystem, potentially leading to “civilizational collapse” (Levene, 2010; King and Wang, 2006; Butler, 2018, p. 2266). Since its inception, the Malthusian thesis has framed discussions of the relationship between resource scarcity and violent conflict. Various scholars have predicted cataclysmic consequences of urban growth and environmental degradation, and, in some instances, have argued that outbreaks of civil war and genocide are the realization of the Malthusian catastrophe (see for example Kaplan, 1994; Renner, 1996; Diamond, 2005). A “hard” and a “soft” form of this argument can be usefully identified in scholarship: in the former, the causal relationship is seen as direct and environmentally determined, while in the latter, the relationship is indirect as scarcity interacts with other social, economic, and political determinants.

2.1. New Barbarism One of the most prominent incarnations of hard neo-​Malthusianism came in the 1990s amid a particularly influential wave of analysis that reconceptualized post–​Cold War conflict and genocide as “new wars” (Kaldor, 1999; Shaw, 2000, 2007). Violence in sub-​Saharan Africa and the Balkans was given particular focus in much of this writing, which argued that war defined by the global contest of superpowers had been succeeded by that born of non-​ideological, identity-​based, or essentially criminal motives (Van Creveld, 1991; Kaplan, 1993). State collapse was said to have unleashed criminal anarchy, in which sustaining war to reap material rewards, rather than winning it, was understood as the main aim of many protagonists. An offshoot of the new wars theory went further by explicitly linking state collapse, which supposedly set loose this anarchy, to scarcity and overpopulation.2 Labeled 2 

Mary Kaldor explicitly distances her work on new wars from New Barbarism and those approaches describing conflict as anarchy (see Kaldor, 2013).

162   Kieran Mitton “New Barbarism” and “Malthus with guns” by one critic (Richards, 1996, p. xiii), its defining work was Robert Kaplan’s 1994 article, “The Coming Anarchy: How Scarcity, Crime, Overpopulation, Tribalism, and Disease Are Rapidly Destroying the Social Fabric of Our Planet” (Kaplan, 1994). Referencing Malthus, Kaplan argued that the environment was a “hostile power” and that nature was “back with a vengeance” (Kaplan, 1994, p. 54). Wars in the Balkans, Liberia, Sierra Leone, Sri Lanka, and beyond, were described as stemming from urban overpopulation and violent competition for scarce resources in the absence of state order. Violence was now less about ideological or political aims than about criminal opportunism, religious and ethnic enmities, or even—​for some—​“about nothing at all” (Enzensberger, 1993, p. 60). As such, atrocities were central in New Barbarism accounts of conflict, particularly acts of violence targeting civilians such as looting and rape that, superficially at least, seemed counterproductive to the conventional goals of a political insurgency. These wars were supposedly atavistic, described as Mad Max–​like “Hobbesian playgrounds” (Hedges, 2003, p. 163; see also Enzensberger, 1993; Kaplan, 1993). Characterized by looting, the use of child soldiers, and the frequent targeting of civilians for rape, mutilation, and murder, the “intense savagery” of these wars was taken as evidence that combatants had descended to primal depths of barbarism (Kaplan, 1994, p. 71). Seen through this lens, atrocities needed no further explanation than that scarcity and overpopulation had unleashed the violence lurking in human nature. The New Barbarism accounts of atrocity in the 1990s were roundly criticized for reproducing Western essentialist and racist tropes about Africa and the developing world (Dalby, 1996; Duffield, 2001, pp. 114–​115; Mkandawire 2002, pp. 183–​184; Tuastad, 2003; Gberie, 2005, pp. 4–​5; Keen, 2005, p. 57; Baaz and Stern, 2008, pp. 57–​59). In specific regard to their Malthusian claims, critiques highlighted the contradictions that arose in many of the often-​cited cases of supposed overpopulation and resource scarcity, which relied heavily on anecdotal evidence. Sierra Leone, for example, had a small population and an abundance of natural resources. Degradation of its rainforests pointed not toward scarcity but to the monopolization of ample resources by political elites (Richards, 1996). The substantial literature on resource abundance (discussed further later) has thus convincingly shown this scarcity argument to be ill-​suited to many cases of civil war cited by New Barbarism. In their emphasis on anarchy, criminality, and senseless violence, New Barbarism accounts have also been heavily criticized for depoliticizing violence and natural resources, stripping them of their historical and socioeconomic context. An influential rebuttal to Robert Kaplan’s “The Coming Anarchy” came in “Fighting for the Rainforest,” by anthropologist Paul Richards (1996), which explicitly connected the natural environment and conflict over resources not to scarcity per se, but to long-​standing political grievances over the (mis)management and monopolization of those resources by patrimonial elites. Drawing on an ethnography of Sierra Leone’s civil war, Richards’s work showed that the relationship of rebel atrocities to natural resources could not be adequately understood without consideration of this historical, social, political, and economic context. A related criticism has also been made of New Barbarism’s deterministic view of base human nature and its lack of specificity on the precise casual mechanisms linking environmental pressures to extreme violence. Often written in a journalistic style, the New Barbarism accounts implied a Hobbesian view of conflict whereby wanton and senseless violence occurs in the absence of restraints, both physical (state control) and cultural—​ atrocities occur, in Kaplan’s words, “in places where the Western Enlightenment has not

Natural Resources and Atrocities    163 penetrated” (Kaplan, 1994, p. 72). Resource scarcity and demographic pressures were seen as having broken the chains of civilization that were holding this violent human nature in check. However, a substantial civil wars literature on the rationality of violence began to emerge in the late 1990s, spanning disciplines and regional foci, with a particularly significant contribution from economists and political scientists. This scholarship challenged the conceptualization of conflict as a collapse of order by identifying the strategic and instrumental logic shaping atrocity crimes, which invariably served the rational political and economic agendas of war actors (Keen, 1998; Collier and Hoeffler, 1999; Kalyvas, 1999; Berdal and Malone, 2000). For some, the appearance of anarchy and disorder could even be understood as part of an armed group’s strategy (Keen, 1997). The inadequacy of understanding violence as a by-​product of disorder or “a crime of passion” has also been emphasized in studies of genocide that articulate the “deliberate, purposeful, and focused” rationality of its perpetrators (Anderton and Brauer, 2016, p. 3; see also Shaw, 2007; Straus, 2012, p. 552). Accordingly, the New Barbarism view of scarcity as a cause of atrocities through its unleashing of uncontrolled, innate violence remains strongly contested in the literature on civil wars and genocide.

2.2. Environmental security literature A second, distinct incarnation of neo-​Malthusianism emerged alongside New Barbarism and was invoked in much of Kaplan’s writing. Emanating from work undertaken in the field of political science, and increasingly incorporating contributions from economics, public health, and the environmental sciences, it can be understood as constituting an “environmental security” literature that ranges from “soft” to “hard” Malthusianism. This work has given greater focus to local rather than global catastrophic violence as a result of scarcity, and has taken into account social, political, and economic risk factors behind conflict causation. It continues to shape discussion of urbanization, climate change, and scarcity of renewable resources such as water, forests, and agricultural land (Le Billon and Duffy, 2018). In its hard form, the causal relationship between overpopulation, scarcity, and violence is treated as direct and materially determined (Renner, 1996; Diamond, 2005). In its softer form, this analysis treats the effects of scarcity as conditional upon its form and the context in which it occurs. Depending on levels of development, the strength of institutions, and the degree of ethnic or religious fractionalization, environmental security literature argues that scarcity may multiply or exacerbate pre-​existing risks of violence (Verpoorten, 2012). The work of Thomas Homer-​Dixon is prominent in this area and gives particular emphasis to the capacity of environmental scarcity to contribute to violence in the form of group identity conflicts and insurgencies (Homer-​Dixon, 1999, 2008). Interstate wars spurred over contested (or coveted) resources such as water—​“simple scarcity conflicts” in Homer-​Dixon’s analysis—​are seen as rare (Homer-​Dixon, 1999, pp. 137–​141). Echoing Malthus, Homer-​Dixon argues that scarcity conflict will increase in coming decades, especially in the developing world. However, Homer-​Dixon emphasizes that the causal relationship is often “obscure and indirect,” and that scarcity is a catalyst for violence through its interaction with and exacerbation of existing political, economic, and social stresses (Homer-​Dixon, 1999, p. 177). The likelihood of insurgency, according to this theory, is highest when environmental scarcity simultaneously boosts grievances and the opportunity

164   Kieran Mitton for collective violence, for example by exacerbating economic hardship and dislocation, leading to increased intergroup segmentation, and by weakening institutions that might effectively contain violence (Homer-​Dixon, 1999, pp. 142–​147). Large-​scale migration to urban areas resulting from resource scarcity is understood as a key stressor likely to exacerbate identity conflicts and result in intergroup violence: “As different ethnic and cultural groups are propelled together under stressful circumstances,” Homer-​Dixon argues, “we often see intergroup hostility with a strong identity dynamic” (Homer-​Dixon, 1999, p. 141). It is in discussion of identity-​based violence3 that the environmental security literature comes closest to examining the relationship of resource scarcity to atrocity crimes specifically, rather than to conflict more generally. The 1994 Rwandan Genocide is an often cited case used to explore this argument.4 In the most Malthusian formulations, the genocide has been described as having been likely, or even inevitable, due to arable land degradation, rapid population growth, and increased population density in the years preceding the atrocity crimes (Renner, 1996; André and Platteau, 1998; Diamond, 2005; Friedman, 2016). These environmental and demographic pressures are argued to have combined with embedded socioeconomic and political inequalities, particularly in regard to the distribution of land, to create the incentives for violence against the Tutsi (Diamond, 2005; McNab & Mohamed, 2006). A similar argument pervades analysis of urban and non-​war contexts in the developing world, in which rapid urbanization and scarcity are held to exacerbate cleavages between rich and poor, or between ethnic and religious groups, and by so doing give rise to criminal and communal violence (Homer-​Dixon, 1999, pp. 160–​166). A burgeoning literature warns of the growth of such violence in so-​called fragile cities, because they lack the capacity or political will to manage these pressures (Beall, 2007; Patel and Burkle, 2012; Moser and McIlwaine, 2014; Muggah, 2015; Cockayne et al., 2017). Likewise, various climate-​security studies have conceptualized climate change as a “threat multiplier” in “fragile” regions (Nagarajan et al., 2018, p. 5). By inducing drought, famine, flooding, agricultural insecurity, and migration, it is said to exacerbate political and social fault lines, leading to communal violence and civil war (Fjelde and von Uexkull, 2012; Hendrix and Salehyan, 2012; Scheffran et al., 2012; Bowles et al., 2015; Burke et al., 2015; Caruso et al., 2016). Focal points for much of this scholarship are wars and pastoral-​herder conflicts in the Sahel region, the Lake Chad Basin, and the Horn of Africa (Gilmore et al., 2018, p. 315). The outbreak of the Syrian civil war in 2011 has also received particular attention. Various scholars identify water scarcity and climatic conditions as having devastated agricultural livelihoods, spurring rural-​to-​urban migration which, in turn, exacerbated urban grievances and inequalities (through increasing strain on local resources), leading to anti-​ regime protest and eventually violence (Gleick, 2014; Werrell et al., 2015; Kelley et al., 2017). Although far more sophisticated than New Barbarism in its analysis and methods, the environmental security literature has likewise been criticized for its inconsistent or inconclusive evidence base, with some critiques claiming a selection bias toward case studies and data that fit the theory (Gleditsch, 1998; Friedman, 2016). Critics observe that a hard

3  For

further discussion of identity groups, social boundary–​making and atrocity violence see also Chapter 6 by Jolle Demmers in this volume. 4  Importantly, Homer-​Dixon, among many others, rejects a Malthusian reading of the Rwandan case (see Percival and Homer-​Dixon, 1996). These critiques are discussed in due course.

Natural Resources and Atrocities    165 Malthusian argument cannot explain why many countries with high population density pressure and high poverty, such as Bangladesh, Tanzania, and Vietnam, do not succumb to intense violence (Gleditsch, 1998; Hauge and Ellingsen, 1998; Uvin, 1998; Urdal and Gleditsch, 2002; Urdal, 2005; Mcnab and Mohamed, 2006; Yanagizawa, 2006; Friedman, 2016). In countries that do experience intense violence, contradictory evidence abounds. For example, Verwimp’s study finds that during the Rwandan Genocide, areas of high population density and population pressure were not associated with higher levels of violence (Verwimp, 2005; Friedman, 2016, p. 342; but see Verpoorten, 2012), and there is equally limited evidence to link deprivation at the community or household level to the perpetration of violence (Verwimp, 2005; McDoom, 2014). McDoom notes that neo-​Malthusian arguments fail to account for the timing of the Rwandan Genocide; population density was high long before 1994, and demographic pressures have been even greater since (McDoom, 2011, pp. 7–​8).5 Percival and Homer-​Dixon (1996) explicitly reject the Malthusian argument in the case of Rwanda, noting the central role played by residents of areas with lower population density and political elites who were largely unaffected by scarce resources. Large cross-​ country analyses that draw on national-​level measures of population density, population growth, deforestation, soil degradation, and water scarcity (e.g., Collier and Hoeffler, 1998; Urdal, 2005; Theisen, 2008), have also found only limited evidence for a causal relationship with violence, underlining that the central claims of both hard and soft neo-​Malthusian arguments remain empirically contested (Verpoorten, 2012, p. 3). This is particularly evident in the growing sub-​body of “climate-​security” scholarship focused upon effects of climate change. In the case of Darfur, which received significant attention for being the “first climate war” (e.g. Mazo, 2009 pp. 73–​86; Welzer, 2012, pp. 61–​65), critics have argued that the region was not marked by drought preceding or during violence, and that political and economic factors were more significant (Kevane and Gray, 2008; Selby and Hoffman, 2014; Selby et al., 2017, p. 233). Similarly in the case of Syria, studies linking violence to water scarcity have been criticized as “seriously flawed” for conflating correlation with causation, lacking empirical evidence to support a causal relationship, and for inadequately accounting for political factors that predated drought (Selby et al., 2017, p. 233; De Châtel, 2014; Ide, 2018). Despite the soft neo-​Malthusian approach taken by those such as Homer-​Dixon, which recognizes the political and social structures shaping both violence and scarcity, the environmental security literature has been criticized for an inclination toward environmental and demographic determinism that obscures these factors (Barnett, 2000, p. 281; Peluso and Watts, 2001; Verhoeven, 2011; Le Billon and Duffy, 2018). Particularly in regard to studies of climate change, a number of critics have related this relative neglect of political and social structures to positivist literature’s perceived overreliance on large-​N studies and insensitivity to the local context and multidimensionality of specific conflicts (Solow, 2013; Selby, 2014). Political ecologists have also argued that treatment of the natural environment in “national security” terms obscures the complex relationship between political conditions

5 

Interestingly, and highlighting the danger of assuming rather than investigating causal relationships, McDoom’s research does suggest that population density in Rwanda may have contributed to mobilization and the spread of violence, but as a consequence of the density of social networks rather than from Malthusian scarcity dynamics (McDoom, 2013).

166   Kieran Mitton and the onset of conflict and scarcity itself (Dalby, 2002; Le Billon, 2007, p. 168; Verhoeven, 2011). Certainly, in its hardest formulation, the deterministic neo-​Malthusian argument can be criticized for missing important root causes of violence, such as the political configuration in a society, in which the real or perceived relative deprivation of groups, rather than absolute scarcity itself, may provide motives and opportunities for mass mobilization for violence. The context of social and political polarization proves important in most accounts of the Rwandan Genocide, whether from a political, social, cultural, or economic perspective. Likewise, the environmental security literature has been criticized for neglecting the political causes of environmental crises, and the extent to which these environmental crises may be exploited or entirely fabricated for political and economic gain. For example, studies of famine in Sudan have found that the environmental crisis was perpetuated and exploited by national and local elites for political, economic, and military advantage (Keen, 1994; Verhoeven, 2011, p. 685; De Waal, 2017). Such research cautions against uncritically accepting explanations for violence framed in environmental terms. The manner in which the discourse and fear of resource scarcity may be weaponized against certain groups within a society may be significant in linking environmental insecurity and atrocity crimes: “The problem is not violence or starvation caused by scarcity, but how narratives of scarcity are deployed to rationalize aggressive policies” (De Waal, 2016). The cited criticisms and ensuing (often fraught) debate have been complicated by the diversity of soft and hard Malthusian approaches within the environmental security literature, and the frequent conflation of the two. This point has been central to the responses offered by Homer-​Dixon and others who regard critics as misleadingly projecting the flaws of hard Malthusian analyses on to their more moderate approach (see Homer-​Dixon et al., 2003; Uvin, 1998, p. 183).6 Their research does indeed emphasize the role that resource scarcity and demographic pressures play in providing opportunity or momentum to pre-​existing social and political fractures, such as pronounced horizontal and vertical inequalities (Friedman, 2016). Criticisms concerning overreliance on large cross-​national data sets, spurious correlations, and causal assumptions remain pertinent, particularly regarding more recent climate change research (Selby, 2014, p. 829; Ide, 2017). However, they should not obscure the qualitative case study work already undertaken in this field,7 and may become less relevant as efforts to explore the potential of mixed methods and collaborative research gain momentum across disciplines (Solow, 2013; De Juan, 2015; Ide, 2017; Le Billon and Duffy, 2018). Finally, the environmental security literature has followed the tendency of the wider scholarship on war and genocide to make general claims concerning conflict with limited discussion of the precise causal mechanisms behind violence. Morris Miller (2000), among others (see for example Barnett, 2000, p. 283), has highlighted this challenge in the work of scholars such as Homer-​Dixon, Michael Renner, and Peter Gleick. Though he recognizes these authors’ allusions to “social discontent and polarization” and “political frictions and tensions,” he notes: “The pertinent question not answered by any of them is: how does

6 

However, some critics point to a greater degree of Malthusian “essentialism” in Homer-​Dixon’s early work (see Verhoeven, 2011, p. 682). 7  In fact, Homer-​Dixon’s work has been criticized by some for overreliance on case studies (Urdal and Gleditsch, 2002, p. 296; Le Billon and Duffy, 2018, p. 250).

Natural Resources and Atrocities    167 tension and the resultant stress become transmuted into armed violence in the form of large-​scale conflict? This transmutation cannot be assumed” (Miller, 2000, pp. 86–​87). This explanatory gap may persist because at the heart of soft Malthusian arguments is an implicit and often explicit understanding that other factors, such as structural political inequalities, and not scarcity itself, play the crucial role in fomenting and shaping violence. As such, it is left to theories such as those concerning relative deprivation (Gurr, 1970, 1993; Tilly, 1998, 2003) and horizontal inequalities (Stewart, 2008) to perform the explanatory work on violence, particularly when seeking to understand when and in what form atrocity crimes might occur.

2.3. Beyond Malthus It is important to note that though much analysis on resource scarcity is said to be haunted by the “ghost of Malthus,” research has also followed distinct pathways that examine scarcity in its potential to constrain rather than cause violence. A growing body of work examines the relationship between mass violence, civilian targeting in war and genocide, and logistical capacity (Anderton et al., 2016; Rogall, 2014). For example, Zhukov (2016) explores the logistical constraints on the “quantity and quality” of violence against civilians by drawing on disaggregated data from 58 low-​intensity conflicts as well as archival data on the Soviet Union and Nazi Germany. He finds that “where external resources are difficult or impossible to obtain, mass violence will be difficult or impossible to produce,” but where resources are abundant, “violence can be more intense and often more indiscriminate” (Zhukov, 2016, pp. 403, 419). Similar claims have been made in studies of civil war regarding the constraining effects of resources on armed groups’ discipline, motives, and ideological coherence. One position holds that non-​state actors with limited resources are likely to be more reliant on civilian support, less ideologically corrupted by profit-​seeking recruits, and so less violent toward civilians (Weinstein, 2007; Beardsley and McQuinn, 2009; Wood, 2014; Salehyan et al., 2014; Fortna et al., 2018). Reversing this position, scholars have also argued that scarcity may increase violence by rendering groups materially reliant upon civilians; unable to offer sufficient economic incentives to secure popular support, they resort to violent coercion where civilians do not give it voluntarily (see Wood, 2010, p. 982). Another argument holds that scarcity erodes military discipline and encourages irregular warfare which “easily degenerates into brutalizing terror” (Kalyvas, 2007, p. 1149; Ellis, 1999; 2003). The extent to which the likelihood of wartime atrocity crimes is related to an armed group’s resource endowments is a debate that has received far greater attention in the scholarship on resource abundance, and it is to this literature that we now turn.

3.  Resource Abundance and Atrocity Crimes Scarcity-​centered theories on the causes of violence have been strongly challenged by a large body of work that instead focuses on the relationship between resource abundance and conflict. This scholarship not only explores the role that resources may play in causing,

168   Kieran Mitton enabling, or sustaining wars (e.g., Collier, 2000; Collier and Hoeffler, 2005; Humphreys, 2005; Ross, 2004), but also considers how they may shape the intensity, scale, and form of violence (e.g., Keen, 1998, 2000; Marriage, 2016; Malaquias, 2001; Weinstein, 2007). The contention that competition for abundant resources may lead to especially brutal or cruel violence is an old one, deeply embedded in popular understandings of atrocity crimes throughout history. Accounts of colonial expansion and the “scramble for Africa” are characterized by violent atrocities against civilian populations, often in the pursuit of natural resources such as rubber and gold (Hothschild, 1998; Moses, 2008; Schaller, 2010; Thomas, 2012). Much of the New Barbarism literature drew direct comparisons between violence of the 1990s and medieval European forms of criminal banditry, rape, and pillage; comparisons which have echoed across the literature on the political economy of war in discussion of “blood diamonds” and warlordism (Reno 1998; Alao, 1999; Le Billon, 2006). However, the latter scholarship can be sharply distinguished from New Barbarism’s emphasis on anarchy and “senseless” violence through its location at the opposite end of the order spectrum. Strongly associated with political science and economics analysis, this approach has understood conflict not as a breakdown of order, but rather as the emergence of alternative orders, with even the most extreme and seemingly counterproductive forms of violence guided by the rational strategic calculations of its perpetrators. At least three main explanations of atrocity crimes can be discerned in the resource-​ abundance literature. First, violence is understood as a terror tactic, aimed at achieving strategic or opportunistic goals linked to material profit (Keen, 1998, 2000, 2005; Azam and Hoeffler, 2002; Gberie, 2005; Fortna et al., 2018). This is an argument about the instrumentality of violence. Second, violence against civilians is understood as an unintended consequence of the irrelevance of popular support for group survival. In situations where armed groups have access to abundant resources, they are self-​sufficient and may not need or seek civilian support. This means that they may not expend organizational effort to instill strong norms and deterrents against civilian abuses in their ranks. In this climate of impunity, it is argued, abuses become more likely. Furthermore, these abuses are likely to result in weak or hostile relationships between rebels and civilians, leading groups to rely on further violence to control the population (Weinstein, 2007; Beardsley and McQuinn, 2009; Salehyan et al., 2014; Hoeffler, 2016). This is an argument about violence “as an unintended organizational by-​product rather than the outcome of the intentional pursuit of specific goals” (Kalvyas, 2007, p. 1146). Third, and an extension of the latter, violence is understood as resulting from the opportunistic and criminal character of recruits, motivated to fight for loot and profit rather than ideological or “activist” aims (Weinstein, 2007). A number of studies implicitly or explicitly argue that groups motivated by economic greed attract and promote “bad” characters, “psychopaths” (Henderson, 1985, p. 149), and “sociopaths” (Reno, 1998, p. 54), with a propensity toward violent abuses (Gberie, 2005; Kalyvas, 2006, p. 57; Mueller, 2000, pp. 42–​43). This explanation is essentially an understanding of violence as resulting from the psychology of individuals and the behavioral norms of a supposed criminal or “lumpen” social strata (Abdullah, 1998; Ellis, 1999, p. 134). These approaches can be identified in various forms in three broad areas of work, discussed in turn shortly. First, in work that centers around a “greed versus grievance” debate over the causes of so-​called resource wars (e.g., Collier and Hoeffler, 1999; Keen, 2000; Reno, 2000; Duffield, 2001; Cramer, 2002); second, in later micro-​level studies of civil wars specifically focused on resources, rebel governance,

Natural Resources and Atrocities    169 and atrocity crimes (e.g., Weinstein, 2007; Beardsley and McQuinn, 2009); and third, in large-​N studies of genocide and mass killings in the fields of economics and political science (e.g., Esteban et al., 2015).

3.1. Greed and the political economy of resource wars One of the most influential contributions on the relationship of resource abundance to atrocity crimes emerged in the late 1990s as a response to the dominance of explanations of atrocity crimes centered on group grievances and intergroup hatreds (Collier, 2000, p. 91). Drawing on econometric analysis of large cross-​country data sets to explore the causes of civil war, economists Paul Collier and Anke Hoeffler found a limited relationship between the onset of war with poverty, ethnic cleavages, or political grievances, but a strong relationship with “lootable” natural resources and various proxies for “greed” (Collier, 2000; Collier and Hoeffler, 1999, 2005). Accordingly, Collier concluded that “[t]‌he true cause of much civil war is not the loud discourse of grievance, but the silent force of greed” (Collier, 2000, p. 8). In this understanding, rebel groups’ claims of ideological motivation and political grievances concerning injustices are used to mask and service their “true” interest, which is to capture and profit from resources. The more abundant the resources, the greater the risk may be of war. Countries with a high dependency upon primary commodity exports, such as oil and diamonds, are held to be at particular risk of conflict; the potential lucrative gains for rebel groups that capture these resources offset the potential costs of violence, while the weakness of the state—​a consequence of reliance on natural resource exports—​is argued to make armed rebellion more feasible.8 In Collier’s analysis, other factors, such as high proportions of young men in a population and low levels of education, also increase risks of war. In reframing conflicts as resource wars driven by economic agendas rather than by ideological aims or intergroup hatreds, such analyses provided an explanation for atrocity crimes that centered on the instrumentality and order of violence, rather than its supposed anarchic senselessness (as emphasized by New Barbarism). Violence against civilians in conflicts in Angola, Cambodia, Colombia, and Liberia was not counterproductive or irrational, it was argued, since perpetrators were not truly pursuing political aims or seeking to win the “hearts and minds” of the population—​their motives were to capture and profit from diamonds, drugs, and timber (Collier and Hoeffler, 1999, p. 1; 2000, p. 2). In this respect, atrocities proved useful to armed groups as a terror tactic, for example by allowing them to depopulate resource-​rich areas or control the civilian population as a source of labor and recruitment (Azam and Hoeffler, 2002). Collier’s work met with strong rebuttals, discussed in due course, in what became known as the “greed versus grievance” debate (see for example, Ballentine and Sherman, 2003; Berdal, 2005). A distinct literature focused on the political economy of war, which included

8 

Collier’s later work focuses on what makes rebellions feasible, rather than what causes them, which is a significant moderation of his early claims concerning “greed” motives. However, this distinction does not significantly affect his interpretation of the causes of atrocity crimes.

170   Kieran Mitton vocal critics of the “greed thesis” and drew on qualitative case study research, nevertheless agreed on the significance of natural resources in shaping brutal yet inherently rational violence in civil wars (Keen, 1997, 1998, 2000; Reno, 2000; Duffield, 2001; Le Billon, 2001). Keen, for example, stressed that the seemingly chaotic and counterproductive violence depicted by New Barbarism was often highly instrumental, rationally employed, and served economic functions that were a driving force of conflict (Keen, 1997, 1998, 2000). A key starting point of much of this analysis was that war itself may not be a disaster for all concerned: economically motivated actors may seek to sustain and benefit from conflict, and likewise, violence that may seem irrational or counterproductive—​such as the targeting of civilians—​may make more sense if winning the war is not the end-​goal of belligerents (Keen, 1997, pp. 70–​7 1). Through such political economy accounts, the atrocities of conflicts in Angola (Frynas and Wood, 2001; Le Billon, 2001; Orogun, 2004), Bosnia (Mueller, 2000; Andreas, 2004), Colombia (Richani, 1997; Guáqueta, 2003; Gray, 2008, p. 67), Liberia (Ellis, 1999; Reno, 2000,p. 54), Sierra Leone (Gberie, 2005; Keen, 1997; 2005), and beyond, in which potential civilian supporters were heavily targeted by rebels, may become explicable due to looting and trade in illicit resources such as “blood diamonds” and narcotics. The influence of rationalist “greed” and political economy perspectives remains strong in attempts to account for violence in civil wars. The seemingly perpetual conflict of the Eastern Democratic Republic of the Congo (DRC) has taken center stage in much of this analysis, particularly in studies conceptualizing sexual violence as a “weapon of war” (Brown, 2012; Meger, 2016; Buss, 2018). Competition for mineral resources such as coltan, diamonds, and gold are portrayed as the “engines of chaos” (Laudati, 2013, p. 33), with atrocity crimes performing a crucial function in the “war machine” (Marriage, 2016, p. 357). Jackson (2002, p. 517) sums up the logic of many of these arguments: “Profits increasingly motivate the violence, and violence increasingly makes profits possible for all belligerents.” As in conflict in Afghanistan (Goodhand, 2005, pp. 199, 203; Giustozzi, 2007), Syria (Hallaj, 2015; Steenkamp, 2017), Iraq (Green and Ward, 2009), and elsewhere, violence in the DRC is understood to perform various meso-​and micro-​level functions as a tactic of terror, allowing members of armed groups to control populations and maintain the profitable enterprise of war. Forced conscription, particularly of youth, enables armed groups to sustain their numbers in the absence of willing volunteers (Marriage, 2016, p. 361); forcing conscripts into acts of extreme violence helps groups to deter desertion and improve group cohesion (Mitton, 2015; Cohen, 2017). At the individual micro-​level, a consequence of this climate of criminal violence is that young combatants are exposed to “heightened levels of aggression,” contributing to an increase in violence that may not be aligned to strategic goals (Marriage, 2016, p. 361). The literature on resource abundance has provided an expansive range of analysis that has convincingly highlighted the role played by the rational economic strategies of conflict actors in shaping violence. As a corrective to New Barbarism and its emphasis on anarchy, and as a challenge to Malthusian arguments, it has proven broadly effective. However, echoing critiques of the scarcity literature, Collier’s “greed thesis” in particular has been challenged on its methods, empirical basis, limited engagement with political context, and limited specificity regarding the causal mechanisms behind violence. The use of large-​N studies and cross-​case comparative statistical analysis has been heavily criticized for producing contradictory results: similar studies find that abundant natural resources

Natural Resources and Atrocities    171 are not significantly related to war onset (see for example, Elbadawi and Sambanis, 2002; Fearon and Laitin, 2003; Rigterink, 2010, p. 8). Various scholars criticize Collier and colleagues for drawing on selective or incomplete data, for utilizing inappropriate proxies and measurements of “greed” (such as education levels), and for conflating correlation with causation (Cramer, 2002; Nathan, 2005; Ross, 2006; Keen, 2012; Cuvelier et al., 2013, p. 8). Nathan notes that Collier’s findings are inferred from correlations that are not based on any actual evidence of rebel behavior (Nathan, 2005, p. 1; see also Keen, 2012, p. 761). Micro-​level claims are drawn from macro-​level measures of primary commodity exports, youth populations, and education levels. In other words, the “greed thesis” infers individual rebel motivations from national statistics (Ballentine and Sherman, 2003; Sambanis, 2004, p. 259; Beardsley and McQuinn, 2009, p. 626). The suitability of such an approach is further challenged by Collier’s focus on rebel groups to the exclusion of state forces (Keen, 2012, p. 768). The use of large macro-​level data sets in “greed” arguments may also account for this scholarship’s much-​criticized depoliticizing essentialism, in which “criminal” readings of violence may obscure or downplay the local political, social, and historical contexts shaping violence. The portrayal of rebel actors as essentially criminally motivated marks a major point of difference between Collier’s analysis and that of much of the political economy literature. This stream of scholarship, by contrast, has tended to view economic incentives and agendas as existing alongside, and interacting with, other important political causes and dynamics of violence (Cramer, 2002, 2006; Keen, 2012). Keen, for example, advocates for an understanding of the economic functions atrocities perform in war, but finds that Collier’s exclusion of grievances (and the justifications provided by perpetrators) ignores contrary findings from the substantial research on horizontal inequalities (see Stewart, 2008; Keen, 2012, p. 760). For Zartman, Collier’s dismissal of grievances is quite simply “empirically wrong and ideologically perverse” (Zartman, 2005, p. 259). Further, it is argued, Collier effectively delegitimizes the actions of non-​state actors (Duffield, 2001; Keen, 2012, pp. 767–​768). Keen references the DRC in arguing that research on resource abundance must address “the intensity of some of the grievances within military organizations and how these have fed into atrocities,” and more generally answer the question: “where greed has gained a hold, what grievances have made people so violently greedy?” (Keen, 2012, p. 777). In this respect, Keen’s criticisms echo those of Le Billon, who observes that “resource war” arguments risk missing the political dimensions of conflicts when resources are reduced purely to their economic or utilitarian value (Le Billon, 2007, p. 164). Fundamentally, the division of “greed” and “grievance” may be viewed as a false dichotomy that unhelpfully obscures the interrelated nature of economic and political factors that shape the relationship of resources to violence (Ballentine and Sherman, 2003; Berdal, 2005; Keen, 2012). The dangerous reductionism of the “greed” discourse is further recognized in criticisms of the exaggerated emphasis given to the role of conflict minerals in the DRC’s civil war. Various studies highlight the emergence of a “rape-​resource” narrative which links sexual violence to economic predation as a “weapon of war” (Bos, 2006; Baaz and Stern, 2013; 2018; Buss, 2018; Laudati and Mertens, 2019). Problematically, Laudati and Mertens argue, this narrative presents “a highly simplified version of a multifaceted reality” that distorts the “complexity and messiness of warring and rape” (Laudati and Mertens, 2019, p. 19). Historical context and gendered dynamics of atrocity crimes are obscured (Baaz and Stern,

172   Kieran Mitton 2008, 2013, 2018), while contradictory evidence on non-​strategic or “opportunistic” rape (Cohen, 2017; Wood, 2018)9 and the perpetration of sexual violence in non-​mining areas (Buss, 2018; Laudati and Mertens, 2019) is entirely ignored. The political economy literature, with its use of qualitative and case study methods, has avoided many of the problems of ahistorical and depoliticized analysis associated with econometric work. However, both sets of scholarship have been primarily concerned with the causes or sustaining dynamics of conflict, with explanations of atrocity crimes often treated as a corollary of explanations of war. Consequently, they rarely address violence that may not relate to the causes of war or the economic dimensions with which this literature is concerned (Kalyvas, 2006, p. 20; Mitton, 2015, pp. 108–​111). This includes violence of a non-​ instrumental nature. The literature on resource abundance has been challenged for its heavy emphasis on the economic rationality of violence and the view of perpetrators as engaging in cost-​benefit maximizing behavior. Cramer regards this rational-​choice economics model as failing to capture the crucial social dynamics of behavior by individuals in war: as such, greed accounts are “extreme in their reductionism and fail in explanatory terms” (Cramer, 2002, p. 1856; see also Winslow and Woost, 2004, p. 16). Keen similarly acknowledges the limits of employing a rational violence framework in his own work, in which a conceptualization of individuals as “calmly deciding between alternatives on the basis of their self-​ interest” fails to adequately incorporate “the anger and fear manifest in the extreme violence in Sierra Leone” (Keen, 2002, p. 4). He adds: “this hardly describes the situation of drugged up, abused and abusive youths who may be terrified as well as terrifying” (Keen, 2005, p. 54). Various scholars have thus increasingly emphasized the need to look beyond the rational-​actor framework to better capture the important interaction of psychological and emotional dynamics in genocide and civil wars, including those related to resources (e.g., Cramer, 2002; Keen, 2005; McDoom, 2012; Mitton, 2015).

3.2. Rebel governance and atrocity crimes A more recent literature on rebel governance explores the role played by resources in shaping non-​state armed groups’ strategies and relationships with civilian populations (Kasfir, 2005; Mampilly 2007; Cuvelier et al., 2013, p. 10; Arjona et al., 2015; Arjona, 2016). This scholarship has explored the micro-​level dynamics of violence through both quantitative and qualitative methods, primarily as it relates to rebel organization and strategies to govern territory and populations. In contrast to the “greed” literature, it has addressed sub-​ national variation in the behavior of different insurgent groups (Mampilly, 2007; Weinstein, 2007; Ottmann, 2017). One of the most influential contributions that focuses specifically on resources and violence comes from Jeremy Weinstein (2007) in Inside Rebellion: The Politics of Insurgent Violence. Weinstein flips the Malthusian argument on its head by arguing that abundance of natural resources (or foreign sponsorship) causes rebel violence against civilians, while scarcity constrains it. Deploying both qualitative and quantitative data from research of conflicts in Uganda, Mozambique, and Peru, Weinstein explores the link between the resources 9 

See also Chapter 27 by Kim Thuy Seelinger and Elisabeth Wood in this volume.

Natural Resources and Atrocities    173 available to non-​state armed groups and the forms of relationship-​building they undertake with local populations in order to sustain themselves or achieve their goals. He distinguishes between “activist” groups—​armed actors driven by ideology and reliant upon civilian support in the absence of independent resources—​and “opportunistic” groups—​armed actors driven by material agendas with access to abundant resources (Weinstein, 2007, pp. 9–​10). For Weinstein, the key finding is that the presence of abundant resources (or foreign sponsorship) increases the likelihood that groups will be opportunistic and will use indiscriminate violence against civilians in several ways. First, abundant resources remove reliance on popular support and thus, diminish incentives for commanders to prevent and deter abuses against civilians. Second, it leads to armed groups attracting materially motivated members rather than ideologues, who will use violence and looting to enrich themselves. Third, as a result of the lack of connection with civilian populations and the abuses of opportunistic combatants, armed groups become ever more reliant on extreme violence as a means to control and extract information from non-​supportive populations. Weinstein’s analysis shifts focus from understanding violence as determined by a group’s aims to understanding it as predetermined by a group’s starting resources and “initial conditions” (Weinstein, 2007, p. 101). Fundamentally, atrocity crimes are the “unintended consequence of organizational strategy”—​a strategy dictated by resource abundance (Weinstein, 2007, p. 301). Weinstein’s study represents an important departure from much prior scholarship by providing an explicit focus on atrocity crimes rather than conflict and violence more generally. In taking a comparative micro-​level focus, incorporating both qualitative and quantitative analysis, it overcomes many of the limitations that pervade work on scarcity and abundance. Nevertheless, Weinstein’s argument has been challenged on its empirical basis and, like Collier’s, criticized for excluding state violence. Kalyvas argues that Weinstein’s analysis is fundamentally unable to account for state-​related variables and evades questions about why modern professional militaries—​in which soldiers receive pecuniary benefits—​ are not highly prone to indiscipline and mass abuses (Kalyvas, 2007, p. 1147). Furthermore, citing examples from Lebanon and Mozambique, where massacres could not be readily attributable to indiscipline resulting from resource abundance, and noting other cases where resource-​poor groups (such as Uganda’s Lord’s Resistance Army) are highly abusive, Kalyvas notes that “evidence that does not fit theory is sometimes overlooked” (Kalyvas, 2007, p. 1149). Thaler, in his study of violence in Angola and Mozambique, finds that Weinstein fails to reflect the degree to which ideals may hold greater allure for rebels than material gain, and how ideology may shape violent practices (Thaler, 2012, p. 548). Weinstein’s conceptualization of atrocity crimes as an “unintended consequence” of rebel group’s organizational strategies also leaves some important explanatory gaps. The contention that violence against civilians may not be counterproductive to war aims, and so may be tolerated in a “culture of impunity,” does not in itself tell us why this violence occurs (Weinstein, 2007, p. 250). If we are to assume that a default to violent behavior is automatic in situations where restraints do not exist, Weinstein has essentially returned us to the Hobbesian argument articulated by New Barbarism (Kalyvas, 2007, p. 1146). However, Weinstein goes further in arguing that “looting, destruction, and indiscriminate killing” result from the opportunistic orientation of those who join groups to get rich quick (Weinstein, 2007, pp. 204–​205). In this respect, Weinstein follows a common tendency in the conflict literature to attribute atrocity crimes that appear unrelated to group strategies or political goals to the “criminal” character of perpetrators (Abdullah, 1998; Reno, 1998,

174   Kieran Mitton p. 54; Mueller, 2000, pp. 42–​43; Gberie, 2005; Kalyvas, 2006, p. 57). This essentialist and deterministic view of individual behavior fails to account for the substantial number of non-​criminal or materially motivated perpetrators of atrocity crimes in so-​called resource wars (see for example, Ellis, 1999, p. 134; Mitton, 2015, pp. 83–​90). This suggests that, although Weinstein’s and similar studies (see for example, Beardsley and McQuinn, 2009) provide more detail on differences between rebel group behavior than has previous work, scholarship should move beyond simple “opportunistic” and “activist” typologies to better reflect groups’ internal heterogeneity and avoid replicating the false dichotomy of “greed” and “grievance.”

3.3. Genocide and mass killings Beyond the study of civil wars, various scholars have articulated typologies of genocide that include “utilitarian” mass killings aimed at acquiring land and monopolizing economic resources. These forms of genocide have been particularly associated with the mass violence of European colonizers, for example during the British expansion into the Americas, or in more recent violence against indigenous groups, for example in Brazil (Dadrian, 1975; Horowitz, 1976; Fein, 1984; Chalk and Jonassohn, 1995, p. 13; Kiernan, 2007; Moses, 2008; Schaller, 2010; Stewart, 2011, p. 20). Various large-​N studies have also explored the macro-​ level relationship between resource abundance and mass killings and genocides (Hoeffler, 2016). Querido’s study (2009) of mass violence against civilians by African states finds that risks of atrocities correlate with crude oil production and alluvial diamond deposits. Esteban and colleagues (2015) likewise find that mass killings are most likely in countries with identifiable group cleavages and large amounts of natural resource rents, with risks significantly higher where oil, gas, and diamonds are abundant. The smaller and wealthier an ethnic group, the likelier they are to be targeted. They theorize this relationship in terms of perpetrator motivations to reduce the population size of an opponent group through extermination (or exile), leaving a larger share of future material surplus for the perpetrator group (Esteban et al., 2015, p. 1089). The more natural resources present, the authors argue, the lower the damage created by reduction of the labor force through mass killing (Esteban et al., 2015, pp. 1089–​1090). However, in their reliance on macro-​level data, such studies are beset by many of the same challenges encountered by the “greed” literature. Speculative causal relationships based on correlations lack substantial depth in empirical support. Hoeffler, in surveying the sparse economics literature on mass violence, genocide, and resources, observes that “very few large-​N studies consider problems of autocorrelation, endogeneity, and simultaneity” (Hoeffler, 2016, p. 234). Studies suggesting links between land-​grabbing, colonial conquest, and genocide and mass killings find broad support in the literature (Schaller, 2010). Beyond this scholarship, findings on abundance explanations for genocide and mass killing remain tentative, particularly in regard to contexts of war in which genocide typically occurs (Krain, 1997; Harff, 2003; Straus, 2012). The literature on natural resources and genocide remains dominated by scarcity arguments (Levene, 2010; Zimmerer, 2014), while the wider surveys on mass violence and genocide do not find natural resources to be a significant factor in the strategic (Shaw, 2003, 2007; Midlarsky, 2005; Valentino et al., 2004; Ulfelder and Valentino, 2008) or ideological (Harff, 2003; Weitz, 2003) origins of violence (Straus, 2012, p. 547).

Natural Resources and Atrocities    175

4.  The Natural Environment and Atrocity Crimes: Future Research The diverse scholarship on the natural environment and violence has evolved substantially over recent decades. Early debates over the role of resource scarcity or abundance in producing instability, war, and genocide laid the groundwork for an increasingly sophisticated and wide-​ranging body of work taking place across multiple academic disciplines. However, the overwhelming focus of much of this scholarship has been on the causes and dynamics of conflict, and there is need and potential for much greater investigation of the specific relationship of natural resources to atrocity crimes. This chapter has identified at least two areas in which future research may seek progress. First, scholarship has yet to escape the tendency of translating disciplinary and methodological differences into siloed rather than collaborative analysis. Whether in debates over scarcity (see Homer-​Dixon et al., 2003), “greed and grievance” (see Keen, 2012), or climate change (see Selby, 2014), tensions and mutual skepticism between quantitative and qualitative work is pronounced. While methodological critiques are essential to good scholarship (Cuvelier et al., 2013, p. 16), a result is that opportunities for collective gain are often missed (Solow, 2013; Ide, 2018, p. 350). Promising recent scholarship suggests that constructive efforts to coordinate and reflect upon research across disciplines and methods can yield useful insights through combining the comparative strengths of specialist fields (Ide, 2017; Le Billon and Duffy, 2018). Rationalist frameworks for understanding perpetrator behavior have produced valuable work, but in common with genocide studies, civil war scholarship can be enriched by greater inclusion of work on the psychological and affective (or emotional) dimensions of violence (Cramer, 2002; McDoom, 2012; Mitton, 2015). Greater interaction between fields studying civil war violence and genocide may also lead to progress in refining research on the role of the natural environment in atrocity crimes. Straus observes that “genocide studies has been strangely and unproductively cloistered from the study of other forms of political violence” (Straus, 2012, p. 545). This is especially important to address given the strong links between genocide and war contexts (Harff, 2003; Straus, 2012, p. 546). Second, this chapter has shown that scholarship on the links between violence and natural resources, whether through abundance or scarcity, often fails to sufficiently explore or account for the causal mechanisms behind atrocity crimes. This can be related to tendencies to focus on causes of conflict rather than violence in its own right, to approach violence at a removed, macro-​level, and to rely on correlations in statistical data to support contested causal assumptions. Future research should seek to elaborate on the interaction of resource dynamics with other factors shaping violence, and by so doing, more clearly articulate how theories concerning horizontal inequalities, for example, can better elucidate the causes, scale, intensity, and forms of atrocity crime linked to the natural environment. Addressing these items will greatly improve the prospects of success for scholars seeking better understanding of, and solutions to, two challenges likely to dominate the future of research on the environment and atrocity crimes: climate change and urbanization. These may represent unprecedented challenges in the 21st century due to their scale and projected rate of increase; as an increasingly urban global population seeks to contend with a range of potential direct and indirect environmental shocks, the Malthusian debate will inevitably return

176   Kieran Mitton to center stage (see for example Levene, 2010; Zimmerer, 2014). New bodies of research on climate security and urban fragility have emerged in recent years. As they develop, the need for rigorous, multi-​scalar, and multidisciplinary research on atrocity crimes will be paramount.

5.  Conclusion This chapter has surveyed two broad and diverse approaches to exploring the relationship between the natural environment and atrocity crimes: those focused on resource scarcity, and those focused on resource abundance. Both bodies of research have provided increasingly sophisticated insights into the ways in which natural resources and the environment may shape violence, and have sparked vigorous debate among scholars as to when, where, and how—​if at all—​a relationship between resources and atrocity crimes exists. That debate has focused attention on the strengths and limits of contrasting quantitative and qualitative research methods across disciplines, and highlighted the importance of truly multidimensional analyses that place economic and material conditions within historical, political, and social context. As scholars increasingly turn to the study of urbanization and climate change and their potential relationship to atrocity crimes, the need to locate collaborative and complimentary forms of research that transcend methodological and disciplinary boundaries will be paramount.

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CHAPTER 8

De mo cracies, Di c tatoria l Re gimes, and At ro c i t i e s Maartje Weerdesteijn 1.  Introduction In 2019, the Freedom House index indicated that for the 13th consecutive year democracy was in decline across the world, and that 37 percent of the world population is currently living in countries that were labeled as “not free.” Perhaps even more troubling, the NGO also noted that existing authoritarian regimes seem to have cracked down harder on any political opposition, violating human rights in the process.1 Given the latter observation, it is not surprising that dictatorships are generally seen in a negative light. While this has not always been the case (Linz, 2000, p. 61), nowadays dictatorial regimes are frequently associated with widespread repression, economic hardship, and even mass atrocities. Yet the exact relationship between the level of democracy of a country, and the extent to which mass atrocities are perpetrated, remains highly debated, with some scholars arguing that “power kills and absolute power kills absolutely” (e.g., Rummel, 1994, p. 1), and others finding that there is “more murder in the middle,” meaning that mainly countries transitioning to democracy are at risk of mass atrocities being perpetrated (e.g., Fein, 1995). In addition, the reasons why non-​democratic regimes are more likely to perpetrate mass atrocities remain understudied. Most of the quantitative research takes a rational choice decision-​making perspective (Hill and Jones, 2014, p. 663) in which regimes are said to weigh the costs and benefits of different measures that are meant to secure their hold on power. Most of the qualitative research looks at broader facets of the interaction between the regime and its population, often moving beyond a clear focus on mass atrocities (e.g., Fromm, 1942; Hoffer, 1951; Post, 2004; Padilla et al., 2007; Moghaddam, 2013). Davenport and Inman (2012), therefore, suggest that in order to move the field further, it is important to combine the knowledge of both qualitative and quantitative strands of research. That blending of research is exactly what this chapter aims to do. It will shed light on how 1 

Freedom House (2019) “Democracy in Retreat: Freedom in the World 2019.” Freedom House, available at: https://​freedomhouse.org/​report/​freedom-​world/​freedom-​world-​2019 (Accessed: 1 June 2019).

188   Maartje Weerdesteijn dictatorship and democracy is defined in both qualitative and quantitative literature and will survey the reasons why most scholars believe consolidated democracies2 to be less violent. Furthermore, the chapter will argue that in order to fully comprehend the relationship between the nature of the regime and the extent to which human rights are violated,3 it is not enough only to analyze the nexus between mass atrocities and the state’s dictatorial or democratic features. Rather, it is equally important to analyze how dictators relate to the other risk factors for mass atrocities that have been identified, such as economic and political crises, war, a plural society, and a history of violence. Part of the difficulty of reaching an overarching conclusion is that much of the research is difficult to compare. Many scholars have their own definitions of the human rights violations they investigate, and since much of the literature on the topic stems from political science, it tends to avoid the more legalistic terms that are used in international criminal law and criminology, such as international crimes or atrocity crimes. This chapter will delineate some of the key terms and definitions of the various crimes and human rights violations that different authors have developed, sketching how the terminology overlaps or deviates from the core focus of this book, namely, mass atrocities and atrocity crimes. Throughout the chapter, however, when referring back to existing literature, I will primarily use the terms as they were used by the original authors, allowing the reader to assess the extent to which this research contributes to understanding mass atrocities. This chapter will then provide an overview of the scholarly debate surrounding the relationship between regime type and the likelihood that mass atrocities are perpetrated, and will end by theorizing the reasons why dictatorial regimes seem to be more likely to perpetrate mass atrocities, incorporating the other risk factors in the analysis as well.

2.  Democracies, Dictatorships, and Atrocity Crimes Debates on the definition of dictatorial regimes (Richter, 2005, 2007; Kalyvas, 2007; Turchetti, 2008; Liden, 2014), democracies (Donnelly, 1999; Dahl, 2000; Diamond, 2003), and debates on the definition and scope of the violations they perpetrate, abound. Because these diverging definitions complicate any thorough analysis of the relationship between

2  According to Gorokhovskaia (2017, n.p.), “A democracy becomes consolidated—​that is, it is expected to endure—​when political actors accept the legitimacy of democracy and no actor seeks to act outside democratic institutions for both normative and self-​interested reasons.” 3  Many human rights violations may amount to mass atrocities, but not necessarily all of them do. Given the complications the many definitions of violent acts and their labels pose for analyzing the link between regime type and mass atrocities in general, it is nearly impossible to derive conclusions from literature about the impact of regime type on each of the atrocity crimes, e.g., genocide, crimes against humanity, and war crimes. As terrorism is often not seen as one of the core crimes, I will not refer explicitly to research investigating the relationship between regime type and terrorism (although some literature is included which mentions state terror). For more information on regime type and terrorism see e.g., Kingma et al. (2015) and Gaibulloev et al. (2017).

Democracies, Dictatorial Regimes, and Atrocities    189 regime type and mass atrocities, I will discuss each in turn, starting with the definitions of the crimes these regimes perpetrate.

2.1. The crimes The terms used by various social scientists and legal scholars to denote violations of human rights vary and signify different levels of gravity. Some refer to “genocide,” or the broader terms “politicide” and “democide” (Rummel, 1994; Harff, 2003), while others focus on “repression,” which encompasses a wide variety of human rights violations, including many violations which are much less severe (Davenport and Inman 2012, p. 620). In order to analyze the comparability of this body of literature, it is important to analyze the definitions more in depth. Starting with the graver definitions, attention will be paid to both the qualitative descriptive definitions as well as the numerical definitions, often used to guide quantitative literature. Genocide is legally defined in the 1948 Genocide Convention,4 and its definition is rather restrictive, encompassing only those situations where there is the intent to destroy (part of) a national, ethnical, racial, or religious group.5 Because genocide excludes per definition political groups that are targeted, the term “politicide” was developed to incorporate a wider array of groups that can potentially be targeted, and several scholars have favored their combined use (Rummel, 1994, Krain, 1997; 2000; Harff, 2003). Rummel (1995, p. 4) explains this rationale by stating that genocide “hardly covers the variety and extent of ruthless murder carried out by governments.” He tried to capture all these forms of violence conceptually by using the word “democide,” which, according to Rummel, encompasses both genocide as well as politicide. More specifically, Rummel holds that democide entails (1995, p. 4) The intentional killing of people by government. It excludes the killing of those with weapons in their hands or those indirectly killed as a result of military action; it excludes judicial executions for what are normally considered capital crimes, such as murder and treason (unless such are clearly excuses for the executions, as the Stalin show trials in the 1930s).

Krain prefers using the overarching term “state sponsored mass murder” to denote violence that would constitute either genocide or politicide (e.g., Krain, 1997, 2000).6 Another common term often used by political scientists is “mass killings” (Staub and Bar-​Tal, 2003; Mukherjee and Koren, 2019). In order to distinguish it from genocide, Staub and Bar-​Tal (2003, p. 713) hold that mass killings lack the intent to destroy the group as such but is rather done to intimidate or dominate the group. Mukherjee and Koren’s (2019, 4  Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention). 5  For the full definition see article 2 of the Genocide Convention. See also Chapter 1 of this volume by Jeremy Kuperberg and John Hagan. Other scholars tend to use a more comprehensive definition of genocide; for an overview see Jones (2006, pp. 15–​23). 6  Politicide, according to Krain (2000, p. 41), encompasses “mass killings in which victims are defined primarily in terms of their hierarchical position or political opposition to the regime and dominant groups.”

190   Maartje Weerdesteijn p. 5) definition of mass killings, in contrast, is quite similar to politicide, as they define these crimes as “situations where the regime intentionally kills a large number of noncombatants for political reasons.” Kreutz (2006, p. 180) favors the term “government one-​sided violence,” using the Uppsala Conflict Data Program. He seeks to avoid using high fatality thresholds that other scholars have used,7 with the aim of being more comprehensive and incorporating all instances where the government kills civilians, as long as they tally 25 deaths per year. Similarly, Mukherjee and Koren (2019, p. 6) focus on rather low death tolls as they aim to analyze local dynamics and, therefore, decided to cover incidents of at least 50 noncombatants. An even broader term which is frequently evoked is that of “life integrity violations,” stemming from human rights law discourse. Zanger (2000, p. 214) explains that life integrity violations include “state-​sponsored torture, extrajudicial killing, political imprisonment, and disappearance.” The same concept has also been referred to as a “violation of physical integrity rights” (Zanger, 2000, p. 214). Fein is more specific, pointing at a fourfold categorization where “the biological and social integrity of persons and groups” is violated (Fein, 1995, p. 171). These are violations of: A) the integrity of mind and body (denied by genocide, murder, torture, and terror); B) of being the owner of one’s labor and being able to move (denied by slavery, segregation, and apartheid); C) the integrity of self and family which creates progeny (denied by prohibiting marriage and family development); and D) of the reciprocal guarantees for the protection of human groups (denied by genocide) (Fein, 1995, p. 171).

Fein, in her research, however, only focused on the first category, which encompasses among others the right to life and to be free from arbitrary seizure or detention. The research into repression investigates an even wider array of acts, encompassing the violation of civil liberties as well as human rights (Regan and Henderson, 2002, p. 120). Davenport and Inman (2012, p. 620) describe repression as the [A]‌ctual or threatened use of physical sanctions against an individual or organization, within the territorial jurisdiction of the state, for the purpose of imposing a cost on the target as well as deterring specific activities and/​or beliefs perceived to be challenging to government personnel, practices or institutions.

However, there continues to be some disagreement among scholars about this particular concept, with some authors having a much broader definition than the one just mentioned, exceptionally even including violence perpetrated by non-​state actors (Earl, 2011, p. 262).8 Some of these conceptual incongruences stem from the various scholarly traditions, and sub-​fields, in which these debates have developed. Overall, mass atrocities, international crimes, and state terror seem to denote more serious violations of human rights than

7  Other scholars have tended to use much higher thresholds. Valentino (2000, p. 5) for instance relies on a definition of “50,000 intentional deaths over the course of five years.” 8  This is potentially even more problematic because there is reason to believe the relationship between human rights and regime type differs for different forms of repression. Hill and Jones (2014, p. 662), for instance, argue that the democratic nature of a regime can explain the extent to which human rights are violated, but that this explains particular types of repression better than others.

Democracies, Dictatorial Regimes, and Atrocities    191 repression or life integrity violations. However, since the above-​mentioned concepts tend to be very broad, there is a large amount of overlap among the frequently used concepts (Fein, 1995, p. 170; Zanger, 2000, p. 214).9 Many of the human rights violations discussed in these various works will amount to atrocity crimes and will constitute either war crimes, crimes against humanity, or genocide. However, some violations, especially in the research focusing on life integrity violations and repression, might not amount to one of the core crimes when they entail isolated incidents, are not perpetrated in a widespread or systematic manner, or occur outside of the context of war. Nevertheless, because the overlap between these categories seems to be significant, the present chapter will incorporate the literature that includes all these various definitions to try to distil the common ground among their findings. It should be noted, however, that it is pertinent that scholars from various academic disciplines find a common language that allows research findings to be more easily comparable and facilitates knowledge being shared across disciplinary boundaries.10

2.2. Democracies and dictatorships There are currently so many different terms to denote democracies, dictatorships, and regimes falling somewhere in between, that some scholars have warned against the emergence of a “terminological babel” (Bogaards, 2009, p. 415). While many scholars use the different terms as synonyms, with some being favored over others at different points in time, the concepts potentially denote subtle differences, which is why the most prominent terms and types of (non-​)democratic regimes will be discussed in more depth. The term “democracy” comes from the Greek word demokratia, which is composed of the words for people (demos) and rule or power (kratos) (Donnelly, 1999, p. 615). Throughout much of its history, the concept denoted the struggle that results from competing interests among different social classes, which meant it was not necessarily looked upon positively (Donnelly, 1999, p. 616; Diamond, 2003, p. 29). As Donnelly (1999, p. 616) explains, “only during the past two centuries have liberal, socialist, and anti-​colonial struggles transformed dominant conceptions of ‘the people,’ and thus delegitimized non-​democratic rule.”11 Quite the opposite holds true for the concept of dictatorship. While today it is usually associated with great misery, the concept originally did not have a negative connotation (Linz, 2000, p. 61). Its origins can be traced back to Roman times, when dictatorship was a constitutional provision that allowed a ruler to take charge, for a maximum of six months, when there was a crisis and order needed to be restored (Kalyvas, 2007, p. 416).12 The first known

9  Some authors, e.g., Hill and Jones (2014), equate life integrity violations (which they call physical integrity rights) with repression, while others (e.g., Carey, 2010, p. 168) equate state terror—​which she defines as the “large scale and widespread violation of life-​integrity rights”—​with repression. 10  For an overview of the tensions that emerge when equating human rights violations, genocide, and repression as well as a discussion of the opportunities if the fields would merge more, see Earl (2011). 11  While much of the literature focuses predominantly on the development of the terms in Western discourse, it should be noted that democratic practices also have a long tradition on the African continent, see e.g., Ayittey (2011, pp. 37–​60) 12 It has been mentioned, however, that appointing a dictator generated fear among the people (Kalyvas, 2007, pp. 415–​416).

192   Maartje Weerdesteijn rulers to have abused this provision were Caesar and Sulla, tarnishing the positive connotation the concept had enjoyed (Kalyvas, 2007, p. 413). Consequently, the term “dictatorship” became increasingly associated with the term “tyranny,” which always carried a much more negative undertone (Kalyvas, 2007, pp. 413–​414; Turchetti, 2008, p. 163). Whenever scholars used the word “tyranny,” they considered it to be illegal and violent. The tyrant sought to attain power illegitimately and acted to advance his own interest at the expense of the common good (Richter, 2005, p. 224; Kalyvas, 2007, p. 416). As such, it was a much more permanent condition in which the regime fell victim to a malicious leader (Kalyvas, 2007, p. 417; Richter, 2007, p. 12). Because of the importance attached to the individual leader, the idea of tyrannicide—​killing the tyrant—​emerged to remedy his abusive rule (Richter, 2005, p. 224; 2007, p. 12). Throughout the Middle Ages, Renaissance, and Reformation, “tyranny” was the favored term to denote abusive rule (Richter, 2007, p. 13). However, from the eighteenth century onward, “despotism” started to become more popular (Richter, 2007, p. 16; Turchetti, 2008, p. 163; p. 172). The term was used to signify a system of rule that outlasted its individual ruler (Richter, 2007, p. 16). Originally, the term was used to typify a system of rule where the subjects had willingly, due to culture and tradition, subjugated themselves to the despot (Richter, 2005, pp. 228–​229; Turchetti, 2008, p. 166). In sum, while many scholars will use “despot” or “tyrant” as synonymous to a dictator, the terms have a different origin and as such a slightly different meaning. “Autocracy” can, furthermore, be added as a contemporary term denoting non-​ democratic rule. According to Tullock (1987, p. 1), autocracy as a concept is distinguishable from dictatorship by including hereditary forms of non-​democratic rule, such as kingdoms, in its definitions while these are sometimes seen to lie outside of the scope of dictatorships. Other 20th-​century terms, like “authoritarian” and “totalitarian” regimes, rather stem from different typologies that have emerged to distinguish among dictatorial regimes (see e.g., Linz, 2000). The distinction emerged mostly in response to the non-​democratic regimes that were influential during the World War II; Nazi Germany, Stalinist Russia, and Italy under Mussolini (Tucker, 1965, p. 555). These totalitarian regimes were viewed as “historically novel,” and a debate emerged on the characteristics of the concept itself (Arendt, 1962; Friedrich and Brezinki, 1963, p. 23; Linz, 2000).13 In quantitative analyses, the Polity IV database is influential. The database goes beyond the binary distinction between democracy and autocracy and instead captures an “authority spectrum on a 21-​point scale ranging from -​10 (hereditary monarchy) to +10 (consolidated democracy),”14 and suggests a threefold distinction can be made among autocracies, anocracies, and democracies. It does so based on “six component measures that record key qualities of executive recruitment, constraints on executive authority and political competition”.15 Another influential database is the aforementioned Freedom House index, which also places regimes in three separate categories, namely; Free, Partly Free, Not Free. Freedom House scores the countries from 0 to 4 points on the basis of political

13  For a more elaborate discussion on the different types of non-​democratic regimes see Weerdesteijn (2017). 14  Polity IV (n.d.) The Polity Project. Available at: http://​www.systemicpeace.org/​polityproject.html (Accessed: 20 August 2019) (Polity Project). 15  Polity Project.

Democracies, Dictatorial Regimes, and Atrocities    193 rights and civil liberties indicators.16 The autocratic regimes database of Geddes, Wright, and Frantz (2014) is unique because it is designed to analyze regime transitions, separating different types of autocratic regimes; party, military, personal, and monarchy (Geddes et al., 2012, p. 5). Also among democracies, various types and degrees to which democracy is consolidated have been distinguished. An important distinction is, for instance, made between procedural or electoral democracy and liberal democracy. The latter is particularly important when analyzing its relationship with human rights (Donnelly, 1999). The procedural variant, or electoral democracy, does little to facilitate the protection of human rights (Diamond, 2003, p. 30; Donnelly, 1999). In fact, as Donnelly points out, constitutional review is there to limit the will of the people in order to protect the basic rights that are enshrined in the constitution (Donnelly, 1999, p. 620). There is, arguably, a more direct link between “liberal democracy” and the protection of human rights. Definitions of liberal democracy focus on the protection of the rights of citizens, the rule of law, accountability, and pluralism (Zakaria, 1997, p. 22; Donnelly, 1999, p. 620; Diamond, 2003, pp. 29, 34–​35). The idea that democracy and systematic human rights violations may go hand in hand was central to the conception of illiberal democracies, which Zakaria (1997, p. 22) explained are “democratically elected regimes . . . [which] are routinely ignoring constitutional limits on their power and depriving their citizens of basic rights and freedoms.” “Illiberal democracy” is one of the many terms used to describe different forms of hybrid regimes which are neither fully democratic nor fully dictatorial (Bogaards, 2009, p. 399). Bogaards (2009) argues that literature generally tends to characterize these regimes either as flawed democracies or as weak authoritarian regimes. Given this more recent work that highlights the gradual distinctions among regimes, the dichotomy between democratic and dictatorial should be considered a false one. Regimes are perhaps better conceptualized as lying somewhere on a spectrum, with ideal typical democracies and dictatorships at either end. Within this spectrum, there is tremendous variety in the extent to which these regimes perpetrate atrocities. The relationship between regime type and the extent to which a regime perpetrates atrocities is a complex one. Analyzing this relationship is particularly complicated because respect for human rights is inherent in some of the definitions of the regime types themselves. As explained, some versions of the definition of a non-​democratic regime (tyranny in particular) involve, per definition, the violation of human rights while some versions of democracy, such as “liberal democracy,” have the protection of rights built into its definition. This makes the influence of the regime type on the perpetration of crimes impossible to disentangle. For the large body of (mostly quantitative) empirical research that seeks to investigate the relationship between the democratic nature of a regime and the extent to which it violates human rights (which will be discussed in depth later), this definitional overlap is obviously challenging. Hill and Jones (2014, p. 663) argue in this respect that it is problematic that definitions of democracy often encompass “the extent to which the government tolerates competing policy preferences” while repression is partly operationalized as the use of coercion by the government against political opponents (Hill and Jones, 2014, p. 663). Consequently, there is a relationship, by design, between repression,

16  Freedom House (n.d.) Methodology. Available at: https://​freedomhouse.org/​report/​methodology-​ freedom-​world-​2018 (Accessed: July 26, 2019) Freedom House.

194   Maartje Weerdesteijn including human rights violations, and democracy; making democratic regimes per definition less prone to repress opposition. According to Hill and Jones (2014, p. 677), “this means that one of the strongest results in the literature is partially the result of estimating what are essentially tautological statistical models.” While not all research suffers from this caveat, and recent research even tries to distil which elements of democracy have a positive effect on the respect for human rights (Bueno de Mesquita et al., 2005; Hill and Jones, 2014), the review that follows should be read with this limitation in mind.

3.  State of the Art of the Current Debate The last thirty years have seen an upsurge in quantitative studies that investigate why some governments violate basic human rights more than others (Hill and Jones, 2014), and a large number of them emphasized the influence of regime type in explaining the violence. This quantitative strand of research that investigated the relationship between regime type and human rights violations started to gain momentum in the mid-​1990s with research from Poe and Tate (1994)17 and Rummel (1994). Poe and Tate sought to explain why human rights violations were more prevalent in some countries in comparison to others and found that, among others, democracy was an important factor in explaining the extent to which personal integrity rights are violated (Poe and Tate, 1994; Poe et al., 1999). Focusing on democide, Rummel (1994, p. 5) reaches a similar conclusion and argues that more democratic countries perpetrate less democide, and when they do, they start behaving more like dictatorial states, acting mostly in secret to circumvent checks and balances. In contrast to Rummel, Fein (1995) argues there is actually “more murder in the middle,” meaning that there are more life integrity violations when some steps to democracy have been taken but it is not yet fully institutionalized. While both unfree as well as partly free states have poor track records when it comes to life integrity violations, she finds the worst violators tend to be partly free states (Fein, 1995, p. 184). Kreutz (2006, p. 182) similarly found that one-​sided violence occurs more often in partly free states. While Regan and Henderson (2002) focused on repression, they also found that there is an inverted U-​shape relationship, indicating intermediate levels of democracy have the most political repression, but argue that the threat level experienced by a government has more explanatory value than the type of regime. Not all forms of dissent will likely lead to equal amounts of threat perception by states, and subsequent research has shown that only guerrilla attacks increase the risk of repression and state terror (Carey, 2010, p. 182). While guerrilla attacks increase the probability that repressive measures will be used for all regime types, established democracies seem to be least likely to engage in a violent response, while semi-​democracies are more likely to repress (Carey, 2010, p. 182). There is less of a focus on the perpetration of mass atrocities18 by non-​state actors in democratic and dictatorial regimes, but there are indications that consolidated democracies are more vulnerable to this type of violence than consolidated dictatorships. However, it

17 

18 

This research was later updated (Poe et al., 1999). Or one-​sided violence, as Kreutz (2006) calls it.

Democracies, Dictatorial Regimes, and Atrocities    195 seems that, again, these attacks are most prevalent in states that lie in the middle of this spectrum (Kreutz, 2006, p. 184).19 While the exact reasons why this is so remain uncertain, Kreutz suggests non-​state actors might believe that there is a small chance they will be held accountable in states that are neither fully democratic nor fully autocratic (Kreutz, 2006, p. 184). Davenport and Armstrong (2004) have clarified the debate on whether there is a non-​ linear relationship between regime type and government repression and human rights violations. They showed that below a certain level of democracy, there is no mitigating effect of democracy on political repression, while above this point, repression decreases as democracy increases. In a more dynamic model, Davenport (1999) also analyzed the effect of changes in the regime type on the amount of repression that is used and came to the conclusion that autocratization is likely to increase the level of repression, and that this change lasts for several years, until the dictatorial regime is consolidated.20 However, it was not the change in itself that led to repression, because he found repression waned when the regime became more democratic (Davenport, 1999, pp. 108–​109). Zanger (2000) similarly found that when a dictatorship transitions to a democracy, human rights abuses already decrease the same year in which the transition takes place. When a stable democracy moves more toward becoming a mixed regime with dictatorial characteristics, human rights violations increase in the year in which the transition takes place. After dictatorial rule has been consolidated, however, the level of life integrity violations decreases again. There is also reason to believe, however, that democracies have a dark side and that modern democracies may be particularly prone to perpetrate atrocities (Mann, 2004).21 When rule by the people comes to signify rule by a particular ethnic group, “the majority might tyrannize minorities,” as was argued by Mann (2004, p. 4). This proposition, however, is criticized by some (Laitin, 2005, p. 329) because, upon a closer reading, the way Mann formulates his main argument is somewhat misleading; it is not democracy itself, but the process of democratization and the perversion of democratic ideals that lead to mass atrocities. As such, Mann’s seminal work is actually much closer to the empirical findings that in semi-​democratic states, mass atrocities occur relatively frequently in comparison to other types of regimes. To sum up, the overall conclusion seems to be that stable democracies are safest.22 As Davenport and Inman (2012, p. 622) explain, “[t]‌he findings are consistent that to a greater or lesser extent at certain levels, all democratic political institutions that have been examined rigorously decrease state repression. This result holds across time, space and

19  Although, as is explained later, the picture changes slightly when the state is at war (see Kreutz, 2006, 185). 20  In addition, different types of dictatorial regimes are linked to varying degrees of repression with single-​party regimes being the least repressive (Davenport, 2007). 21  Mann focuses explicitly on ethnic cleansing (2004). 22  The literature discussed in this paragraph primarily focuses on human rights violations that are perpetrated within state borders. See section 5.1.2 later for a brief reflection on the extent to which democracies are willing to perpetrate violence outside their state’s borders. In addition, the reflection earlier mentioned is only focused on the human rights violations, potentially amounting to mass atrocities, as discussed in section 2.1., not about other harms to the population, such as those stemming from structural discrimination or poverty, for instance.

196   Maartje Weerdesteijn types of repressive behavior; indeed, it is so robust that it has been referred to as the ‘domestic democratic peace,’ mirroring the finding in international relations.”23 With the exception of Rummel, most of these scholars have, as explained previously, used measures of violence that do not necessarily amount to atrocity crimes. However, research that explicitly focuses on these more extreme violations of human rights has pointed in a similar direction (Harff, 2003, p. 63).

4.  Explaining Atrocity Crimes in Dictatorships and Democracies Much of the literature that focuses on repression in relation to the level of democracy looks at repression as a strategy for dealing with political opposition (e.g., Gartner and Regan, 1996). Krain argues that it is not the degree or concentration of power that best predicts such violence, but rather whether there are openings in the political opportunity structure (such as war) (Krain, 1997, pp. 332, 334). When accommodation or repression on a smaller scale does not suffice, elites, according to Krain (1997, p. 333), may resort to state-​sponsored mass murder to remove any threats to their regime that may be caused by such openings. Zanger (2000, p. 228) suggests that life integrity violations might decrease after dictatorial rule is consolidated, and that this is potentially due to the inclination of leaders to get rid of their opponents as soon as they are in power and that the need to violate life integrity rights dissipates once the regime is established. In addition, there are more official and legitimate routes available for voicing dissent in democracies which may avoid escalation into violence (Regan and Henderson, 2002, p. 121). The fact that there will be more pluralism and free speech, including dissenting voices to repressive policies as well, makes it less likely that harmful policies will evolve into genocide and mass killing (Staub and Bar-​Tal, 2003, p. 723). Much of the literature on the causes of repression in democracies and dictatorships assumes the costs of repression are simply higher in democracies than in dictatorships and is thus largely based on a rational-​choice decision-​theoretic model (Gartner and Regan, 1996, p. 273; Hill and Jones, 2014, p. 663;).24 According to Zanger (2000, p. 216), for instance, “the accepted norms of democracies, which emphasize the non-​violent solution of problems, and the institutional structures seem to prevent governments from utilizing terror as a policy tool.” In addition, the institutions that allow leaders to be held accountable for their actions provide an important incentive for them not to resort to violence and

23  It should be noted in this respect that Hill and Jones (2014, p. 661) argue “democratic political institutions predict certain kinds of repression much more accurately than others.” 24  While they do use a rational-​choice model that takes costs and benefits of repression into account, Gartner and Regan (1996, p. 278) posit that the costs of repression actually do not differ so much. According to these authors, “Highly democratic countries generally do not repress as much as less democratic varieties, not because the costs are different, but rather because the extent of the challenges to the status quo in highly democratic countries is generally insufficient to make the benefits of violent repression outweigh the costs.”

Democracies, Dictatorial Regimes, and Atrocities    197 repression (Zanger, 2000, p. 216; Regan and Henderson, 2002, p. 121). This can be because they will be less likely to be re-​elected (Kreutz, 2006, p. 177), but a number of scholars have also found constitutions and courts important as constraining factors on governments (for an overview, see Hill and Jones, 2014, p. 663). Davenport (1999, p. 96) also mentions accountability, but adds three additional reasons why democracies are less repressive. First, he notes that elites are socialized to use alternative means to regulate conflict, such as discussions and voting. Second, according to Davenport, coercive agents are less powerful and less capable of influencing policy in a direct manner. Third, within democracies, one group that wishes to impose its will unilaterally is usually stopped by others and these checks and balances also prevent the use of repression (Regan and Henderson, 2002, p. 121). In addition, according to Harff (2003, p. 63), democracies tend to protect minorities better and are more accommodating to political opposition. Furthermore, she argued that the electoral process makes it less likely for elites with an exclusionary ideology—​which is another important risk factor for genocides and politicides—​to get into power (Harff, 2003, p. 63).

5.  Incorporating Other Risk Factors for Atrocity Crimes into the Explanation Beyond the rational choice explanations offered earlier, there is another important reason why consolidated democracies seem to experience fewer mass atrocities. Here it will be argued that part of the explanation is the manner in which dictatorial regimes relate to the other risk factors that make the perpetration of mass atrocities more likely. Next to the non-​democratic nature of a regime, there are several risk factors that have consistently been associated with episodes of mass violence, both on a theoretical basis (e.g., Staub, 2000; Woolf and Hulsizer, 2005) and on the basis of empirical, quantitative research (e.g., Harff and Gurr, 1989; Fein, 1993; Harff, 2003). These include a history of violence and a plural society,25 especially when there is unrest due to political or economic crises or war (Harff and Gurr, 1989; Fein, 1993, Staub and Bar-​Tal, 2003; Harff, 2003Woolf and Hulsizer, 2005). The preconditions will be discussed in turn with an analysis of the manner in which dictators can use these preconditions to further their own policy interests, potentially orchestrating the perpetration of mass atrocities in the process.

5.1. Political and economic crises and war While sometimes in literature political and economic crises are discussed separately from war, they frequently go hand in hand and overlap. Economic and political factors may lead

25  According to Kuper (1981, p. 17), a plural or divided society is one in which “division persists between peoples of different race or ethnic group or religion, who have been brought together in the same political unit.”

198   Maartje Weerdesteijn to war, and war in turn may be detrimental to economic growth and political development (Nafziger and Auvinen, 2002; Staub and Bar-​Tal, 2003, p. 717). In addition, war and political crises are sometimes even seen as extensions of one another. As Shaw (2007, p. 466) explains, “it is when political conflicts become violent or military that genocide is most likely to result.”26 For these reasons, the present chapter will cover them as one overarching risk factor in which the two sub-​components—​political and economic crises and war—​interact.

5.1.1. Political and economic crises Political and economic crises taken together are what Staub and Bar-​Tal (2003, p. 714) call “difficult life conditions,” which they explain signifies “economic hardship, political tension and disorganization, and great and rapid social change that separately and especially in combination are potential starting points for processes that lead to mass violence.” It should be noted, however, that it is for a large part the way in which the population experiences the hardships that make mass atrocities more likely, and as such, it is more about crises and relative deprivation than absolute poverty (Woolf and Hulsizer, 2005, p. 104; Moghaddam, 2013, pp. 63–​64).27 However, it is not just the population that is impacted by these societal conditions: the leader is too, and he can use this knowledge to his own benefit. As Staub explains (2010, p. 174), “both their awareness of what is happening to the population and the shared experience enables leaders to speak to people’s concerns and psychological needs.” This might enable the leaders to consolidate power and stave off any threats to their regime, as the population will gravitate more toward powerful individuals who profess ideological certainty when they feel like their livelihoods or collective identity are threatened (Moghaddam, 2013, pp. 61–​72).28 There is thus an interplay between the dictatorial leader, the environment, and his following (Weerdesteijn, 2017, p. 63). Because of difficult life conditions, individuals will struggle to meet their basic human needs, such as a sense of security and a positive identity for the individual and for the group an individual identifies with (Staub and Bar-​Tal, 2003, p. 715). In addition, people have a need to understand the world around them and they may have spiritual needs, the need to have a sense of meaning in their lives (Staub and Bar-​Tal, 2003, p. 715). The frustration of these needs leads to processes that may facilitate mass violence. Individuals may start to identify more strongly with a particular group, and correspondingly scapegoat the out-​ group. Ultimately, they may start to make sense of the world through a destructive ideology (Staub, 2000, p. 370; and Bar-​Tal, 2003, pp. 718–​7 19). In addition, groups who experience these difficulties are more likely to be drawn to leaders who advocate destructive solutions to these problems (Staub and Bar-​Tal, 2003, p. 724; Moghaddam, 2013, pp. 60–​65).

26  Shaw consistently speaks of genocide but seems to adopt a broad definition, also including other mass atrocities such as ethnic cleansing and even terrorism (2007, pp. 468–​470). 27  Although, high inequality within a society is more likely to lead to mass atrocities. According to Fein (1995, p. 184), “state killing increases in less developed states with high inequality because inequality incites more social conflict.” 28  Slobodan Milosevic for instance seems to have consolidated his power by instrumentally using nationalism to garner support among the population and certain segments of the elite. See Weerdesteijn (2017) for a more elaborate analysis.

Democracies, Dictatorial Regimes, and Atrocities    199 In an analysis that combines qualitative and quantitative research methods, Mukherjee and Koren (2019) argue that food crises can motivate people to mobilize against a repressive regime, prompting the latter to strike back and engage in mass killings. Dictators may thus wish to stave off threats to their regime through repression and direct violence, but they may also decide to withhold food from disobedient parts of the population, starving them into submission (Nafziger and Auvinen, 2002, p. 154). Nafziger and Auvinen therefore conclude (2002, p. 154), “the policies of governing elite are at the root of most humanitarian emergencies.” In dictatorships particularly, the elite can create these crises, can aggravate them, or can use them to stay in power (Ayittey, 2011, pp. 18–​19). In addition, they can also seize the moment and the sense of relative deprivation and dissatisfaction among the population to rise to power and pave the way for the perpetration of atrocity crimes. As Staub and Bar-​Tal (2003, p. 716) point out, Instigators can give rise to social psychological processes in groups of people and to the evolution of societal beliefs that help fulfil basic needs but at the same time move the group toward turning against another group or, when there is already group conflict, intensify antagonism (emphasis added).

The extent to which these processes actually happen in dictatorial regimes depends a lot on the individual leader. While crises are relatively common, fortunately mass atrocities are relatively rare, and they will only materialize when a justification and rationale for the violence is created (Chirot and McCauley, 2010, p. 67). Countries with relatively similar risk factors may experience entirely different levels of violence in their societies, and this likely depends to a large extent on the different strategies of the leaders involved (McLoughlin and Weerdesteijn, 2016).

5.1.2. War Much of the quantitative research supports the theoretical proposition that war makes atrocity crimes more likely. Hill and Jones (2014, p. 662), for instance, argue that while the extent to which a regime can be classified as democratic offers some explanatory value for the amount of repression which is perpetrated, the presence of civil conflict is a much better predictor for these repressive measures.29 In a theoretical reflection, Shaw (2007, p. 461) even argues that the “problems of genocide and war are so intimately linked that we need to see them in a common frame.” He notes both are about a destructive process with genocide meant to destroy a specific group of people and war meant to destroy the enemy (Shaw, 2007, p. 464). In addition, both are brutalizing forces, for the soldiers involved but also certainly for the wider population (Alvarez, 2001, p. 68). War may also awaken or further strengthen nationalistic tendencies to create more of an “us” versus “them” mentality that is frequently associated with genocide (Alvarez, 2001, p. 69). The victim is then likely to become the enemy and can even be blamed for the violence (Fein, 2000, p. 51). Similar to

29  Hill and Jones (2014, p. 677) point out that this relationship is also partly based on definitional overlap because “many government-​inflicted casualties in civil conflicts will be non-​combatants and thus are likely to be picked up in measures of state repression.”

200   Maartje Weerdesteijn the effects of political or economic crises, people may struggle to survive and may seek to search for scapegoats to blame for their misery (Alvarez, 2001, p. 69). Another reason why war facilitates the perpetration of state-​sponsored mass murder is that during this time the coercive institutions of the state are strengthened, and the position of revolutionary elite who favor violent policies might consequently be reinforced, making violence more likely in the future (Krain, 2000, p. 42; Fein, 2000, p. 49).30 Wars in general also often put genocidal regimes in power, and war can form a cover for the crimes (Krain, 2000, p. 42), since the state is likely to act more secretively and defensively during this time, reducing the power of others to oppose them (Alvarez, 2001, p. 69). At the same time, the military is also more easily mobilized to perpetrate genocide during times of war (Alvarez, 2001, p. 70). Finally, certain groups in society, oftentimes minorities, become more vulnerable, and while military victories make genocides or politicides more likely because they allow the victor to impose its will on the defeated, peace negotiations frequently fail (Alvarez, 2001, p. 71; Krain, 2000, p. 43). In addition, linking wars again to political and economic crises, the social disruption and the political and economic instability that may result from war can cause a sense of relative deprivation which can produce discontent and, through this process, ultimately contribute to the perpetration of state violence and mass atrocities (Nafziger and Auvinen, 2002, p. 154). War, therefore, seems to be one of the strongest predictors of mass atrocities and state repression (Hill and Jones, 2014, p. 671), and dictatorships are more likely to engage in war. Democracies rarely fight each other, and war becomes more likely when at least one of the warring parties is a dictatorial regime (Peceny et al., 2002). The most common explanation that is provided holds that democratic leaders are much more cautious to use force because when they do, they will be held accountable by their constituents (Weeks, 2014, p. 2; Peceny et al., 2002, p. 15).31 While this reasoning is contested (Rosato, 2003), and there seems to be much variation among dictatorial regimes (Weeks, 2014, p. 171; Peceny et al. 2002, Ezrow and Franz, 2011, pp. 143–​145), most of the data continues to suggest that democracies are somewhat less prone to wage wars (Müller and Wolff, 2006). In addition, democracies will be more likely to minimize losses as a consequence of war among their own population, although such restraint is not extended to foreign civilian populations (Valentino et al., 2010, p. 543). Looking at civil wars, it has been argued that consolidated democracies and consolidated dictatorial regimes are less prone to wage war inside their countries, and countries that are semi-​democratic are more likely to get bogged down in civil war (Kreutz, 2006). Kreutz (2006, p. 176) explains, “[t]‌hese countries, it is argued, lack the capacity of autocracies in effectively suppressing opposition as well as factors inherent to democracy that make it less likely that the use of force is employed to promote political change.” While Fearon and Laitin (2003) also argue weak states are more prone to civil war, they offer a different argument why this is so. They argue (2003, pp. 75, 88) that it is not the lack of democracy per se that

30  War has also been associated with particular types of atrocity crimes, such as sexual violence, but as Wood shows, there is great variation in the amount of sexual violence that is perpetrated in conflicts, with sexual violence being extremely pervasive in some conflicts and not at all in others (Wood, 2009). See also Chapter 27 by Kim Thuy Seelinger and Elisabeth Wood in this volume. 31  For a more elaborate overview of different reasons see Müller and Wolff (2006).

Democracies, Dictatorial Regimes, and Atrocities    201 increases risks for civil war, but rather that weak states are more prone to civil war mainly because “financially, organizationally, and politically weak central governments render insurgency more feasible and attractive.” Hegre et al. (2001) find that these intermediate regimes even tend to be more likely to wage civil wars when they have been given time to recover from a regime transition. When democracies are engaged in wars, democracies are more prone to experience attacks against civilians than non-​democratic regimes, however, these violations are then often perpetrated by non-​state forces (Kreutz, 2006, p. 185–​187). Importantly, Fein (1995, p. 180) points out that there is clearly a relationship between war and life integrity violations,32 but merely claiming that war causes life integrity violations would be too simplistic because sometimes repression by the state may cause the civil war. In addition, state violence may cause a cycle of violence which makes it quite impossible for non-​state actors to lay down their weapons even when militarily they are unlikely to win (Fein, 1995, p. 180). Overall, there seems to be a mutually reinforcing relationship between war, the perpetration of atrocity crimes, and the non-​democratic nature of a regime.33 War and the non-​ democratic nature of a regime increase the chances that mass atrocities are perpetrated, but a dictatorship is also more likely to engage in war and less likely to limit casualties when they do, increasing the chances that atrocity crimes materialize.

5.2. Plural society and a history of violence Kuper was one of the first scholars who argued that mass atrocities were due to a plurality of groups in society. According to Kuper (1981, p. 17) [genocidal conflicts] are particularly a phenomenon of the plural or divided society in which division persists between peoples of different race or ethnic group or religion, who have been brought together in the same political unit.

The link between the presence of mass atrocities and a plural society was subsequently affirmed in empirical research (Harff and Gurr, 1989). Others have, however, questioned this relationship (Krain, 1997, p. 353) or suggested it is not the plural nature as such that heightens the risk of genocide and other mass atrocity crimes, but rather the political exclusion which may result from it and the rebellion, and subsequent violent government response, it may spark (Fein, 1993, p. 89; Harff, 2003, pp. 67–​68).34 According to Staub (2000, p. 370), having a plural society is particularly dangerous when a group of people is subsequently devalued. There are indications that this is not only the case in dictatorial regimes. Fein (1995, p. 180) found that there are higher levels of life integrity violations when there is more ethnic discrimination in free states, as well. In addition, when antagonisms between groups have turned violent in the past, this history of violence forms another risk factor.

32 

See also Chapter 6 by Jolle Demmers in this volume. See also Weerdesteijn (2017, pp. 68–​69). 34  Harff (2003, pp. 67–​68) found discrimination to have only a weak effect, but did see an increase in the risk of genocide and politicide when the elite were from an ethnic minority. 33 

202   Maartje Weerdesteijn A history of violence is an important contributing factor for the outbreak of genocide and life integrity violations (Zanger, 2000, p. 229; Harff, 2003). A potential explanation for the recurrence of mass atrocities is that groups carry the memories of collective trauma with them across generations. These stories can become embedded in the collective memory of groups, through a sense that injustice was done to them (Staub and Bar-​Tal, 2003, p. 722). The collective memory may subsequently be tied to a collective emotional orientation (Bar-​Tal et al., 2007, p. 442). These emotions are based not on the experiences of the individual members, but on the experiences of the collective; experiences usually only a small number of group members lived through directly (Bar Tal et al 2007, p. 442). The material consequences of conflict are also transferred across generations (Berckmoes et al., 2017, p. 5). The legacy of previous victimization may subsequently cause the victimized group to become perpetrators in cycles of violence (Staub & Bar-​Tal, 2003, p. 722), but perpetrator groups may also experience the sense that they were victimized and wronged and thus perceive themselves as being victimized, which can be explosive as well.35 As Chirot and McCauley (2010, p. 91) point out: Memory and historical reconstruction, often invented but nevertheless sincerely believed, are important contributors to demands for vengeance of past wrongs that in turn can lead to a new series of mass killings.

This, of course, does not necessarily mean violence will break out. Harff (2003, p. 68), for instance, suggests that leaders may be a crucial determinant, since she argues that ethnic cleavages only lead to mass atrocities when there was discrimination in society or when the elite stems from a particular ethnic minority. Zanger (2000, p. 229) concludes in this respect that “leaders who have used terror in the past are generally willing to use violence again in the future.” There are indications that non-​democratic elites potentially have more capabilities to actually orchestrate the perpetration of atrocity crimes. According to Woolf and Hulsizer (2005, p. 107), especially leaders who demand unconditional support and trust from their population can manipulate how tolerant or violent the population is. Woolf and Hulsizer (2005, p. 108) emphasize that “one of the most powerful tools available to a leader is the ability to manipulate how the population thinks about, influences and relates to each other.” In dictatorial regimes, where the freedom of speech might be significantly impeded and a dominant narrative of a country’s past may be imposed on the population, this tool is more readily available (Moghaddam, 2013, p. 51). Leaders, especially dictatorial ones, can use their power to further enhance polarization in society by limiting dissenting voices. Studies have shown that interaction between people who reinforce each other’s opinions tends to lead to even more extreme positions (Woolf and Hulsizer, 2005, p. 113). While propaganda may be important in shaping public opinion as well, its influence should not be overstated. It is mostly effective when there is much exposure to the message in the propaganda, if the population’s opinion on the topic is weak and ambiguous, or when propaganda is used to reinforce pre-​existing beliefs (Woolf and Hulsizer, 2005, p. 111). Semelin (2003, p. 196) likewise points out that destructive ideologies 35  This was the case in Serbia for instance (Morus, 2007). See also Chapter 24 by Lidewyde Berckmoes in this volume.

Democracies, Dictatorial Regimes, and Atrocities    203 will always have to be adapted to the local culture for them to have any influence on the broader population. An exclusionary ideology and increased in-​and out-​group feeling can be beneficial to the dictatorial leader. In-​group/​out-​group polarization creates more cohesion among the in-​group, and cohesive groups tend to respect their elite more (Chirot and McCauley, 2010, p. 65). This process is very closely related and associated with previously mentioned preconditions since, as explained earlier, the out-​group can also conveniently be blamed for the difficult life conditions in society. As I explained in my previous work, the tremendous influence a dictatorial leader potentially has over the most prominent narratives in society allows him to use the plurality of groups in society and exploit memories of past violence (Weerdesteijn, 2017, pp. 64–​67).

6.  Conclusion Much has been said about the relationship between the democratic or dictatorial nature of a regime and the implications this has for human rights violations and atrocity crimes. However, this research is not always easily comparable. Scholars have used disparate terms and definitions for the type of human rights violations they analyze, resulting in scattered conclusions, each with its own scope which often tends to be broader than war crimes, crimes against humanity, and genocide. In addition, the field could gain from more interaction between the quantitative and qualitative strands of research. This could potentially lead to a deepening of our understanding by moving beyond the simple rational choice explanations that focus on accountability to differentiate democratic and dictatorial policies with respect to human rights. This chapter has tried to provide a starting point for such research by analyzing how dictatorial regimes interact with the other risk factors for mass atrocities to further understand why dictatorships are more prone than established democracies to violate human rights and perpetrate mass atrocities. It has done so by combining qualitative and quantitative insights on the risk factors and used qualitative scholarship to further analyze how dictators can use these risk factors to foster a climate in which mass atrocities can be perpetrated.

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CHAPTER 9

Ide ol o gies, Ide nt i t i e s , an d Speech in At ro c i t i e s Jonathan Leader Maynard 1.  Introduction One of the most enduring debates over the explanation of atrocity crimes concerns the role of ideologies, identities, and extreme speech or propaganda. From the earliest research on atrocities—​initially focused primarily on genocides—​scholars have suggested that ideologies, especially of a revolutionary, totalitarian, or utopian form, have provided central motivations and legitimating frameworks for violence (Arendt, 1951/​1976; Kuper, 1981, pp. 84–​100; Melson, 1992; Goldhagen, 1996; Weitz, 2003; Kiernan, 2003). Scholars have similarly suggested that intergroup divisions along lines of ethnic, religious, or political identity—​whether long-​standing or recently mobilized—​constitute critical preconditions and organizing logics for atrocity crimes (Kuper, 1981; Oberschall, 2000; Moshman, 2007; Hiebert, 2008; Hiebert, 2017). Extreme speech, in the form of propaganda, hate speech, and slanderous rumors, has therefore been presented as essential in both disseminating atrocity-​ justifying ideologies and conceptions of identity, and in directly inciting or promoting the violence (Scutari, 2009; Benesch, 2012; Tirrell, 2012; Yanagizawa-​Drott, 2014; Gordon, 2017). Yet, all these arguments are deeply contested. Skeptics suggest that the significance of ideologies, identities, and speech has been overstated, and that the key roots of atrocity lie elsewhere: in societal crises, authoritarian political institutions, local intra-​communal conflict, strategic and material self-​interest, or brutalization during war. Others reassert the importance of ideologies, identities, and speech, but suggest that they play a somewhat different role than has traditionally been assumed (for example, Kallis, 2009; Straus, 2015; Vela Castañeda, 2016; Saucier and Akers, 2018). In this chapter, I provide an overview of these debates, outline key findings on the role of ideologies, identities, and speech that have emerged from the latest research on atrocity crimes, and identify enduring puzzles for future research. Most of my discussion is organized around the three broad positions on the role of ideology, identity, and speech I have just suggestively sketched. Specifically, I distinguish among: (i) a traditional perspective that

210   Jonathan Leader Maynard emerged out of early genocide research in the 1970s and 1980s and has continued to serve as the most familiar way of thinking about ideology, identity, and speech in atrocities up to the present day; (ii) a skeptical challenge to that traditional perspective, which largely downplays the significance of ideology, identity, and speech; and (iii) a revisionist perspective which—​ though drawing on earlier insights—​has only really crystallized in the last decade. As with most maps of scholarly debates, these three perspectives are drawn with broad brushstrokes, and should not obscure internal variation within each. My own position is partisan—​I incline toward a revisionist perspective—​but I suggest that the debate among these three perspectives remains very much alive, and each has made important contributions to our understanding of atrocity crimes. After mapping out the three perspectives, I proceed to discuss two key theoretical puzzles that require deeper study: first, what forms of ideology, identity, and speech carry the greatest danger of promoting atrocity crimes; and second, what underlying factors explain the radicalization of ideologies, identities, and speech toward atrocity crimes. I conclude with some broader observations on the state and future direction of research on this topic. “Ideology,” “identity,” and “speech” warrant some definition, since all are infamously slippery terms. In this chapter, I conceptualize all three broadly, both for reasons of inclusivity, and because broad conceptualizations of these phenomena are increasingly dominant in contemporary research. I define ideologies as the distinctive political worldviews of individuals, groups, and organizations, that provide sets of interpretive and evaluative ideas for guiding political thought and action (see also: Hamilton, 1987, p. 38; Freeden, 1996, p. 3; Jost et al., 2009, p. 309; Ugarriza and Craig, 2013, p. 450; Gutiérrez Sanín and Wood, 2014, p. 214). Rather than characterizing ideologies as highly systematic and inflexible belief-​systems—​which, modern psychology suggests, would force us to conclude that almost no-​one possesses an ideology (see Jost, 2006, p. 653)—​this conceptualization sees ideologies as commonplace but as varying in character across individuals and groups. I define identities as subjectively understood social categories ascribed to groups of individuals by members of those groups or outsiders (see also: Fearon, 1999; Brubaker and Cooper 2000). In other words, identities are conceptualizations of groups, the meaning of which is typically contested and may not match the self-​understandings of the individuals sorted into them (see also Chalk and Jonassohn, 1990, p. 23). I define speech as acts of human communication, not only through verbal discourse but also including non-​verbal communication such as images, gestures, and music (Milliken, 1999, p. 229; Benesch and Leader Maynard, 2016, p. 73). For the theoretical scope of this chapter, I focus on political speech that serves to explicitly or implicitly justify or call for violence. This includes the four classes of speech which Gordon (2017) suggests are legally regulated by “atrocity speech law,” namely: incitement, persecution, instigation, and ordering. Running throughout this chapter is an argument—​softly critical of existing scholarship—​ that ideologies, identities, and speech need to be understood as deeply interdependent phenomena and therefore studied in tandem. At present, much research on atrocity crimes does not do this; some even implies that these concepts—​especially ideology and identity—​are in explanatory competition. A familiar narrative suggests, for example, that while pre-​1990s conflicts and atrocities were rooted in ideology, organized violence in the post–​Cold War world has instead been orientated around identity (Huntington, 2002, p. 22; Kaldor, 2012, p. 7). This implicit opposition of ideology and identity is a mistake. Identities are perceived

Ideologies, Identities, and Speech in Atrocities    211 and mobilized in different ways within different ideological worldviews, and all ideologies depend on certain interpretations of identities. “German” and “Jew” clearly did not mean the same thing to Nazis as they did to Communists or Social Democrats in interwar Germany, for instance. Moreover, many atrocity crimes are perpetrated against identity-​ groups—​such as “kulaks” in the Soviet Union, “new people” in Cambodia, or “subversives” in Cold War Latin America—​which are so heavily bedraggled in ideological interpretation that they bear little resemblance to traditional demographic categories. Even in ethnic conflict, as Collins (2009, p. 20) observes, what matters is how “allegedly long-​standing ethnic hostilities nevertheless are ideologically mobilized at particular points in time.” The same kinds of arguments apply to speech. It is well established that the effects of speech acts depend on the existing identities and ideological understandings of audiences (Nyhan and Reifler, 2010; Lewandowsky et al., 2012, pp. 118–​120; Adena et al., 2015). A given accusation against an out-​group, for example, may be met with hostile incredulity, passive acquiescence, or righteous agreement depending on the existing configuration of ideologies and identities in the relevant social context. We should therefore analyze ideologies, identities, and speech as a joint theoretical package, alongside other neighboring concepts like norms and frames.

2.  Traditional Perspectives The effort to understand atrocity crimes has always been accompanied by the suggestion that certain radical sets of ideas provide critical foundations for the violence. Early genocide scholarship was dominated by what I label a traditional perspective on the role of ideology, identity, and speech which continues to exert enduring influence in much modern research on atrocities. While the thinkers I classify as traditionalists differ in many important respects, this perspective is characterized by two shared claims. First, traditionalists suggest that atrocities—​or at least a very large subset of atrocities—​ are vitally rooted in radical ideologies, intensely racist and supremacist constructions of victim identities, and hate-​filled forms of speech and propaganda. In short, the crucial ideological, identity-​based, and discursive foundations of atrocity revolve around certain extremist aims and sentiments. A central theme of genocide scholarship has, for example, been that totalitarian, utopian, or revolutionary ideologies provide crucial rationales for the extermination of certain social groups—​as well as non-​genocidal forms of state terror or ethnic cleansing—​because such ideologies demand the radical reorganization of society in ways which require certain undesirable or oppositional groups to be violently purged (Arendt, 1951/​1976; Melson, 1992; Weitz, 2003; Valentino, 2004; Midlarsky, 2011; Richter et al., 2018; Kim, 2018). An equally prominent suggestion is that racist and dehumanized conceptions of victim identity create approval of or indifference to victims’ suffering, encouraging and facilitating atrocity by creating “conditions under which the usual moral inhibitions against violence become weakened” (Kelman, 1973, p. 38; see also: Kuper, 1981, pp. 84–​100; Goldhagen, 1996; Bandura, 1999; Moshman, 2007; Hagan and Rymond-​ Richmond, 2008; Savage, 2013; Hiebert, 2017). Similarly, both social scientists and legal and human rights practitioners have highlighted extremist hate speech as a crucial warning sign

212   Jonathan Leader Maynard and cause of atrocity, on the basis that it either expresses or generates hate-​fueled rationales for violence (Kaufman, 2001; Scutari, 2009; see also: Straus, 2007; Wilson, 2016; 2017). Importantly, all these extremist aims and sentiments are generally presented as fundamentally distinct from more commonplace “material,” “strategic,” or “pragmatic” concerns with economic gain, the maintenance of power, the promotion of national security, or the achievement of victory in war (du Preez, 1994, pp. 66–​78; Mitchell, 2004). Most traditionalists readily admit that those more commonplace concerns can also matter alongside ideology, identity, and speech—​since it is a point of broad consensus among scholars that atrocities are driven by multiple motives. But traditionalists (and their skeptical critics) have tended to characterize ideologies, identities, and dangerous speech as providing a fundamentally different sort of motive or rationale for atrocity, rooted in esoteric political ambitions, projects, and hatreds. Second, traditionalists portray ideologies, identities, and speech as primarily encouraging atrocity perpetration through relatively strong political convictions or passions. Ideologies, identities, and speech matter because perpetrators believe in them, and are motivated (at least in part) to act by such beliefs. Radical ideologies, for example, are presented as generating atrocities because policymakers are genuinely committed to the transformative political projects they demand (Melson, 1992; Weitz, 2003; Valentino, 2004; Midlarsky, 2011), and/​or because rank-​and-​file perpetrators are convinced by the denigrating slurs applied to victims and consequently guided by hate, anger, and fear to commit violence against them (Goldhagen, 1996; Hagan and Rymond-​Richmond, 2008; Richter et al., 2018). Similarly, intergroup hatreds and animosities along lines of ethnic, religious, or political identity are, traditionalists argue, all too real. Primordialist assertions of long-​standing “ancient hatreds” between groups are largely discredited, but fervent hatreds can nevertheless arise in response to social crisis and be fomented by skillful propaganda and elite manipulation (Kaufman, 2001; Hiebert, 2017). Such assumptions have been pervasive in many legal characterizations of atrocity, in which the core function of speech is to inject radical hatreds, fears, or ambitions into the minds of perpetrators, who are thereby driven or incited to perpetrate atrocity—​what Straus (2007, p. 614) critically labels the “hypodermic needle model” of media effects. As a classic illustration of all these claims, Goldhagen (1996, p. 179) invokes the former member of a Nazi police battalion who declared that: I would like to say that it did not at all occur to me that these orders could be unjust. . . . I know that it is also the duty of the police to protect the innocent, but I was then of the conviction that the Jews were not innocent but guilty. I believed the propaganda that all Jews were criminals and subhumans and that they were the cause of Germany’s decline. . . . The thought that one should disobey or evade the order to participate in the extermination of the Jews did not therefore enter my mind at all.

For traditionalists, this is why ideologies, identities, and speech matter. However horrific atrocities look to outsiders, traditionalists emphasize that perceptions of the rightness or wrongness of violence depend on one’s broader worldview (Goldhagen, 1996, pp. 13–​15). Certain worldviews, composed of extremist ideological claims and hateful constructions of identity, and promoted through extreme propaganda and speech, allow perpetrators to “believe that mass killing is the right thing to do” (Chirot and McCauley, 2006, p. 5). Such belief, traditionalists suggest, is crucial in explaining the willingness and frequent eagerness of individuals to participate in atrocities.

Ideologies, Identities, and Speech in Atrocities    213

3.  Skeptical Perspectives The traditional perspective continues to enjoy significant support from many scholars of atrocity crimes. Indeed, the recent focus on atrocities by radical jihadists has produced a renewed emphasis of these arguments in some quarters, since jihadist groups do appear to harbor extremist and even quasi-​totalitarian aims, benefit from sophisticated propaganda, and draw on significant numbers of ideologically committed supporters and fighters (see: Midlarsky, 2011, pp. 143–​185; Byman, 2016; Richter et al., 2018). Yet much contemporary scholarship on atrocities—​especially that which focuses less on genocides and more on crimes against humanity and war crimes during armed conflict—​expresses considerable skepticism toward traditionalists’ claims. Though rarely claiming that ideologies, identities, and speech are irrelevant, scholars of this skeptical perspective have raised three main arguments to think that such factors are much less important than traditionalists suggest. First, skeptics point to a broad swathe of empirical research that suggests that strong ideological convictions, identity-​based hatreds, and meaningful internalization of propaganda are far rarer among the perpetrators of atrocity crimes than the traditional perspective suggests. Rank-​and-​file perpetrators often appear to resemble opportunistic thugs more than ideological true believers, and seem to be more interested in loot, personal power, and violent self-​aggrandizement than political ideals or identities (Mueller, 2000; Humphreys and Weinstein, 2006; Weinstein, 2007). Often, war crimes and crimes against humanity appear to result from the progressive brutalization of combatants and civilians over the course of war through trauma, personal desperation, and the collapse of peacetime norms (Waller, 2007, pp. 242–​247; Dutton, 2007, pp. 116–​122; Mitton, 2015). Several scholars suggest that even in genocide and mass atrocities, the mobilization of rank-​and-​file perpetrators is often rooted in situational factors—​interpersonal connections, conformity to authority figures, peer pressure, and collective emotions under conflict stress—​rather than ideologies, identities, or propagandistic speech (Roth, 2005; Fujii, 2008; Fujii, 2009; Klusemann, 2010; Klusemann, 2012; McDoom, 2013). In many atrocities, moreover, local rivalries, animosities, and interests within communities seem to have been more central motives for violence than the ideological rationales or identity cleavages espoused by national elites (Kalyvas, 2003; Fujii, 2008; Fujii, 2009; Su, 2011). Indeed, far from brainwashing perpetrators or whipping up hatred, centrally organized propaganda sometimes appears to exert little influence over perpetrators, and merely offers excuses for self-​interested violence (Brass, 2003; Wilson, 2011). This emphasis of relatively “non-​ideological” drivers of atrocity disconnected from macro-​level identity cleavages or propaganda has been especially prominent in studies of rank-​and-​file perpetrators. Yet, even elite instigators and organizers of atrocity may be motivated by relatively prosaic concerns with strategic and material self-​interest. War crimes and crimes against humanity often appear, for example, to be an instrumental tool used to coerce and control civilian populations, to defeat an enemy in conflict, or to sustain an elite’s hold on power in the face of opposition (Kalyvas, 1999; Marchak, 2003; Valentino et al., 2004; Kalyvas, 2006; Downes, 2008; Fjelde and Hultman, 2014). Alternatively, a number of scholars suggest that elite decisions to resort to atrocities may be more guided by material self-​interest. Atrocities can, for example, be used to solidify control of valuable natural

214   Jonathan Leader Maynard resources or to ensure economic dominance over rival groups (Marchak, 2003; Querido, 2009; Esteban et al., 2015). Since such objectives are common to pretty much all political actors, particular ideologies or identities may seem relatively unimportant. As with rank-​ and-​file perpetrators, elite employment of ideological justifications, denigrations against victim identities, and hate speech may be little more than a rhetorical cover for self-​serving violence. As noted, the greater typicality of such dynamics over deep ideological belief, identity-​ based hatreds, or faith in propaganda has become especially clear as scholarly attention has moved beyond classic totalitarian genocides. Strategic and material motives and the local, situational, and conflict-​driven foundations of atrocity have been heavily emphasized by researchers in studies of, for example, the breakup of Yugoslavia, intercommunal violence in India, the Islamist insurgency in Algeria, the Guatemalan Civil War, post–​Cold War violence in Indonesia, or civil war in the Central African Republic (Stoll, 1993; Kalyvas, 1999; Mueller, 2000; Brass, 2003; Wilson, 2011; Klusemann, 2012; Kiper, 2015; Isaacs-​Martin, 2016). They also seem to apply to infamous war crimes by liberal democracies. A classic illustration of the power of military training, wartime brutalization, and situational psychological factors can be found, for example, in the following testimony from a U.S. perpetrator of the My Lai massacre by U.S. troops during the Vietnam War: That day in My Lai, I was personally responsible for killing about 25 people. Personally. . . . I just did it. I just went. My mind just went. And I was not the only one that did it. A lot of other people did it. I just killed. Once I started the . . . training, the whole programming part of killing, it just came out. . . I had no feelings or no emotions or no nothing. No directions. I just killed. (Smeulers, 2004, p. 244)

Even in “totalitarian” cases like the Holocaust or communist campaigns of mass repression, researchers have often found that “true believers” guided by fervent ideological belief, identitarian hatreds, or radical propaganda are rarer than the traditional perspective suggests. Holocaust scholars have, for example, highlighted the way economic demands, self-​interest, and careerism drove the radicalization of policy against the Jews and other targets of Nazi violence (Allen, 2002; Aly, 2008), and how processes of conformity to authority and peer pressure often seemed more central than fanaticism or intergroup animosity in generating rank-​and-​file participation in violence (Browning, 1992/​2001; Lang, 2010). The same can be said of research on Stalinist terror (Hoffman, 1993; Goldman, 2011), Mao’s Cultural Revolution (Su, 2011) or Khmer Rouge atrocities in Cambodia (Chandler, 2000; Williams and Neilsen, 2019). Again, such research does not necessarily suggest that ideology, identity, and speech are irrelevant. But it consistently pushes back against the traditional characterization of perpetrators as typically guided by extremist political convictions and hatreds. Second, skeptics criticize the methodological origins of traditionalist claims—​suggesting that they ultimately rest on relatively anecdotal, non-​rigorous, and speculative empirical foundations. Because the causal link between ideas and action is ultimately rooted in thought processes, which are not directly observable, it is extremely challenging to really know how specific ideological claims, constructions of identity, or propagandistic acts actually shape behavior (Kalyvas, 2006, p. 92). In their review of culturalist research on ethnic violence, Brubaker and Laitin (1998, p. 443) press this concern so effectively that it is worth quoting their critique at length:

Ideologies, Identities, and Speech in Atrocities    215 It is difficult to know whether, when, where, to what extent, and in what manner the posited beliefs and fears were actually held. How do we know that, in India, the most “rabid and senseless Hindu propaganda,” “the most outrageous suggestions” about the allegedly evil, dangerous, and threatening Muslim “other,” have come to be “widely believed,” and to constitute ‘a whole new “common sense”? How do we know that, in Sri Lanka in 1983, Tamils were believed to be “superhumanly cruel and cunning and, like demons, ubiquitous” or “agents of evil,” to be rooted out through a kind of “gigantic exorcism”? How do we know that, in the Serb-​populated borderlands of Croatia, Serbs really feared Croats as latter-​day Ustashas? Lacking direct evidence (or possessing at best anecdotal evidence) of beliefs and fears, culturalist accounts often rely on nationalist propaganda tracts but are unable to gauge the extent to which or the manner in which such fearful propaganda has been internalized by its addressees.

A broad array of contemporary research on atrocities is potentially vulnerable to this charge. Many discussions, as Brubaker and Laitin (1998) suggest, are largely confined to descriptive depiction of the ideologies and propagandistic speech observable in atrocities (see, for example: Kiernan, 2003; Alvarez, 2008; Saucier and Akers, 2018). Such analyses do offer important insights and hypotheses. But without more sustained causal analysis to establish how, if at all, such ideas really make a difference, the mere pervasiveness of those ideas in atrocities will not convince skeptical scholars that they genuinely shaped the behavior of atrocity perpetrators. Third, even when certain ideological, identitarian, or propagandistic claims are sincerely accepted by perpetrators of atrocity and may have been a “proximate” influence on their behavior, skeptics question whether those claims are truly an independent driver of violence or merely a symptom of more fundamental underlying causes. The skeptics’ suspicion is that radicalization of ideologies, identities, and speech is always extremely likely under certain political or social conditions: when, for example, ethnically divided societies undergo major political crises or changes (Kuper, 1981; Petersen, 2002), or when authoritarian leaders encounter sustained opposition (Marchak, 2003), or when groups suffer dramatic losses that prompt a search for radical ways to reclaim former glory (Midlarsky, 2005; Midlarsky, 2011), or when parties in a high-​stakes war are increasingly desperate to pursue any means that might bring victory (Valentino et al., 2004; Downes, 2008). In many cases, moreover, radicalization—​which for the purposes of this chapter I conceptualize as the shift of attitudes, norms, policies, and behavior in ways conducive to atrocity—​may be encouraged by conflict and atrocities themselves, rather than the other way around. Early violent acts typically legitimize more radical subsequent violence by perpetrators, legitimize vengeful or fearful reprisals by their enemies, and help radical hardliners to triumph over moderates on both sides (Fearon and Laitin, 2000, pp. 871–​872; Wilson, 2011; Lickel, 2012). In all such cases, skeptics may argue that it is these underlying political and social conditions—​rather than ideology, identity, and speech per se—​which truly explain atrocity crimes. At best, ideology, identity, and speech might be “intervening variables” which can shape the form atrocities take, but are ultimately governed by such deeper, primary causes. More skeptically, ideological justifications, hostile constructions of identity, or radical propagandistic speech may be little more than a relatively epiphenomenal “pretext” (Fujii, 2008, p. 570) or “rationalization” (Waller, 2007, p. 49). These skeptical arguments have significantly challenged traditional accounts of the role of ideology, identity, and speech. Skeptics do not generally deny that atrocities rely on

216   Jonathan Leader Maynard certain subjective frameworks of ideas and meanings. It is now widely accepted that many core features of conflict are “socially constructed” —​at a bare minimum, atrocity generally requires some sort of construction, activation, or hardening of intergroup or intragroup distinctions, whether these motivate, legitimate, or merely provide organizing scripts for violence. But how profoundly these insights help us explain atrocities is an open question. Consequently, in large sections of the contemporary literature on atrocity crimes—​ especially within research primarily focused on war crimes and crimes against humanity in armed conflict—​ideologies, identities, and speech have been largely sidelined in favor of strategic, material, institutional, and local factors.

4.  Toward a Revisionist Synthesis While these skeptical arguments and evidence may provide good grounds for pushing back against traditional portrayals of ideology, identity, and speech, several scholars suggest that skeptics push back too far. Deep ideological convictions, identity-​based hatreds, and extremist propagandistic incitement may be rarer in atrocities than was once thought. But it is not clear that this makes the role of ideologies, identities, and speech marginal. Indeed, in contrast to the expectations of skeptics, evidence that ideologies, identities, and propaganda do make a difference, both to whether atrocities occur and how they unfold, is considerable. Quantitative analyses, for example, have repeatedly found that forms of revolutionary or exclusionary ideologies or identities are a significant risk factor for atrocity crimes. In the most influential risk-​assessment model of genocides and politicides, Harff (2003) suggests that ruling elites which represent an ethnic minority and ruling elites guided by an “exclusionary ideology” are two of the six most significant risk factors for such crimes.1 Williams (2016) also corroborates Harff ’s model through a Qualitative Comparative Analysis (QCA) of 139 cases of genocide and non-​genocide. Kim (2018) similarly finds that revolutionary leaders, especially those committed to exclusionary ideologies, are much more likely to engage in mass killing than non-​revolutionary leaders. Other quantitative studies have replicated such findings (Uzonyi, 2018, p. 483), or suggested that variations in ideology, identity, and speech exposure within cases can shape the occurrence and intensity of violence in different regions (Yanagizawa-​Drott, 2014; Scharpf, 2018). Qualitative studies have similarly emphasized how contrasts between political elites’ ideologies and conceptions of identity can explain why large-​scale atrocity crimes occur in some societies but not others. Straus (2015), for example, examines why genocide occurred in Rwanda and Sudan but did not, despite similar conditions of sociopolitical crisis, in Senegal, Mali, and Cote d’Ivoire. Straus (2015, p. x) concludes that “to explain variation—​to explain why countries with similar crises experience different outcomes—​the role of ideology is essential.” With a similar research design, Bulutgil (2017) compares the policies of the Austro-​Hungarian Empire, Ottoman Empire, and Tsarist Russia toward ethnic minorities during World War I. Again, despite similar conditions of wartime insecurity and inter-​ethnic tensions, these states pursued contrasting policies toward their minorities: 1 

See also Chapter 4 by Barbara Harff in this volume.

Ideologies, Identities, and Speech in Atrocities    217 Austria-​Hungary engaged in limited deportations of Italians living close to the front lines, Russia engaged in targeted war crimes against Muslims in the form of massacres, while the Ottoman government engaged in mass deportations and genocide. Like Straus, Bulutgil finds that political leaders’ ideological priorities and the importance they attached to identity cleavages were crucial—​leaders from parties which emphasized ethnic cleavages were much more likely to prefer more violent solutions. Bloxham (2003, p. 186) likewise observes how, while Ottoman mass killing was motivated by fear of Armenian nationalists supporting the Ottoman Empire’s enemies, these sorts of fears were widespread among the imperial empires fighting in World War I, yet “nowhere else during the First World War was revolutionary nationalism answered with total murder.” The role of the Ottoman political leadership’s ideology in exaggerating fears, promoting Turkish nationalist ambitious for ethnic homogeneity, and eliminating any compunctions about the massive and disproportionate killing of the overwhelmingly unrebellious Armenian population, was crucial (Bloxham, 2003, pp. 187–​191). In parallel, several recent studies suggest that the significant skepticism in many quarters toward the impact of propaganda and speech may be misplaced. Crude “hypodermic needle” models of propaganda are inaccurate, but this does not mean that the influence of propaganda and speech is weak. In the most systematic study thus far of the role of radio propaganda in interwar Germany, Adena et al. (2015) find that, far from being a rather marginal influence, propaganda profoundly affected voting patterns in parliamentary elections between 1928 and 1933—​the period of the Nazi rise to power. What is especially compelling about Adena et al.’s (2015) findings is that they leverage a significant change in the nature of the propaganda to prove its independent impact. In the earlier elections of the 1928–​1933 period, radio-​issued pro-​Weimar government (and anti-​Nazi) propaganda had a negative impact on Nazi support, whereas after the Nazis took control of most radio propaganda, this effect reversed, with exposure to radio significantly increasing Nazi support. In addition, Adena et al. (2015) find that once controlled by the Nazis, radio propaganda increased both Nazi membership rates and levels of discrimination against Jews in the areas most intensely subject to propaganda. Importantly, while these effects were significantly affected by the political predispositions of target audiences, this did not eliminate the fact that propaganda altered behavioral outcomes. These findings are comparable to Yanagizawa-​ Drott’s (2014) quantitative study of the effects of Rwanda’s Radio Télévision Libre des Mille Collines radio station in the Rwandan genocide, which suggests that radio propaganda significantly affected local levels of violence, with Yanagizawa-​Drott concluding that around 10 percent of the genocidal killings could be attributed to the station’s influence (but see also Straus, 2007). It is also consistent with several studies that highlight how pro-​peace speech interventions through radio, television, speeches, and campaign rallies may be able to reduce the intensity of atrocities and political violence, or strengthen social norms which can inhibit them (Paluck and Green, 2009; Collier and Vicente, 2013). Many qualitative studies reach similar conclusions on the nuanced and attenuated but nevertheless meaningful power of propaganda. Writing of the Stalinist terror, for example, Rittersporn (1993, p. 100) argues that, while most of the population were not fanatical communists, “everything points to the assumption that Soviet citizens of the epoch were inclined to lend credit to the regime’s propaganda about the subversive activities of plotters and foreign agents.” Wilson’s (2011) study of propaganda in intercommunal atrocities in Indonesia’s Northern Maluku Province in 1999 suggests that, while early stages of violence

218   Jonathan Leader Maynard had little to do with propagandistic provocation, inflammatory speech by elites was often believed and did play a role in expanding violence beyond a local dispute into large-​scale killings. Taken together, this research suggests that broad skepticism about the impact of ideology, identity, and propaganda/​speech is unwarranted. Yet it does not eliminate most scholars’ dissatisfaction with traditional perspectives. In consequence, recent studies have started to formulate what I term a revisionist perspective on the role of such ideational factors. Revisionist scholars differ from skeptics in that they affirm the central importance of ideology, identity, and propaganda in shaping the occurrence and character of atrocity crimes. But they modify traditional accounts in three main respects. First, revisionists have tended to focus less on ideologies, identities, and speech as a source of “extraordinary” motives for violence—​such as revolutionary political aims or passionate hatreds—​and instead stress the interconnection of ideologies, identities, and speech with more prosaic drivers of atrocity. In particular, revisionists have challenged the conventional dichotomy between ideational factors and strategic/​material/​pragmatic motives for violence, emphasizing that ideologies, identities, and speech all shape strategic thinking and understandings of material interests (Verdeja, 2012, p. 308). As Straus (2012, p. 549) explains, in political crises, “the ideological vision of the leadership will shape how a state defines strategic enemies and strategic objectives, thus indicating which states are likely to respond to perceived threat with mass violence and which are not.” In addition, even where atrocities are not motivated by any special ideological or identitarian perceptions, ideologies, identities, and speech may be vital in privately or publicly legitimating atrocity as a means of pursuing strategic or material interests. Some elites will therefore conclude that genocides, war crimes, or crimes against humanity are the best available course when other elites in the same situation would deem such violence foolhardy and impermissible (see also Thaler, 2012; Oppenheim and Weintraub, 2017, pp. 1131–​1133; Krcmaric, 2018). While there is something of an elitist focus in recent revisionist scholarship, similar arguments can be made about rank-​and-​file actors, where ideologies, identities, and speech frequently appear powerful not because such actors are guided by extremist aims or virulent hatreds, but simply because they accept framings of victims as linked to dangerous threats and accept ideological legitimations of the violence and the authorities who call for it (see Bartov, 1994; Goldman, 2011; Kiper, 2015; Vela Castañeda, 2016). Second, revisionist scholars emphasize that deeply internalized convictions are neither the sole nor necessarily the most important way in which ideologies, identities, and speech can shape perpetrator behavior. Instead, revisionists have started to unpack a more diverse and complex range of causal mechanisms that link such factors to violence. For a start, many scholars emphasize that ideologies, identities, and speech often encourage the perpetration (or avoidance) of atrocity by shifting social norms, frames, or scripts—​which can coordinate collective action even when deep belief is absent (Oberschall, 2000; Fujii, 2004; Fujii, 2009; Bellamy, 2012; Savage, 2013). Scholars of propaganda similarly emphasize that public speeches, rallies, and broadcasts often work by shifting audiences’ perceptions of the level of popular support for atrocity crimes rather than actually persuading them that it is morally right (Adena et al,. 2015, p. 1890; Anderson, 2017a, pp. 69–​92). Ideologies, identities, and discourses are also powerful because they often become embedded in political institutions, procedures, and other organizational structures. The degree to which they are truly “believed” in by members of the organization may vary considerably across

Ideologies, Identities, and Speech in Atrocities    219 members, but institutionalized social pressures and incentives within such organizations nevertheless encourage all members to conform to organizational ideologies and identities (Allen, 2002, pp. 114–​115; Zimbardo, 2007; Bloxham, 2008). The point is not, it should be stressed, that internalization does not matter at all. But the degree of internalization needed for ideologies, identities, or speech to shift behavior varies. Many perpetrators of atrocity crimes only accept ideological narratives, portrayals of identity, or propagandistic claims partially and tentatively. But such limited acceptance may still be critical in allowing those perpetrators to see the violence as justified, and to willingly initiate, organize, or participate in atrocities rather than avoiding, resisting, or deserting from them (Bartov, 1994; Figes, 2002; Vela Castañeda, 2016). Third, whereas traditionalists have tended to present ideologies, identity cleavages, and propaganda discourses as broad, uniform “macro-​variables” attached to given cases of genocide and mass atrocity, revisionists have increasingly highlighted the uneven impact of ideologies, identities, and speech within cases, and the role of ideological contestation and change in shaping how atrocities unfold. Rather than being sweepingly endorsed by the perpetrating group, ideologies and antagonistic conceptions of identity are often a source of significant disagreement—​with the ideological balance among local political elites or regional military commanders, therefore, crucial in shaping the onset, intensity, and character of atrocities in specific areas. In his research on the Rwandan Genocide, for example, Straus (2006, pp. 65–​94) finds that the relative local balance between “hardliners” and “moderates” crucially shaped the local onset of atrocity crimes: while hardliners were able to use violence to coerce, sideline, or eliminate moderates over time, moderates could delay or obstruct and thereby undermine the intensity of violence. Robinson (2017, pp. 466–​468) finds the same pattern in Indonesian crimes against humanity in 1965–​1966, where: The temporal and geographical variations in the pattern of mass killing corresponded closely to the varied political postures of army commanders in a given locale. . . . Where the army command was politically divided, faced resistance or did not have sufficient troops at its disposal, the mass killing was delayed for some time but then accelerated dramatically when the balance of forces tipped in favour of the anticommunist position.

Using a statistical approach, Scharpf (2018, p. 14) reports a similar finding for crimes against humanity in Argentina’s Dirty War between 1975 and 1981, where “variation in ideological convictions” between the branches of the military, which commanded different districts in Argentina, appeared to substantially affect local variation in the intensity of repressive violence. In the Armenian Genocide too, escalation of mass killings was intimately linked to the presence or arrival of radical nationalists; by contrast, less radical local authorities would sometimes block or limit massacres, at least temporarily (Bloxham, 2003, pp. 168–​ 169, 177, 179). Dumitru and Johnson (2011), meanwhile, focus on local civilian attitudes in two Romanian-​controlled territories in World War II: Bessarabia, which saw considerable local participation in violence against Jews, and Transnistria, in which the population displayed more cooperative attitudes toward Jews. Dumitru and Johnson (2011, p. 35) present evidence that this contrast was rooted in the different ideological governance of the territories: Bessarabia had been controlled for almost the entirety of 1918–​1942 by an increasingly fascist Romania which engaged in “constant vilification, blame, and construction of the Jew as an enemy of the Romanian people,” while Transnistria had been controlled by a Soviet

220   Jonathan Leader Maynard government from 1918 to 1941 which “had encouraged locals to view their Jewish neighbors not as Jews, but as compatriots, as neighbors, as equals.” While I present this revisionist perspective as a compelling synthesis of evidence on the significant but complex role of ideology, identity, and speech in atrocity crimes, I reiterate that the debate between these three perspectives is very much alive. Traditionalists can maintain that both skeptical and revisionist characterizations of ideology, identity, and speech underestimate motivating (the real motivating power), racist supremacism, and blatant hate speech. Skeptics can continue to suspect that both traditionalists and revisionists make too much of superficial ideological and identitarian discourses and neglect the underlying primacy of desperate political crises, commonplace self-​ interest, intragroup conformity, and local social relations in the perpetration of atrocity crimes. Ultimately, traditionalist, skeptical, and revisionist perspectives should really be seen as defining a relatively fluid theoretical triangle, and scholars will continue to debate which area within that triangle best represents the role of ideational systems in atrocity crimes. Indeed, cases of atrocity themselves clearly vary in the relative importance and precise role ideologies, identities, and speech play.

5.  What Forms of Ideology, Identity, and Speech Matter Nevertheless, disagreements over the role of ideology, identity, and speech are not moot, and extend beyond the broad contrasts between the traditional, skeptical, and revisionist perspectives I have focused on thus far. In the final two sections of this chapter, I focus on two key enduring puzzles over the role of ideologies, identities, and speech, which should be priorities for future research on atrocity crimes. First, even if ideologies, identities, and speech are assumed to have some relevance in atrocity crimes, scholars agree less than is often assumed over what sorts of ideologies, identities, and speech are most crucial in driving atrocity (Straus, 2016, p. 57). Certain themes certainly recur across most theorists: dehumanization, the hardening of “us and them” identity divides, and the resulting exclusion of victims from the primary political community and its “universe of obligations” (see, variously, Fein, 1990; Opotow, 1990; Alvarez, 2008; Straus, 2015; Hiebert, 2017). Even these core themes are disputed, however—​ there is, for example, a salient debate over the actual role of dehumanization (see Lang, 2010; Neilsen, 2015; Rai et al., 2017) —​and on their own they lack theoretical precision, since degrees of dehumanization, “us and them” thinking, and moral exclusion are commonplace and rarely lead to atrocity. Beyond such core processes, what is most striking about scholarly discussions of the ideological, identitarian, and discursive foundations of atrocities is the extent of terminological profusion. Each new study suggests new frameworks or typologies for identifying key themes that encourage extreme violence: for example, Eric Weitz (2003) focuses on “utopias of race and nation”; Ben Kiernan (2003) highlights “racism,” “territorial expansionism,” “cults of cultivation,” and “purity”; Alex Alvarez (2008) stresses “nationalism,” “past victimization,” “dehumanization,” “scapegoating,” “absolutist worldview,” and “utopianism”; while

Ideologies, Identities, and Speech in Atrocities    221 Gerard Saucier and Laura Akers (2018) identify twenty major themes in the “democidal thinking” behind large-​scale killing. While the analyses of these authors are insightful, the extent to which their different frameworks reflect substantive disagreements is unclear. This is one of the problems with relying on relatively descriptive “theme-​spotting” modes of analysis. There are an almost infinite number of ideational themes which can be identified in cases of mass atrocity, and without deeper causal analysis of the different themes in practice, we have little grounds for emphasizing one set over another. As a rough sorting, however, existing discussions have focused on three different sorts of ideological, identitarian, or discursive constructs that may encourage or guide the perpetration of atrocity crimes. The first, typically emphasized by traditionalist perspectives, is extraordinary motives or aims usually rooted in totalitarian, revolutionary, or racially supremacist ideological objectives and intense intergroup hatreds, which appear to involve a radical break from the conventional, life-​respecting moral and political values of civilized societies (Arendt, 1951/​1976; Kuper, 1981; Melson, 1992; Goldhagen, 1996; Midlarsky, 2011). As I have noted, even scholars who affirm the relevance of ideology, identity, and speech have come to question this answer. While the most infamous and destructive genocides in world history may well be associated with regimes with extremist revolutionary objectives, less “extraordinary” regimes have also committed genocide, and a wide range of states and non-​state actors have perpetrated non-​genocidal war crimes and crimes against humanity. Many scholars therefore offer a second, alternative focus: on those ideological frameworks, constructions of identity, or forms of speech which morally disengage perpetrators from the atrocity (Kelman, 1973; Bandura, 1999; Slovic et al., 2012; Anderson, 2017b). Kelman (1973, p. 33), for example, contends that in atrocities, “[n]‌either the reason for the violence nor its purpose is of the kind that people would normally consider justifiable,” requiring us to identify the processes which explain “how the voice of conscience is subdued” (Kelman, 1973, p. 43). Bauman (1989, p. 188) similarly claims that “the Holocaust could be accomplished only on the condition of neutralizing the impact of primeval moral drives.” Anderson (2017b, p. 43) similarly emphasizes how perpetrators of atrocities must employ “techniques of neutralization” in order to get around the fact that “[s]ocieties impose a general prohibition on killing.” For all these theorists, the key ideological, identitarian, or discursive risk factors associated with atrocity crimes have thus less to do with extraordinary political aims or hatreds, and are instead more associated with the distancing, othering, and objectification of victims, the denial of responsibility, and/​or attitudes of unquestioning and unthinking obedience among perpetrators. Other scholars worry, however, that this emphasis on moral disengagement can be misleading, on two main counts. First, while it may be wrong to narrowly associate atrocity crimes with extraordinary extremist aims, a focus on moral disengagement may excessively downplay the motivational role of ideology, identity, and speech. Assuming that atrocity requires disengagement from moral concerns obscures how many perpetrators act from the belief that their acts are morally justified, and are motivated by loyalty to their group, desires to defend the group from (purported) threats, and respect for the authority figures who command violence (Koonz, 2003; Powell, 2012; Fiske and Rai, 2014; Kiper, 2015). Second, arguments about moral disengagement risk idealizing the “usual standards of morality,” conventional “voice of conscience,” or “primeval moral drives” of real-​world societies (Savage, 2013, p. 145). Genuinely conventional moral norms do not, in truth, place sweeping prohibitions on killing. On the contrary, the “usual standards of morality” of real-​world

222   Jonathan Leader Maynard societies over history suggest that governments or other authorities are both permitted, and indeed required, to kill—​and potentially even kill civilians—​in defense of the in-​group (as in war) and/​or to punish extreme wrongdoers (as in capital punishment). It is precisely these “conventional” moral claims, some scholars suggest, which regimes consistently fall back on in justifying atrocity crimes. This suggests a third set of ideas through which atrocities may be encouraged. Rather than relying on extremist ideological aims, intergroup hatreds, or on ideas which promote moral disengagement, atrocity may be rooted in relatively commonplace moral aims and claims—​but ones which have become attached to highly distorted representations of both the violence and its victims. Shaw (2003), for example, theorizes genocide as a form of “degenerate war,” where familiar conceptions of war-​waging are transferred over to civilian groups that are portrayed as intense military threats. Much research on crimes against humanity by repressive right-​wing regimes similarly emphasizes not extraordinary projects of revolutionary utopia, but rather an anticommunist “National Security Doctrine” built on highly brutal versions of what are nevertheless familiar claims about the legitimacy of violence to protect the state and society against “terrorism” and “subversion” (Pion-​Berlin, 1988; Schirmer, 1998; Cribb, 2002; Brett, 2016). Moshman (2007, p. 115) likewise contends that genocides are “an extreme result of normal identity processes,” while Taylor (2006, p. 231) emphasizes that atrocities more generally are rooted in processes of “otherization” which are “part of natural human behavior.” Research on atrocities informed by modern work in political and social psychology has likewise emphasized the role of “right-​wing authoritarianism” and “social dominance orientation”: two aspects of ideological worldview which can be found in all societies, but which can provide the foundation for policies of extreme discrimination and violence (Cohrs, 2012, pp. 58–​60; Vollhardt, 2015, pp. 100–​101). This third characterization of the key ideas behind atrocity crimes has one major virtue and one major drawback. Its virtue is that it importantly recognizes that atrocities can and are committed by liberal states and fairly conservative autocracies—​not just by manifestly extremist, revolutionary, or supremacist ones.2 Indeed, when U.S. war crimes such as the My Lai massacre in Vietnam were revealed, survey research found that a majority of the U.S. public suggested that they too would follow orders from military superiors to kill innocent civilians (Kelman, 1973, p. 41). Recent research by Sagan and Valentino (2017) similarly suggests that a majority of the current American public would approve a nuclear strike which killed two million Iranian civilians, if doing so is assumed to save twenty thousand American soldiers’ lives. The drawback to this answer is the flipside of this strength. If the ideological, identitarian, and discursive foundations of atrocity are relatively commonplace, it is difficult to use them to identify or explain severe risks of atrocity. This problem can be mitigated somewhat, however, if scholarship can become clearer on the processes through which such commonplace foundations are radicalized or distorted. I return to this question in the next section. Of course, all three of these categories of ideas can matter—​and again, atrocities will vary in the relative centrality of extreme ideals and hatreds, processes of moral disengagement, and distortions of conventional justifications of violence. There are also, as I have intimated, good reasons to think that the most dangerous forms of ideology, identity, and 2 

For a discussion on regime type and atrocities see Chapter 8 by Maartje Weerdesteijn in this volume.

Ideologies, Identities, and Speech in Atrocities    223 speech vary across different sorts of atrocity crimes. While genocides may generally require quite specific portrayals of certain civilian groups as intrinsic collective threats rooted in nationalist projects that exclude certain groups from the political community (Straus, 2015, pp. 54–​86; Hiebert, 2017), war crimes may be able to draw more broadly on distorted notions of military necessity and vicious wartime conceptions of “the enemy” (Mitchell, 2004; Kiper, 2015), while crimes against humanity may be sufficiently legitimated by harsh national security discourses or false rumors of atrocities committed by certain civilian organizations or groups (Pion-​Berlin, 1988; Bubandt, 2008; Wilson, 2011). But we need more research on the relative power and centrality of different ideas in different cases and, crucially, research which goes beyond descriptive theme-​spotting to offer some basis for causal inference. One way to do this is to draw on the growing body of experimental research in psychology and in real-​world peace-​building settings to assess the power of different kinds of ideas and claims (see Lickel et al., 2006; Maoz and McCauley, 2008; Paluck and Green, 2009; Hirschberger et al., 2015). Detailed qualitative studies which process-​trace the role and impact of specific ideas, comparatively assess the presence of different claims in cases where atrocities do occur and where they do not, or which construct more detailed tests for the three answers just mentioned (or others), can also offer grounds for causal inference (Wilson, 2011; Straus, 2015; Anderson, 2017a).

6.  What Explains Radicalization Toward Atrocity Crimes? A second crucial area for future research concerns not the nature of the ideologies, identities, and forms of speech which can promote atrocity crimes, but the reasons why the most dangerous ideas take hold in some contexts but not in others. It is perhaps surprising to find that, while case-​specialist research offers insights on this question—​a large body of literature, for example, examines the roots and cumulative radicalization of Nazism in Germany (Mosse, 1981; Melson, 1992; Friedländer, 1997; Weiss, 1997; Browning, 2005; Kallis, 2009)—​it has gone relatively unaddressed in comparative research and theory-​ building (Murray, 2015, p. 35). As I have noted, skeptics have tended to assume that where certain conditions of political and social crisis materialize, or where “objective” material, strategic, or political incentives for atrocity exist, radicalization will naturally follow. But while such factors clearly play a role, the many regimes or armed groups which do not engage in atrocity crimes despite such crises and incentives, cast doubts on this reductionist assumption. Much more comparative research is needed on the conditions for, nature of, and mechanisms at work in radicalization toward atrocity. There are, by my count, four primary exceptions to this neglect (though see also Staub, 1989, pp. 13–​50; Waller, 2007; Morrow, 2015; Anderson, 2017a, pp. 17–​42, 69–​92). Nyseth Brehm (2016) provides a quantitative analysis of the contexts in which “exclusionary ideologies” emerge, highlighting two sets of factors: first, contexts which provide opportunities for sudden ideological change, especially the years after irregular regime change or independence from colonial overlords; and second, contexts which intensify intergroup identity divisions, especially long legacies of colonialism or contexts of threats toward the ruling

224   Jonathan Leader Maynard regime. Murray (2015) employs a comparative analysis of key episodes in the trajectory toward three cases: the Armenian Genocide, the Holocaust, and Serbian atrocities during the collapse of Yugoslavia. Murray concludes that radicalization progresses through three tiers: a foundational tier, in which feelings of national decline lead to increasing attachment to a “homeland” and the identification of hostile “anti-​nations”; a progressional tier, in which radicalizing elites take over, often on the brink of war, and argue that “the homeland is the sole possession of the nation to the exclusion not only of the anti-​nation but of other groups” (Murray, 2015, p. 179); and finally a genocidal tier, in which association of the anti-​nation with existential threats during conflict provides the rationale and legitimation for their extermination. While not deterministically path-​dependent, Murray emphasizes that radicalizing changes at earlier points in the timeline are highly significant for subsequent changes, shaping key elite choices to radicalize further, and restricting alternative options. Midlarsky’s (2011) explanatory account of the appeal of violent political extremism has parallels with Murray’s study. Midlarsky also emphasizes how extremist groups are motivated by anger over major losses such as defeat in war, national humiliation, or severe perceived injustices, and highlights the key role of past developments in a nation’s history on later individuals’ interpretations of their present condition. Midlarsky (2011, pp. 25–​68) adds the central contention that loss is most dangerous when it follows a period of “ephemeral gains,” as well as highlighting mortality salience, induced by recent war or other political violence, in enhancing the appeal of extremism. Hiebert’s (2017) constructivist theory of genocide, based on case studies of Nazi and Khmer Rouge atrocities, also reaches similar conclusions: emphasizing the importance of permissive existing sociopolitical environments (typically characterized by exclusionary notions of political community) combined with short-​term crises which create the openings for radicalizing elites to reconceptualize victim groups as mortal threats. These four studies provide a foundation for future research, and their convergence on certain conclusions is encouraging, but they have shortcomings. For one, the dominant focus on a relatively small number of large-​scale genocides in the latter three studies limits the insights they can shed on atrocity crimes more broadly (as, at points, these scholars acknowledge). It is far from clear that, for example, civil war atrocities in Sierra Leone or Syria, or authoritarian repression in the Soviet Union or Argentina, generally match these narratives. More needs to be done to connect such studies with the broader literature on how ideology, identity, and speech evolve prior to and during intense conflict (see, for example, Brubaker and Laitin, 1998; Kuran, 1998; Fearon and Laitin, 2000; Malešević, 2006; Hammack, 2008; Cohrs, 2012), and with quantitative and qualitative work on a broader universe of cases. Drawing these various literatures together, it is possible to distill five widely shared—​ although rather imprecise—​theses about the causes and nature of radicalization toward atrocity crimes in general. First, there is widespread recognition that pre-​existing cultural environments and frameworks influence the likelihood and character of subsequent radicalizing changes in ideology, identity, and speech, by shaping the intellectual resources for and contextual plausibility of radicalizing claims (see, variously, Oberschall, 2000; Pierson, 2004, pp. 10–​13, 38–​41; Jost et al., 2009; Straus, 2015; Murray, 2015; Alvarez, 2015; Nyseth-​Brehm, 2016). Simultaneously, there is a second, even broader, agreement that radicalization is enabled, triggered, and/​or incentivized by severe political crises or “shocks” —​most obviously major war—​which destabilize existing ideologies and identities, threaten elite or broader public interests, and strengthen the psychological or practical appeal of

Ideologies, Identities, and Speech in Atrocities    225 radical ideas and violence (Staub, 1989, pp. 35–​50; Midlarsky, 2011; Murray, 2015; Nyseth-​ Brehm, 2016; Hiebert, 2017). A key question for atrocity research is the relative balance between these first two theses: are pre-​existing cultural foundations for radicalization crucial if crises are to lead to atrocity, or will severe crises tend to produce radicalization whatever the pre-​existing cultural environment, or is there really no generalizable pattern in the relative priority of these two factors? Third, political and cultural elites possess crucial, though constrained, agency—​ whether as cynical manipulators of radical ideas or as sincere ideological and intellectual vanguards—​in determining whether and how radicalization happens (Valentino, 2004; Murray, 2015; Straus, 2015). While certain broader political, material, and social conditions may render radicalization toward atrocity likely (Krain, 1997; Harff, 2003), the numerous societies which do not see large-​scale atrocities despite such conditions highlights how elites are rarely, if ever, forced to call for atrocities—​they must be willing to tolerate, endorse, or advance radical claims about victims and violence. Fourth, radicalization toward atrocity is generally “cumulative” and typically lacks a preordained plan from the outset; instead, it moves in a radicalizing direction by creating psychological, institutional, and policy-​based feedback loops that enable or encourage further radicalization (Staub, 1989; Bloxham, 2003; Mommsen, 2009; Verdeja, 2012, p. 316; Murray, 2015). Identifying in greater detail the mechanisms that sustain and those which may disrupt such feedback loops remains an important task for future research. Fifth, radicalization is not simply about shifts in sincere convictions and beliefs, but also revolves around the instrumental exploitation of ideology and identity for political and material self-​interest, the changing of social norms and institutions, and the gradual alteration of psychological habits and routines (Snyder, 2000; Aly, 2008; Morrow, 2015). A consequence of these last two points is that radicalization out of all proportions to underlying shifts in sincere attitudes can be generated by interdependent and often strategic political behavior. This has been well-​appreciated in research on, for example, nationalist and religious “outbidding,” “ethnification cascades,” “norm cascades,” and spirals of denunciation (see: Kuran, 1998; Snyder, 2000; Morrow, 2015; Toft et al., 2011; Goldman, 2011) but deserves renewed study with respect to atrocity crimes.

7.  Conclusion The debate over the relative importance and precise role of ideologies, identities, and speech in atrocity crimes remains one of the central debates in the field. Few scholars dismiss such factors as wholly irrelevant, but when one surveys the interdisciplinary (and somewhat fragmented) literature on atrocities, one finds a diverse range of portrayals of when and how ideologies, identities, and speech matter. In this chapter I have attempted to chart the present state of this debate by sorting such portrayals into three broad categories—​the traditionalist, skeptical, and revisionist perspectives—​and identifying the key points of contrast or disagreement between them as well as the relevant bodies of empirical evidence on which each perspective draws. These debates are very much alive and in need of further research and theoretical development. I have, in addition, suggested two especially critical questions which require deeper and more systematic comparative study: which forms or elements of ideologies, identities, and speech matter most in encouraging (or restraining) atrocities?; and what

226   Jonathan Leader Maynard conditions, mechanisms, and incentives best explain why the most dangerous elements arise in some circumstances but not others—​in short, what explains ideological radicalization toward atrocity? Given space constraints, I have limited detailed discussion to these two questions, but many other important areas also warrant further inquiry. For one, we also need to know more about whose ideologies, identities, and speech matter most. Is it the case that, as much recent research implies, national or local elites dominate in this (as in so many other) domains, or does this paint an excessively “top-​down” image of atrocity crimes that underestimates the power of popular pressures on elites? Another key question—​once it is appreciated that ideologies, identities, and speech do not have to be deeply internalized in order to shift behavior in atrocity—​concerns the relative balance between strong convictions, shallower forms of belief, instrumental exploitation of ideas, and the more diffuse pressures created by the institutionalization of ideologies and identities in norms and organizations. Does most of the action surrounding ideologies, identities, and speech in atrocities flow along one of these causal mechanisms or another? Or is this highly case and context dependent? Such debates are unlikely to be resolved any time soon, not least because interest in the role of ideology, identity, and speech turns in part on methodological and epistemological priorities over the kind of knowledge one seeks about atrocities. Skeptics’ concerns over the “unobservability” of ideologies, identities, and speech and their effects can easily be over-​ egged. But there are reasons why our rich, interpretive understanding of the character and potential roles of atrocity-​justifying ideologies, identities, or speech is generally much more developed than our capacity to parsimoniously model, predict, or accurately weigh the precise causal impact of such factors. Nevertheless, a core underlying argument of this chapter is that attention to ideologies, identities and speech is a vital element of our broader capacity to understand, explain, and even predict atrocity crimes. Alongside that positive assertion has been a more critical call for more theoretically developed, empirically wide-​ranging, and methodologically systematic research in this area. Until relatively recently, most discussions of ideologies, identities, and speech in atrocities relied heavily on descriptive theme-​spotting, case-​specific research, and /​or rather simple and presumptive portrayals of the causal processes linking such ideas to perpetration. Such approaches were vital in generating early theoretical hypotheses; in building sophisticated understanding of the ideological backdrop to major atrocities, especially genocides; and in generating penetrating critical analyses of the seductive claims, misrepresentations, and outright fantasies which could be used to make atrocities look justified. The contributions of such approaches are not spent. But greater theoretical depth and precision in explicating the causal mechanisms through which ideologies, identities, and speech matter, and more rigorous qualitative, quantitative, and experimental testing of the difference they appear to make, is desirable. Those recent publications which have pushed the frontiers of research in these respects offer striking evidence of how much we may still be able to learn.

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CHAPTER 10

Meso-​L evel Dyna mi c s of Atro ci t i e s Rachel Jacobs and Scott Straus 1.  Introduction This chapter focuses attention on meso-​level dimensions of mass atrocities. The underlying scenarios that ground our observations are episodes of mass violence, including both patterns of direct violence, such as mass killing, and indirect violence, such as state-​induced famine. We consider both to be major examples of mass atrocity. To illustrate our points, we draw on historical examples of state-​led campaigns of group destruction in Rwanda and Darfur, Sudan, or what we term “classic genocide” cases, and on examples of communist mass violence in Cambodia, in which states embark on projects of transformation that lead to mass death. The theoretical point of departure is that meso dynamics are crucial to the outcome of mass atrocities, but remain the most understudied and undertheorized level in existing scholarship (Finkel and Straus, 2012). The lion’s share of social, scientific, legal, and historical scholarship concerns national-​level dynamics, that is, government-​level decision-​ making, elite-​level consensus building (in media, military, and administrative circles), and the structural conditions that give rise to the extreme politics that underlie mass atrocity (e.g., Mann, 2005; Midlarsky, 2005; Weitz, 2003; Valentino, 2004).1 The second largest tranche of scholarship, at least among social scientists, concerns individual-​level decision-​ making and motivation to participate (or not) in such violence, i.e., studies of perpetrators (or of rescuers) (Smeulers et al., 2019).2 Less analytical attention is devoted to the space between those levels, yet we contend that such a level is crucial to understanding how and

1  For further discussion of the national-​level dynamics see Chapter 8 by Maartje Weerdesteijn and Chapter 18 by Christopher Mullins in this volume. 2  For a discussion on the role of individuals as perpetrators, bystanders, or rescuers in atrocity crimes see Chapter 12 by Alette Smeulers, Chapter 13 by Roland Moerland, Chapter 14 by Erin Jessee, and Chapter 15 by Myriam Denov and Anais Cadieux van Vliet in this volume.

236    Rachel Jacobs and Scott Straus why mass atrocities take place. This chapter aims to contribute to understanding that space in between: the meso level. In this chapter, we delineate the meso-​level conceptually, describe national meso-​level interactions in the perpetration of mass atrocities, specify three main pathways by which meso-​level actors shape mass atrocities, and then illustrate meso-​level dynamics with reference to genocide and communist cases of atrocity crimes. We argue throughout that meso-​level actors are necessary to the execution of mass atrocities, and as such, they shape how, where, when, and at what scale mass atrocities take place. Focusing on the meso-​level allows not only for a rich and comprehensive understanding of mass atrocities than would otherwise be the case, but also opens windows into thinking about rescuing and resistance. We conclude with some avenues for further research.

2.  Conceptualizing the Meso-​level Debates on what to call the “space in between,” and debates over how to delineate it, are far from settled. Broadly speaking, we prefer the term “meso-​level” to refer to the space that lies between “macro” (national) and “micro” (individual) dynamics. “Sub-​national” is an analogous term, but “sub-​national” includes everything below the national level, including micro-​and perpetrator-​level processes. “Local” is a synonym to meso, and one that can be used interchangeably. However, local often implies “locality,” as in village, community, municipal, district, and town-​level dynamics. Our conceptualization of “meso” includes those geographic spaces generally understood as “local” (i.e., villages, towns, districts) as well as a broader range of geographical spaces and actors such as regions or sub-​national units of national organizations: for example, an army brigade or police battalion. The point here is not to be dogmatic in delineating what is and is not “meso”—​other scholars may have other conceptualizations—​but rather to be transparent about the terms and conceptualizations in use in this chapter.3 In our broad conceptualization, meso-​level processes may be measured in a variety of ways. Locations include, but are not limited to, regions, provinces, sub-​national states, municipalities, towns, communes, districts, zones, villages, enclaves, informal settlements, and neighborhoods. The actors in question include governors, mayors, city councilors, leading elites at this level (politicians, educators, businesspeople, religious figures, medical professionals, and others), military officials and units below the rank of general and colonel (such as major, captain, lieutenant), municipal or regional police units, paramilitaries below the leadership level and stationed outside the country, neighborhood associations, civil society actors, and various other positions and terms that are analogous to these. We recognize there are good reasons to distinguish among these locations and actors; their roles and

3  Debates about what constitutes the “meso” and “local” and how they relate to national and global processes are not specific to the study of mass atrocities. Readers may look to Massey, D. (1994) A Global Sense of Place. Available at: http://​www.aughty.org/​pdf/​global_​sense_​place.pdf (Accessed: February 18, 2020), Merry (2006), Sassen (2001) for a couple additional examples from the globalization and human rights literatures for parallels.

Meso-Level Dynamics of Atrocities    237 significance in shaping mass atrocities vary. Further disaggregation will be important for future research, as we note in the conclusion. But for the purposes of delineating a largely understudied level of analysis in the study of mass atrocities, we think “meso-​level” is a coherent and useful category. A “meso-​level” actor usually has some authority and influence beyond an ordinary citizen, a rank-​and-​file soldier, an ordinary party member, or a militia recruit. Meso-​level actors might be thought of as intermediaries between the national-​level decision-​makers and the on-​the-​ground perpetrators and victims. That leaves a large range of actors and spaces, which is one reason why conceptually and theoretically developing meso-​level studies of mass atrocities remains an important domain for scholarship. While there are many ways to approach meso-​level dynamics, the chapter’s focus is on the dynamics of perpetrating mass atrocity. The guiding questions concern the role of meso-​ level actors in the overall commission of sustained, extensive violence against civilians. Among the questions we ask are: How essential are meso-​level actors to the perpetration of such violence? How do national and meso-​level actors interact? How do meso-​level actors shape patterns of violence in mass atrocities? And, in what ways might meso-​level actors provide a source of resistance? Our chapter will not be a comprehensive review, but rather will aim to be representative via case illustrations from Rwanda and Darfur as examples of genocide, and Cambodia, as a case of Communist atrocity crimes.

3.  National Meso-​level Interaction in the Perpetration of Mass Atrocities In our understanding of mass atrocities, the primary origins of large-​scale, sustained mass violence against civilians lie with the national actors who control a state. Mass violence in genocide cases almost always requires a sustained operation across time and across the space where targeted victims reside. In communist cases, where a state implements a massive reorganization plan, such as collectivization, state action is equally essential. Such operations are virtually impossible without the direction and authorization, or at a bare minimum the support, of a national authority, including the security forces of a state. Mass atrocity crimes of the type described in this chapter require the deployment of force for sustained periods and across multiple localities (in contrast to one-​off or sporadic massacres). Such campaigns of violence take shape typically through a joint operation of military, paramilitary, police, civilian administration, and civilian bodies. Unless states have collapsed, they control the plurality of force in territories under their jurisdiction or control. Without state direction, authorization, and, at a minimum, support, far-​flung operations of violence that engender multi-​agency coalitions of actors, including security personnel, are virtually impossible. The same is true for a state that attempts to reorganize the foundations of the economy through a communist revolution. National actors are responsible for setting such a radical reengineering project in motion. There are exceptions. A non-​state actor, such as a rebel organization, could control territory and engage in mass atrocities of the type described here, but in that scenario the rebels are state-​like and function like national actors; they are the supreme authority in the

238    Rachel Jacobs and Scott Straus territory they control. The strongest exception is arguably settler-​initiated mass violence in the context of imperial expansion. While national state coordination is possible in this scenario, settler violence against indigenous populations is likely to be coordinated at a local or regional level. In these cases, settlers themselves may act on their own; they may create militia that work jointly with local police or army; and/​or they may work in tandem with local and regional authorities. Two prominent examples in the genocide studies literature are attacks on the San populations in the Cape areas of what is now South Africa and the violence against indigenous populations in California (Adhikari, 2015; Madley, 2016). As the Cape and California examples show, the violence against indigenous groups may occur as an organized campaign or as a slow encroachment and displacement and destruction of native groups. Such settler violence does not necessarily require state direction and authorization per se, as settlers may act with a common purpose and degree of independence in a frontier space. Their joint purpose may be to displace indigenous populations in an effort to gain and secure territory; typically, however, such settlers operate with tacit, and sometimes explicit, state acceptance and support. Should states wish to prevent settlers from such violence, and commit state security resources to do so, such actions would likely halt settler mass violence. Still, independent settler violence remains a possible exception to the broad patterns and dynamics discussed here. Further, national-​level actors typically are responsible for initiating the process of escalation that leads to genocide and communist mass violence. In our understanding, both types of mass atrocity generate from elite-​level decision-​making, which in turn is shaped by security concerns and ideological orientations. Mass violence is usually a response to the perception of a threat, most often in wartime or in a period constructed by national elites as epochal struggles for survival and transformation (Valentino, 2004). In the genocide cases, national-​level political and military officials foment, orchestrate, and authorize mass violence to eliminate what they perceive as an acute danger to their state and political project. In turn, their conviction to use extreme violence as a strategic response to a threat, and the target populations they victimize or the policies they implement, stem from how they understand their political project, their core political community, and their power and how it should be wielded. Their ideational orientation shapes how they understand the problem and how they imagine responses (Straus, 2015). In the communist cases, ideology drives the decisions to reorganize society, but security concerns often determine how much violence and coercion will be used to eliminate old vestiges and to root out perceived blockages to revolution (e.g., Conquest, 1986; Kiernan, 2002; Su, 2011). In short, national-​level actors make the crucial decisions that push countries toward a trajectory of mass atrocities.4 That said, meso-​level actors are necessary for the commission of sustained, extensive violence against civilian populations, and, in some cases, for the origination of specific practices that lead to such victimization. Without meso-​level actors, most projects of atrocity crimes would not be possible. There are exceptions (such as air dropping of weapons via aircraft in particular areas), but most often meso-​level actors are essential to how national-​level directives are put into practice, as we discuss in the next section. Meso-​level actors carry out national-​level directives; they are often the ones who organize the violence in places where

4  For another example, see Robinson (2018) on how national-​level military actors authorized mass killings in Indonesia in 1965.

Meso-Level Dynamics of Atrocities    239 victims are located. Meso-​level actors find, sort, and control target populations; they are the ones who understand where people live, who they are, and how to reach them. Any ground operation putting mass violence into place will require the participation of these meso-​level actors. Meso-​level actors also concretize sometimes vague national-​level orders (such as “destroy the enemy”), and in so doing meso-​level actors interpret how to carry out such practices. In sum, collaboration between national and meso-​level actors is essential for the successful perpetration of atrocity crimes and the massive reorganization of society that can lead to mass death. That said, how meso-​level actors shape the process varies.

4.  Implications There are several implications to the analysis about the roles and importance of meso-​level actors in the perpetration of mass atrocities. One common pattern across cases of mass violence is sub-​national variation in the scope and timing of the violence itself. Violence starts at different times in different places, and violence is often more extensive in some places than in others. We suggest that meso-​level dynamics are often a reason why.5 If collaboration with the top is key, some meso-​level leaders are more and less allied with the national-​level leadership. We can expect the violence to start earlier and be more extensive where the alliance between national and meso-​level actors is tighter or more administratively integrated. The reverse is true too. By the same token, the relationship between national and meso-​level actors may explain where and why resistance to mass violence takes shape. In some regions and localities, actors may distrust national level authorities and/​or be opposed to the violence. In these cases, the violence may be slow to take root, or national-​level authorities might need to destroy the local opposition and appoint loyalists in order to initiate the violence. Here again, paying attention to meso-​level actors provides insight into the patterns of violence that emerge in mass atrocities. Similarly, meso-​level civil society actors may play a key role in how and why more people survive in a particular region. Robert Braun argues, for example, that local religious minorities were key to helping to save Jews during World War II. With exceptional data on Holland and Belgium during the war, he shows that Catholics in Protestant-​majority areas, and vice versa, were most likely to help Jews to safety or to hide them during the war (Braun, 2019). Lastly, distinguishing national-​level actors from meso-​level actors introduces some analytical space between them, which in turn allows scholars to point to different dynamics and motivations that might animate these different sets of actors. Indeed, one of the central lessons of the scholarship on political violence and civil war in the past two decades is the divergence between macro and micro dynamics (Kalyvas, 2006). One cannot infer from national-​level actors and dynamics that the same operates at the local level, and vice versa. Focusing on meso-​level actors in the perpetration of mass atrocities allows for greater specificity in the analysis of the responsibilities and motivations of different actors. 5 

This is an argument explicitly made in Winward (2019) in reference to the Indonesia 1965 case.

240    Rachel Jacobs and Scott Straus

5.  Pathways for How and Why Meso-​level Actors Matter in the Perpetration of Mass Atrocities We identify three principal pathways by which meso-​level actors matter in the perpetration of mass atrocities. They are: first, top-​down policies of violence that meso-​level actors put into place; second, from-​the-​middle dynamics where meso-​level actors escalate violence for their own independent interests; and third, information distortions by meso-​level actors about the progress of national policies that lead to deaths. We identify these pathways inductively from our reading of genocide and communist mass violence cases.

5.1. Pathway one: Top-​down policies First, in a top-​down, more centralized implementation of a nationally decided strategy of violence or of a massive reorganization plan in the communist cases, meso-​level actors are critical for putting the policy into practice. Whether via the military, the civilian administration, party officials, local elites, and others, meso-​level actors interpret or follow the national orders and transmit the violence. National-​level actors delegate authority to these meso-​level actors, or meso-​level actors opportunistically claim delegated authority, and meso-​level actors put the violence into practice. The notion of interpretation is deliberate. In many instances, national leaders orient the state apparatus toward a policy. They invoke “enemies” who must be eliminated in order to save the nation. They suggest that no one should be spared and that extraordinary times call for extraordinary measures. They might call on the party and the population to launch the Revolution. Meso-​level actors act on these directives, and they subsequently take their cues from their superiors. If they interpret “destroy the enemy” as killing all the men in a town, they then look to their superiors as to whether they are on the right path or wrong path. If they are reprimanded, transferred, remanded, or relieved of their position for the violence they orchestrate, they and their colleagues understand that the high-​level authorities wanted something different. But if they are encouraged, praised, rewarded, or untouched, they continue and usually extend the violence. There are thus unfolding sets of interactions between national-​and meso-​level actors that shape the process. National-​level leaders may not always know at the beginning what they want underlings to do concretely. National leaders may be angry, vindictive, determined to win, ideologically committed, or genuinely fearful. They also may be purposely vague so as to avoid responsibility. Meso-​level actors are often the ones who make national-​level orientations concrete; they bring about the policies, through interpretation and invention, and those practices then get endorsed at the national level. For example, national-​level actors might signal that it is time to “deliver a blow” to the enemy, “send a group away,” “get rid of the traitors,” “crush the enemies of the Revolution,” or “complete all work quotas.” Meso-​ level actors are the ones who determine what those notions mean in practice. They decide what to do. They might corral groups into

Meso-Level Dynamics of Atrocities    241 neighborhoods, execute members of a political party, eliminate local elites in the target ethnic group, burn villages, or put certain people in detention. But over time meso-​level actors may believe that national actors want more drastic measures, or they may compete with each other to see who best can carry out the wishes of their leaders. In this way, meso-​ level actors extend and escalate the violence—​or, as we discuss in the conclusion, they could resist or not carry forward the violence, if they choose to oppose national-​level authorities. But in these top-​down scenarios we expect the space for resistance to be limited: national authorities can use coercion to overwhelm and replace meso-​level resisters. Meso-​level actors have a variety of reasons for collaborating with national authorities to carry out violence. They may want to keep or advance their jobs. They may be fearful or ideologically committed. They may jump into fluid situations and opportunistically take advantage for a variety of reasons. Meso-​level actors might also compete to enact national policies better than their rivals. For this variety of reasons, meso-​level actors organize and extend the violence, thereby putting the national-​level directives into practice and sometimes escalating them. Communist projects of collectivization provide a window into these dynamics. In particular, the establishment of cooperative agriculture empowers local actors—​the leaders of cooperative farms and municipalities—​to carry out the state’s economic plan within a given community. Cooperative agriculture is not the only area, but it is the clearest example of such dynamics. These actors work on behalf of the state’s vision, but they can face tasks like the confiscation of private property, land, livestock, and crops, and the distribution of communal goods or rations with relative autonomy. Additionally, changing political dynamics allow meso-​level actors to interpret categories of enemies. This point may be more pronounced in communist cases than in classic genocide cases: in the communist cases, targets were based on political or class history, categories that are less sticky and more malleable than ethnic or national groups. As these were often newly imposed labels, they were also more changeable and more responsive to local politics. Meso-​level actors could determine for themselves who met the criteria as enemies and escalate violence against them. These political dimensions determined not only who was targeted with violence, but also who was eligible to join the party (Zheng, 2006). Once meso-​level actors make the violence concrete, their actions in turn get reinforced from the top (or not) and sometimes get copied horizontally—​other meso-​level actors come to understand what they should be doing. There is, in sum, a dynamic of interaction between national and meso-​level actors: direction and authorization from the top; interpretation, invention, and implementation from meso-​level actors; further signals from the top; and horizontal repetition from other meso-​level actors. That is one pathway by which policies of mass atrocity take shape. To be sure, in some cases, or in later periods in an episode of violence, national-​level actors leave little to the imagination of meso-​level actors. National-​level leaders’ instructions are clear, and the policy of mass violence is too. That was the case, for example, after the Wannsee Conference in Nazi Germany when the death camp operations were put into place. But we suspect that more often than not—​given that mass atrocities take shape over time and through a process of escalation—​there is a dynamic interaction between national-​ and meso-​level actors where the latter put into practice, and make concrete, the sometimes vague directions and orders from the top. Meso-​level actors thus contribute to the process of escalation that ultimately leads to mass violence; they act on behalf of national actors in

242    Rachel Jacobs and Scott Straus a top-​down fashion but they exercise some autonomy and innovation in how that process takes place.

5.2. Pathway two: From-​the-​middle escalation The second major pathway is from-​the-​middle escalation, where meso-​level actors independently intensify the violence. In this endeavor, national-​level actors might carve out a space of action for meso-​level actors; they might give a green light to crush an insurgency or root out enemies. This is similar to the first pathway described earlier, but in this second scenario, meso-​level actors take advantage of the authority delegated to them in order to carry out their own plans. In general, the meso-​level actor’s plans and interests are likely to be consistent with the interests of national-​level actors; they operate with mutual consent, but in this second pathway meso-​level actors exercise greater autonomy in the violence being carried out. In this pathway, the meso-​level actors escalate the violence; they determine a level of violence that otherwise would not have been the case and national-​level actors in turn tolerate this level of violence. The key difference between the first and second pathway is who escalates the violence. In the first pathway, the violence is more “top-​down”: meso-​level actors put the national policy into practice; they may interpret, invent, and extend the violence, but they are acting on behalf of national-​level actors with some kind of delegated authority. Their actions reflect what they understand the national-​level actors to want. By contrast, the second pathway is more “bottom-​up” or more accurately “driven from the middle.” In this situation, meso-​level actors have independent reasons (independent from national-​level actors) for escalating the violence, and they take advantage of the license given to them in order to set a level of violence that approximates their interests. In this second scenario, national-​level authorities acquiesce—​they do not try to stop the meso-​level actors; their alliance stays intact, but the impetus for the level and form of violence comes from the meso-​level actors.6 The condition most likely to produce this second pathway is where there exists a more informal alliance between national-​level actors and meso-​level actors. In these instances, the state may exercise weaker control over regional and local actors, giving these latter sets of actors greater autonomy than in a situation where the state is vertically well integrated and organized. In these more decentralized, alliance-​like circumstances, there might be diverging interests or diverging levels of intensity regarding the threat posed by a target group between national-​and meso-​level actors. That divergence can lead, in theory, in two directions. On the one hand, where meso-​ level actors have a greater desire or incentive to eliminate a target population group from an area, they may in turn capitalize on vague national-​level orders for counterinsurgency as an opportunity to perpetrate atrocity crimes. National-​level authorities in turn have the option to dial back the violence, but the impetus for extreme violence comes from the meso-​level actors. Meso-​level actors may also respond to sub-​national spatial dynamics, as Di Salvatore

6  An analogous practice is wartime rape. Elisabeth Wood has argued persuasively that rape may emerge as a “practice,” one that is initiated and driven by meso-​level organizational dynamics, such as a military unit. That practice then is tolerated at the national level (Wood, 2018).

Meso-Level Dynamics of Atrocities    243 (2016) finds with regards to minority enclaves in Bosnia. On the other hand, meso-​level actors could act as a restraint on violence; that is, they might have cross-​cutting ties with target groups, which in turn lead them to go slow in their implementation of national-​level directives (Jha, 2013). In contrast to the first top-​down scenario, meso-​level actors have more autonomy—​and hence more space for resistance or non-​escalation—​in the second pathway. Pathways one and two are not necessarily mutually exclusive, as violence in a single episode of mass atrocity could be driven “from above” and “from the middle,” as Nils Weidmann (2011) has somewhat similarly argued in the case of Bosnia in the mid-​1990s.7 In other circumstances where there are a variety of patterns of violence—​for example, in the communist cases, there are executions, purges, and collectivization—​one pattern may be driven from the top, while another from the middle. But again the key insight is that meso-​level actors have agency in the overall perpetration of mass atrocity crimes, either in executing, shaping, and reinforcing a nationally driven policy (per pathway one), or in independently driving and escalating the violence, which national authorities in turn tolerate (per pathway two). Within pathway two, competition between meso-​level actors and factions can also escalate violence. Meso-​level political actors escalate violence to eliminate their political rivals, without directives from the top. In China, as Yang Su (2011) suggests, factionalism at the meso-​level shaped the patterns of mass killings, where violence was made permissible by national-​level orders to root out the enemy. In this case, patterns of violence were the result of meso-​level political competition (Su, 2011). These dynamics are also present in the Cambodian case discussed later: in some instances, meso-​level actors took advantage of intra-​factional conflict to initiate violence on local rivals and populations they controlled.8 These dynamics can explain some of the variation in the use of mass violence across regions and across different time periods in the Cambodian case.

5.3. Pathway three: Information distortions The third major pathway is through information distortions as part of the implementation of national policies. In this pathway, meso-​level actors distort information about policies central to the regime’s aims and, in so doing, create the conditions for mass death and suffering. This occurs in two stages. First, national-​level actors call upon meso-​level actors to implement a radical measure of population reorganization, such as collectivization or mass migration. Second, meso-​level actors carry out these actions, which can, in turn, lead to widespread suffering from starvation, disease, or exhaustion. But because meso-​level

7  His terms of reference are “from above” and “from below” but his conception of “from below” is closer to ours, in which local-​level actors drive the violence in particular localities. 8  Such competition is not unique to communist mass violence cases. Chandra (2017) describes a similar pattern in the Indonesian mass killings of 1965: competition between political parties and the military at the province level influenced which actor instigated violence. While less a focus on competition per se, Winward (2019) argues that different levels of military embeddedness in Indonesian regions caused the military to depend on parties and militia. Where they depended more on these civilian meso-​level actors, the level of persecution and violence was greater.

244    Rachel Jacobs and Scott Straus actors fear retribution from national actors, including murder, they distort the realities of the policy’s progress. Rather than represent the conditions on the ground, meso-​level actors present a picture of success or a need to commit further to the policies to their superiors. In these cases, meso-​level actors are incentivized to prioritize the success of a policy over population survival. The communist cases are most likely to create the conditions that lead to this third pathway, but the meso-​level distortion leading to mass death is not unique to communist cases. In the communist cases, three main conditions shape the pathway: a) the effort to transform economies and societies through collective agriculture, which uproots populations and previous livelihood practices; b) the central role of bureaucracy in communist governance; and c) the usually repressive nature of communist rule. The decentralization of authority, often through bureaucracy, is essential in this pathway. Bureaucracy creates multiple chains of reporting that serve both to reinforce the incentives to distort information and to distance national-​level leaders from the realities on the ground. In these cases, meso-​level officials were tasked in particular with the observation of economic or societal reorganization. The same concerns applied to meso-​level actors in industry and other areas of state function as well, but the effects were most pronounced in collective agriculture because of its direct effects on the population. The structure of the system built in incentives to misrepresent and distort information. Fear of punishment or aspirations for promotion lead meso-​level actors—​leaders of cooperative farms, municipalities, or districts—​ to overreport crops, overrequisition harvests, or conceal shortages from their superiors. Lower-​level officials aimed to impress their superiors with how well the cooperatives were performing, reporting better harvests than may have been possible. This distortion was compounded as information moved up the chain. In response, national officials increased demands for grain to be collected for the state, which led to greater shortages at the local level. The third pathway is distinctive from the previous two pathways because, in this scenario, the directive is not to commit murderous violence; rather, deaths are the result of misinformation. In this scenario, national-​level actors aim to transform conditions through radical policies of social, economic, and demographic reorganization. Through the failure of these policies, which are hidden from national-​level actors through information distortions, hundreds of thousands, and sometimes millions, of civilians die. Meso-​level actors are key in the process, in that their information distortion prevents national-​level actors from realizing the extent of the policy failure, which compounds the problem and exacerbates the economic collapse that leads to mass starvation and death from disease. Two paradigmatic communist cases, China’s Great Leap Forward and Soviet Collectivization, illustrate this third pathway. Both efforts at communist revolution created structural incentives that pushed the situation toward famine. For example, in the Soviet Union, the bureaucracy’s structure itself created the incentives to overrequisition grain: the incentives for promotion or advancement within the bureaucracy led officials to take an increasing amount of grain, which created food shortages and famine (Solnick, 1999). Similarly, in China’s Great Leap famine, team leaders played a dual role because of the structure of the bureaucracy. They were both the state agent and the local representative, which meant that they were constrained by national policies, but they also were the only actor to represent the village’s political interests (Oi, 1989). In both cases, meso-​level actors’ incentives were to send back as much grain as possible, which led to starvation deaths at the

Meso-Level Dynamics of Atrocities    245 local level. In this chapter, collective agriculture in Cambodia under communism is used to demonstrate this pathway. While communist revolutionary transformation created the conditions most likely to lead to this third pathway, other scenarios are possible. One counterinsurgency strategy during civil wars is for states to create displacement camps. Such a move separates populations and potential rebel supporters from the combatants. But once placed in camps, the conditions there might deteriorate, leading to widespread death. Meso-​level actors who would run the camp are responsible for conveying information to surveyors. Were they to distort information about the actual conditions in a camp, such a distortion might exacerbate the problem and prevent any correction.

6.  Genocide Processes: Rwanda and Darfur In this section, we focus on two genocide cases, Rwanda in 1994 and Darfur in 2003–​2005.9 Rwanda is an illustration of the first, “top-​down,” pathway described in the previous section. While having its own particularities, we argue that the pathway for violence in Rwanda is typical of other classic genocides, such as the Holocaust and the Armenian Genocide. In these cases, we see top-​down direction, authorization, and orders combined with meso-​ level implementation, interpretation, invention, and extension. In general, our expectation is that this top-​down pathway will be most common among cases of genocide and similar forms of mass categorical violence, given that national-​level actors are the main actors who set such violence in motion.10 Rwanda is the selected case because of our prior research there. Darfur, arguably, is an illustration of the second pathway. While the documentation on the mass atrocity in Darfur is less extensive and conclusive, we argue that in this case meso-​level actors—​local Arab elites and Janjaweed militia fighters—​capitalized on the government’s violent counterinsurgency strategy to escalate the violence. Here the meso-​ level actors inserted their own interests, settling on a level of violence that may not have been the initial intention of the national-​level actors. The government in Sudan accepted this level of violence, and is culpable for it, but we see the incentives for genocide in Darfur lying more with meso-​level actors than with national ones.

6.1. Rwanda 1994 In 1994, following the April 6 assassination of President Juvénal Habyarimana, the interim, Hutu-​led government initiated and orchestrated a campaign of violence against Tutsi

9  We focus on this time period for Darfur because 2003–​2005 corresponds to the periods of the most intense violence in the region. 10 Mass categorical violence is large-​ scale, extensive and organized violence against civilian populations from a particular group. Genocide—​in which the effort is to destroy the civilian population group—​is a subset of mass categorical violence. These arguments are developed in Straus (2015).

246    Rachel Jacobs and Scott Straus civilians that by mid-​April became genocide.11 The key national-​level actors setting the violence in motion were from the military, the ruling MRND party, family members and associates connected to the president and his wife, and eventually the interim government that was in place by April 9. By April 12, after overcoming national-​level opposition from military and political moderates who did not want to escalate the conflict and violence, and in the face of advancing rebels, the hardliners in charge of the state had declared war on the Tutsi population of Rwanda and encouraged all loyal Rwandans to fight their “enemy.” That date is the one by which a policy of genocide was in place. By April 21, after overcoming local opposition or reluctance at the meso-​level, the violence against the Tutsi population had taken root across the national territory under the control of the state. When the violence ended in mid-​July, somewhere between 500,000 and 800,000 Tutsi civilians, or about three-​quarters of the resident Tutsi population, had been killed. This was not the only type of violence in the period; the genocidal state killed off Hutu politicians not allied to their program, and the Tutsi-​led rebels killed tens of thousands as they held territory, advanced, and later secured the country from 1990 to 1994. But the genocide was the dominant mode of violence in Rwanda in 1994.12 While national leaders encouraged, authorized, and even enforced the violence against the Tutsi population, meso-​level actors were critical to how and why the violence took place and why the violence was so swift. Rwanda is a comparatively small country with a well-​ developed administrative hierarchy, as well as a state with a long history of social control. Those geographic, institutional, and normative expectations affected the character of the violence, in particular its speed and the high level of civilian participation. However, the violence did not emanate from the capital uniformly. Instead, there was evident variation as to when the violence started in different locations. In the areas of the country where local officials and elites were most aligned with the ruling party, the violence started earliest. The areas where the violence started last were those where the plurality of local officials and elites supported the political opposition. Putting meso-​level actors into focus helps to explain why that variation in timing exists. The spread of the violence in different areas of the country can be conceptualized as cascading tipping points. At the local level, the typical pattern was that a coalition of rural local elites—​state officials, party officials, businessmen and women, clergy, teachers, or someone with local status for one reason or another—​would form and decide to support the national-​level policy of violence against Tutsis. The rural elite would then recruit or team up with men with some experience of violence or who in general saw themselves as having some brute force; party youth, militia recruits, reservists, or young toughs who “became hot in the head,” as some Rwandans say. The elite and violence specialists would then circulate through the community, recruiting men to participate in the “war effort.” They then would search house to house for Tutsis, man roadblocks to check for Tutsis (by inspecting their IDs), or organize attacks on gathering locations, such as churches, government offices, and schools. Once the local coalition formed—​that is, once the tipping point was reached and the violence started—​the violence against Tutsis was remarkably swift, efficient, and

11  The account here is based primarily on Straus (2006; 2015), Fujii (2009), Guichaoua (2015), Nyseth Brehm (2017), and McDoom (2019). 12  On the different forms of violence in this period, see Straus (2019).

Meso-Level Dynamics of Atrocities    247 participatory, owing to the intimate nature of Rwandan geography and the institutional patterns of social control in the country. The violence became the new order in the place with widespread civilian mobilization. In the areas where meso-​level officials resisted the violence at first, in particular in the central and southern parts of the country, they succeeded in holding off the genocidal violence for as many as two weeks. The pro-​genocide forces overcame the initial resistance in a variety of ways; by killing or ousting meso-​level officials, from prefects down to sector-​ (village) level councilors. In some cases, pressure from above and even pressure from peers prompted meso-​level actors to reverse course and embrace the genocidal order. The difficult question to answer is how much and in what way meso-​level actors shaped the process of violence. The variation in onset dates—​that is, when the genocidal violence started in different locations—​indicates that without meso-​level collaboration the violence did not take root. Indeed, meso-​level actors were responsible in large measure for organizing perpetrators into attack groups and generally for unleashing the violence where the target population (Tutsis) was located. Meso-​level actors also interpreted instructions, at least to a degree. “Fighting the enemy,” “fighting the Inkotanyi” (a Kinyarwandan term for the rebels), and attacking “collaborators” were interpreted as killing Tutsi civilians. Every indication is that killing Tutsi civilians is what the national-​level actors intended; they never appear to have reprimanded or punished meso-​level actors who killed Tutsi civilians. To the contrary, at least by mid-​April, they rooted out meso-​level actors who resisted the violence—​ in particular in communes in the southern and central parts of the country, where the ruling party was less popular. At a minimum, meso-​level actors who defined “fighting the enemy” and attacking “collaborators” as killing Tutsi civilians reinforced the national-​level intentions; more likely, meso-​level actors concretized vengeful and angry sentiments and violent instructions into anti-​Tutsi massacres. That in turn allowed national-​level actors to imagine a policy of Tutsi civilian elimination on a larger scale than they might have initially conceptualized. In short, meso-​level actors were essential for the successful perpetration of mass violence, and they likely helped the policy of genocide as such take shape.

6.2.  Darfur Genocide in Darfur occurred through, arguably, a different pathway. The ultimate pattern of violence had broad similarities to Rwanda though was less exterminatory. In 2003, facing an insurgency in the Darfur periphery, the national-​level political and military actors controlling the central Sudanese state opted to crush the rebels. The counterinsurgency measure focused on destroying the rebels, their actual or potential sanctuaries, and their civilian support base. The state deployed army and air force units, but also entered into alliances with local Arab populations—​meso-​level actors—​whom the state armed, equipped, and supplied with information. In the attacks that followed in 2003 through 2005, the state engaged in joint attacks with local Arab militias; the most common pattern was air raids followed by militia-​led ground attacks. All told, the scale of civilian death in the period was around 200,000; in addition, there was widespread sexual violence, property destruction, and other forms of violence inflicted on the non-​Arab populations of Darfur. The dynamics of violence are not inconsistent with the first pathway described earlier. By this interpretation, meso-​level actors acted on behalf of national authorities, interpreting

248    Rachel Jacobs and Scott Straus their authorization, direction, and support as an all-​out war on the civilian populations. However, it is also probable that local Arab groups, who had been engaged in competition for scarce resources prior to the onset of the insurgency, capitalized on the state’s green light. Seeing the war and state support as an opportunity to solve a long-​standing problem and to secure a better future, the local actors escalated the violence beyond what the national-​ level actors initially intended or would have otherwise selected as an optimal level of violence. After all, the insurgency on the periphery of the state did not pose a major military challenge to the central state in Khartoum; repression, rather than all-​out war and genocide against the non-​Arab population, would likely have achieved the state’s interests. Moreover, Sudan at the time was a large state that was weakly consolidated outside the capital; local actors had greater degrees of autonomy than was the case in Rwanda. Local actors may well have taken advantage of the counterinsurgency to change the population profile of the regions they inhabited. They had the incentive to find a more violent solution, compared to national actors, in the sense that local Arab groups were involved in an intense competition for survival over livelihood resources. Current data do not allow for a definitive conclusion, but the second pathway (of high levels of violence driven from the middle) seems probable.13 The Darfur example also shows how pathways one and two are similar, or how elements of both can be present in a single case. The emphasis in pathway one is that the impetus for mass atrocity crimes comes from the top, and meso-​level actors carry out the violence, all the while exercising some autonomy and interpretation, but largely acting on behalf of national actors. The emphasis in pathway two is that national actors provide a green light or authorization to commit violence against a target group, but the impetus for genocide and other forms of mass violence comes from the meso-​level actors. Both interpretations are possible for Darfur, and it is also possible that at different times or for different actors both scenarios were true.

7.  Communist Mass Violence Processes: Cambodia To illustrate the patterns of violence in cases of communist mass violence, we use the case of Cambodia under the Khmer Rouge (1975–​1979). Under the Khmer Rouge, an estimated quarter of the country’s population was killed (Kiernan 2002). The Khmer Rouge sought to stage a super great leap forward to expedite their transition to Communism (Locard, 2004). In doing so, they wanted to remove all foreign influence, including ethnic minorities who were considered a foreign “other”, and vestiges of modernity. The regime promoted a return to agrarian livelihoods based around the control of waterways and growing rice. In practice, this meant the evacuation of all cities and the establishment of cooperative agriculture throughout the country. While some of the violence has been deemed a genocide because of the targeting of ethnic minorities,14 the majority of those killed were targeted for class or

13 

14 

This account of the violence is based on Straus (2015, pp. 232–​272). Case 002/​02 (Summary of Judgement) 002/​19-​09-​2007/​ECCC/​TC (16 November 2018).

Meso-Level Dynamics of Atrocities    249 political identities. This case is intended to demonstrate how meso-​level actors mediated the ways communist mass violence took place, with a particular emphasis on collective agriculture and its associated famines. While the policies in question were the same nationally, the ways that they were implemented responded to local political interests. Both top-​ down processes and policy-​driven information distortion (our first and third pathways) are at work in this case. The violence across Cambodia was primarily in the countryside, carried out through direct execution and indirect means like starvation, and implemented by meso-​level actors to whom power was decentralized. This process was magnified in Cambodia, where the entire population was evacuated to the countryside, unlike other communist cases that maintained urban and rural populations. While some of the direct violence, particularly execution through the prison system, was highly centralized and hierarchical, a majority of the deaths during this period were not. Instead, a majority of deaths resulted from militia violence and starvation. Starvation, caused by the shift to collective agriculture and famine conditions that ensued, was not limited to Cambodia but rather was a central feature of Communist mass violence: communist reordering almost always includes a transition to collective agriculture, which in each case has led to large-​scale famine. The practices of collective agriculture were implemented by local actors, shaped by their interpretations of national policies. At the same time, factional competition led to political purges, which created shifts in the political dynamics that had far-​reaching repercussions. The process by which the Khmer Rouge seized power sparked the first transformation of the state. The evacuation of the cities following the Communists’ victory on April 17, 1975, was a key component of the violence committed during the Khmer Rouge period. During the evacuation, the entire urban population (approximately two million people) was removed from their homes and sent out across the country. They were simply told to leave and go to the villages of their family’s origin. This process itself was the result of a top-​down policy. However, the use of violence and the treatment of the population during the evacuations varied. The sources of that variation seem idiosyncratic. Some variation in violence can be explained by factional differences, but disorder is the more salient feature. The process of evacuation was done quickly and chaotically: the Khmer Rouge was in the process of transitioning from guerilla war to managing a state (Kiernan, 2002). The biggest source of violence was the shift to collective agriculture and the establishment of village cooperatives. Approximately half of the total deaths during this period were from starvation or disease, indirect means resulting from famine (Heuveline, 1998). As in other Communist cases, the transition to Communism included a shift from private ownership to centrally planned collective farms. However, in the Cambodian case, this meant the entire population was relocated to the countryside and put into village cooperatives. This process was decentralized and carried out through meso-​level actors at the district and sub-​district level, along with militias that operated at several subnational levels. Through the process of de-​urbanization that moved the population from cities out to the countryside, the Khmer Rouge gave rural leaders control over the livelihoods of the entire population. The process of physically removing the population from central cities reflected the decentralization of power from the center to the countryside. In the establishment of the village cooperatives, the shift to collective production follows pathway one, while the maintenance and continuation of cooperatives follows pathway three.

250    Rachel Jacobs and Scott Straus This process upended traditional livelihoods: families were split up into groups of men, women, and children, and work groups became the new unit of social organization. The establishment of village cooperatives and the scope of control over daily life as policy came from the top-​down; however, the ways in which it was put in place were determined by the meso-​level actors who interpreted these orders. Control was decentralized to local authorities depending on the regime’s interests in a given community (Jacobs, 2019). In effect, the national leaders established a policy of collectivization, which created the conditions under which mass deaths took place. This first part of the process reflects the first pathway we identified. Once the cooperatives were in place, meso-​level actors became the primary decision-​ makers over work assignments and access to rations. Meso-​level actors, the administrators of villages, sub-​districts, and districts, had authority to decide on the practices put in place under the framework of collectivization: those choices shaped who was able to survive during this period. As a result, they played the pivotal role in the mass starvations that ensued. Meso-​level actors determined both how much rice to send to the center and how much to save to feed the population. At each level, actors had incentives to send as much rice as possible to demonstrate that they were successfully meeting the center’s demands. It was critically important that the policy succeeded, which meant that meso-​level actors wanted to demonstrate an increase in production. This led to an overrequisitioning of rice and limiting how much was left for the population to eat. For example, in the northwest, traditionally the rice basket of the country, production of rice increased under the Khmer Rouge, with the introduction of an additional growing season as part of the shift to cooperative farming. Demands in the northwest were for five to six tons of rice per hectare, nearly double the requirements elsewhere in the country (Jacobs, 2019). In order to meet the new production quotas, local leaders introduced an additional growing season, as well as harsh practices to force the population to work as much as possible. Shortfalls in production were seen as an attempt to undermine the economic project (Chandler, 1999). Therefore, local-​ level leaders aimed to produce more rice and export as much as possible to their superiors, all the way up to the center. Therefore, despite the increased production, deaths from starvation were rampant throughout these areas, and more people died from indirect means than elsewhere in the country. The incentives were to demonstrate that collectivization had been a success, which compounded the problems of inhumane work requirements and dwindling rations. Meso-​level actors’ decisions were made within the framework of collectivization but reflect how the political interests of the regime shaped the way that authority was delegated, and that decentralization, in turn, shaped who suffered the worst effects of the famine (Jacobs, 2019). Collectivization more broadly is a key element of communist mass violence: while it is an indirect process of displacement, forced labor, and ultimately starvation, these are elements that take place in other types of mass atrocity, albeit more directly. A second core component of the Khmer Rouge consolidation of power was through the prison system established across the country. The escalation of violence in the prisons demonstrates the steps of pathway one, top-​down escalation. Estimates suggest that about one-​third of the deaths that took place during this period occurred in the prison system (Ea, 2005). There were approximately 200 prisons across the country from the district level up to the national level, with the notorious S-​21 prison in Phnom Penh at the top of the hierarchy. It received political prisoners from lower-​level prisons and housed the prisoners

Meso-Level Dynamics of Atrocities    251 the regime deemed the most important, although it did not issue specific demands to lower-​ level prisons. S-​21 prison was a heightened example of the prison system and demonstrates how torture, inhumane treatment, and executions escalated within the prison system under the Khmer Rouge. The prison produced an extraordinary record of each of its victims: the accused, once arrested, had to be proved guilty through confessions. Prison guards—​those who were tasked with soliciting the confessions—​were given some guidance on soliciting confessions, but above all they needed to find the prisoner guilty. Chandler (1999, p. 48) explains this phenomenon in saying that “because of the infallibility asserted by the Party Center and the secrecy surrounding S-​21, the possibilities of error, innocence, and release were all foreclosed.” Therefore, the confessions became confirmation that the regime was right; however, those working within the prisons had no limits on how they could produce those confessions. At the lower levels, prisons followed a similar hierarchical structure. Committing a low-​ level crime or being denounced by a peer would land someone in a district-​level prison; however, as the alleged crimes or suspicions got more serious—​particularly if they were believed to be trying to undermine the regime (e.g., claims of spying or being implicated by another prisoner)—​meso-​level actors would determine whether to send them up the chain of command. Officials sent prisoners up the chain of command as a way to demonstrate that they were doing their jobs effectively. Therefore, they produced false confessions—​at every level, not just at S-​21—​which led to denunciations of entire political networks. In producing the confessions, the accused would be forced to name his or her entire network, people who would then be suspected of sabotage or working with foreign agents against the regime, leading to another cycle of accusation, arrest, and confession. At each step, the likelihood of surviving prison decreased: in district prisons, people could be released after being tortured or reeducated; at the regional level, it was less likely; and at the top, it was nearly impossible. The use of confessions in the prison system had repercussions that continued to expand the scope of violence employed. A series of high-​level arrests, most notably of Koy Thuon, the former North Zone secretary, created suspicions about the allegiances of low-​ level officials across the Northern Zone (Becker, 1998; Chandler, 1999). The arrests were made at the order of senior party leadership by meso-​level actors following their directive. Following a confession, the party swept up those named in his network across the zone. More broadly, these confessions authorized an expanded use of violence in the purges of other officials named in the networks of the accused, ushering in waves of violence against low-​level officials in their zones. The effects of the purges were the strongest in the North and Eastern Zones, while other factions were left alone. While the meso-​level actors carried out the purges, they were acting in accordance with the directives coming from the senior leadership. Meso-​level actors used torture and expanded the scope of violence to demonstrate the party’s infallibility; without the need to prove the center correct, there would be no reason to use torture to produce confessions or to purge the networks named in those confessions. The nature of the prison system, and the regime itself, meant that the incentives were to use any means necessary in order to prove the party right. The escalation of violence in this instance responded to the directives of senior officials. As discussed in pathway one,

252    Rachel Jacobs and Scott Straus meso-​level actors used violence to comply with top-​down demands. The escalation of violence in this case responded to top-​down directives to demonstrate that enemies existed, were guilty, and needed to be eliminated.

8.  Conclusions In this chapter, we have argued and shown through case illustrations that meso-​level actors are critical for the perpetration of mass atrocity. They are essential for putting national-​ level directives and plans into place and for organizing the violence in the places where the targeted populations reside. Furthermore, meso-​level actors shape the process of violence themselves; interpreting what national-​level actors want and thereby making practices of violence concrete, extending and escalating the violence by capitalizing on authorization from national-​level actors, and manipulating the flow of information, which in turn informs how national-​level actors do or do not respond to situations on the ground. Throughout, national-​level and meso-​level actors interact; their interaction is crucial to how the violence unfolds. Beyond this core argument, the chapter points to some areas for future research. First, while we have focused attention on the meso-​level, that analytical category remains vast. Future research might want to disaggregate and distinguish different levels or types of actors encompassed under “meso.” Governors (and their equivalents) have different kinds of influence than mayors (and their equivalents), for example. Second, our analysis indicates that meso-​level actors have culpability in the perpetration of mass atrocities. That many international and domestic criminal trials have focused on these actors—​from governors, to mayors—​makes sense, given the analysis here, though we are quick to note that in most cases national-​level actors bear the heaviest burden of responsibility. But our analysis also indicates that different pathways of violence suggest different degrees of culpability. Where meso-​level actors are responsible for independently escalating the violence, their responsibility is arguably greater than when meso-​level actors are implementing and interpreting national-​level directives. Lastly, the inclusion of communist mass violence in this chapter shows how these cases should be brought into conversation more explicitly with genocide cases. The communist cases illustrate how meso-​level political actors shape processes of violence. Establishing collective agriculture created and relied on a new bureaucracy, which in turn empowered lower-​level actors. These new administrative officials decided who could keep enough grain to survive and they shaped who would be purged and what information passed back up to the top. While these actions differed from the specific actions that meso-​level actors took in the genocide cases, both types of mass violence point to the crucial roles that meso-​level actors played in the perpetration of mass atrocities. Additionally, the emphasis on the collectivization of agriculture presents an indirect path to mass violence, in this case a human-​ made famine on a massive scale. Inclusion of these kinds of cases deserves to be part of the conversation on mass atrocity. Future research might continue to explore similarities and difference between these direct and indirect forms of mass violence.

Meso-Level Dynamics of Atrocities    253

References Adhikari, M. (ed.) (2015) Genocide on Settler Frontiers: When Hunter-​ Gatherers and Commercial Stock Farmers Clash. Cape Town: University of Cape Town Press. Becker, E. (1998) When the War Was Over: Cambodia and the Khmer Rouge Revolution. New York: Public Affairs. Braun, R. (2019) Protectors of Pluralism: Religious Minorities and the Rescue of Jews in the Low Countries during the Holocaust. New York: Cambridge University Press. Chandler, D. (1999) Voices from S-​21: Terror and History in Pol Pot’s Secret Prison. Berkeley: University of California Press. Chandra, S. (2017) “New Findings on the Indonesian Killings of 1965–​66.” Journal of Asian Studies 76(4), pp. 1059–​1086. Conquest, R. (1986) The Harvest of Sorrow: Soviet Collectivization and the Terror-​famine. New York: Oxford University Press. Di Salvatore, J. (2016) “Inherently Vulnerable? Ethnic Geography and the Intensity of Violence in the Bosnian Civil War.” Political Geography 51, pp. 1–​14. Ea, M.T. (2005) The Chain of Terror: The Khmer Rouge Southwest Zone Security System. Phnom Penh: The Documentation Center for Cambodia. Finkel, E., and Straus, S. (2012) “Macro, Meso, and Micro Research on Genocide: Gains, Shortcomings, and Future Areas of Inquiry.” Genocide Studies and Prevention: An International Journal 7(1), pp. 56–​67. Fujii, L.A. (2009) Killing Neighbors: Webs of Violence in Rwanda. Ithaca, NY: Cornell University Press. Guichaoua, A. (2015) From War to Genocide: Criminal Politics in Rwanda, 1990–​1994, trans. Don Webster. Madison: University of Wisconsin Press Heuveline, P. (1998) “‘Between One and Three Million’: Towards the Demographic Reconstruction of a Decade of Cambodian History (1970–​ 79).” Population Studies 52(1): 49–​65. Jacobs, R. (2019) Organizing the Revolutionary State: Governance and Mass Death in Cambodia under the Khmer Rouge. Madison: University of Wisconsin, PhD dissertation. Jha, S. (2013) “Trade, Institutions, and Ethnic Tolerance: Evidence from South Asia.” American Political Science Review 107(4), pp. 806–​832. Kalyvas, S. (2006) The Logic of Violence in Civil War. New York: Cambridge University Press. Kiernan, B. (2002) The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–​1979. New Haven, CT: Yale University Press. Locard, H. (2004) Pol Pot’s Little Red Book: The Sayings of Angkar. Chiang Mai: Silkworm Books Madley, B. (2016) An American Genocide: The United States and the California Indian Catastrophe, 1846–​1873. New Haven, CT: Yale University Press. Mann, M. (2005) The Dark Side of Democracy: Explaining Ethnic Cleansing. New York: Cambridge University Press. McDoom, O. (2019) Why We Killed: Authority, Security, and Opportunity in Rwanda’s Genocide. Book manuscript, on file with author, accessed: February 2019. Merry, S.E. (2006) “Transnational Human Rights and Local Activism: Mapping the Middle.” American Anthropologist 108(1), pp. 38–​51. Midlarsky, M. (2005) The Killing Trap: Genocide in the Twentieth Century. New York: Cambridge University Press.

254    Rachel Jacobs and Scott Straus Nyseth Brehm, H. (2017) “Subnational Determinants of Killing in Rwanda.” Criminology 55(1), pp. 5–​31. Oi, J. (1989) State and Peasant in Contemporary China: The Political Economy of Village Government. Berkeley: University of California Press. Robinson, G. (2018) The Killing Season: A History of the Indonesian Massacres, 1965–​66. Princeton, NJ: Princeton University Press. Sassen, S. (2001) The Global City: New York, London, Tokyo. Princeton, NJ: Princeton University Press. Smeulers, A., Weerdesteijn, M., and Holá, B. (eds.) (2019) Perpetrators of International Crimes: Theories, Methods, and Evidence. Oxford: Oxford University Press. Solnick, S. (1999) Stealing the State: Control and Collapse in Soviet Institutions. Cambridge, MA: Harvard University Press. Straus, S. (2006) The Order of Genocide: Race, Power, and War in Rwanda. Ithaca, NY: Cornell University Press. Straus, S. (2015) Making and Unmaking Nations: War, Leadership, and Genocide in Modern Africa. Ithaca, NY: Cornell University Press. Straus, S. (2019). “The Limits of a Genocide Lens: Violence Against Rwandans in the 1990s.” Journal of Genocide Research, 21(4), pp. 504–​524. Su, Y. (2011) Collective Killings in Rural China during the Cultural Revolution. New York: Cambridge University Press. Valentino, B. (2004) Final Solutions: Mass Killing and Genocide in the 20th Century. Ithaca, NY: Cornell University Press. Weidmann, N. (2011) “Violence ‘from Above’ or ‘from Below’? The Role of Ethnicity in Bosnia’s Civil War.” Journal of Politics 73(4), pp. 1178–​1990. Weitz, E. (2003) A Century of Genocide: Utopias of Race and Nation. Princeton, NJ: Princeton University Press. Winward, M. (2019) Security Entrenchment and the Dynamics of Politicide: Evidence from Indonesia, Ph.D. thesis, Department of Political Science, University of Toronto. Wood, E. (2018) “Rape as a Practice of War: Toward a Typology of Political Violence.” Politics & Society 46(4), pp. 513–​537. Zheng, X. (2006) “Passion, Reflection and Survival: Political Choices of Red Guards at Qinghua University, June 1966–​July 1968.” In: Esherick, J., Pickowicz, P., and Walder, A. (eds.) The Chinese Cultural Revolution as History. Stanford, CA: Stanford University Press, pp. 29–​63.

CHAPTER 11

Detention, Tort u re , Disappeara nc e The Crimes of Atrocious Organizations Susanne Karstedt 1.  Introduction The term and concept of “atrocity crimes” is a most recent and exceptionally successful terminological innovation in the area of international crime and justice. It was first introduced by David Scheffer, previously U.S. Ambassador-​at-​Large for War Crimes Issues, in 2002 (Scheffer, 2002). Scheffer’s priority was to improve prevention of and intervention into events of mass violence, but he assigned equal importance to the crimes below the threshold of mass violence as, for example, looting, forced displacement, deportation, and persecution of groups. Within a decade, the term has been widely adopted, for instance by the Task Force of the European Union (2013),1 in 2014 by the United Nations with its new “Framework of Analysis for Atrocity Crimes,”2 as well as by the UN Secretary General (2015) in his Report.3 The United Nations’ Atrocity Crimes Framework provides a widely accepted definition of atrocity crimes: “the term ‘atrocity crimes’ refers to three legally defined international crimes: genocide, crimes against humanity and war crimes,”4

1  Task Force on the EU Prevention of Mass Atrocities (2013) “The EU and the Prevention of Mass Atrocities: An Assessment of Strength and Weaknesses.” Foundation for the International Prevention of Genocide and Mass Atrocities. Available at: http://​massatrocitiestaskforce.eu/​Report_​files/​The%20 EU%20and%20the%20prevention%20of%20mass%20atrocities%20-​%20an%20assessment%20of%20 strenghts%20and%20weaknesses.pdf (Accessed: August 1, 2019). 2  United Nations (2014) Framework of Analysis for Atrocity Crimes. A Tool for Prevention. New York: United Nations Office on Genocide Prevention and the Responsibility to Protect. Available at: https://​ www.un.org/​en/​genocideprevention/​documents/​about-​us/​Doc.3_​Framework%20of%20Analysis%20 for%20Atrocity%20Crimes_​EN.pdf (Accessed: March 11, 2020) (UN Atrocity Crimes Framework). 3  United Nations (2015) General Assembly: Report of the Secretary General. New York. A/​70/​1. 4  UN Atrocity Crimes Framework, p. 1.

256   Susanne Karstedt independent of whether they are committed in international conflict, internal conflicts, or even in a country not involved in conflict, like in cases of torture or extrajudicial killings. Atrocity crimes represent collective wrongdoing, and “typically scores . . . of crimes linked through complex associations of individual leaders and subordinates acting with a common purpose” (Scheffer, 2016a, p. 108). They comprise a large variety of forms, and include crimes committed by individual offenders, by powerful actors, as well as by corporations and other organizations, and through concerted efforts by their members.5 It therefore “makes criminological sense” to look in particular at the “organizational context” in which perpetrators of atrocity crimes operate (Brants, 2007, p. 321). The Holocaust epitomizes the organized, corporate, and bureaucratic nature of atrocity crimes. The Nuremberg Trials were designed to address these crimes as collective wrongdoing and “collective criminality” (van Sliedregt, 2012). With the Gestapo (Secret State Police), the SS (Schutzstaffel), the Security Service, as well as the Ministry of Justice, the prosecution at the Nuremberg Trials had identified those state agencies and organizations that had been deeply implicated in the Holocaust, and in all types of “administrative violence” (Tyner and Rice, 2016). In contemporary theaters of mass atrocities and violence, police and security forces, as well as the military, are main perpetrators and form the core of the “administrative bureaucracy of evil” (Crenzel, 2018, p. 273). This applies to the South African apartheid regime (Foster et al., 2005; Lamb, 2018), repressive regimes in Latin America, such as in Brazil, Chile, Argentina, and Guatemala, (Weld, 2014; Aguilar and Kovras, 2019) as well as to the conflicts and atrocities in Uganda and Sierra Leone (Arnould, 2019), and former Yugoslavia (Aitchison, 2014). Combined and linked through collaboration, these agencies form the hub and organizational context of an emerging apparatus of atrocity. When atrocity crimes become an established part of their organizational targets and strategies, routines, and managerial performance, they transform into what can be termed “atrocious organizations” (Cavazos, 2013). The police, security forces, and the military are main actors in state repressive actions, and this has distinctly shaped the dominant pattern of atrocity crimes that they execute systematically, routinely, and over long periods of time. These atrocity crimes include detention and internment in camps, enforced disappearances and extra-​judicial killings, systematic torture, and forced displacement, often closely connected in the handling of just one case. As agents of state repressive power, they “cloak their activities in a mantle of pseudo-​legality that . . . [makes them] appear, at least to the outside observer, to follow legitimate patterns of violence” (Ron, 1997, p. 298). As such, these atrocity crimes in their different facets are a distorted reflection of the legitimate functions of law enforcement and security agencies, for example when torture becomes part of regular interrogation practices (Huggins et al., 2002). Notwithstanding this cover of legitimacy, they operate in secrecy and shield their operations from the outside world (Aguilar and Kovras, 2019). Consequently, estimates of the victims of these crimes, and at the hands of atrocious organizations, remain dark figures for long periods after the conflicts and atrocities came to

5  The

majority of atrocity crimes are committed by states, and by and within state agencies, in a systematic way and on a large scale (Karstedt, 2014). However, some crimes, like war crimes, may be committed by individuals or small groups who do not comply with military orders and laws, or act against such orders.

Detention, Torture, Disappearance    257 an end.6 Until now, there are neither precise numbers for those who were in detention nor of those who died in detention in Indonesia between 1965 and 1979 (Robinson, 2018, pp. 210 -​212). The Cambodian victims who died from the impact of deportation, starvation, and internment, rather than direct killing, can only be roughly estimated at half of all deaths during the mass violence between 1975 and 1979 (DeFalco, 2011, p. 143, fn. 8). Estimates of enforced disappearances in Argentina and Chile have substantively changed over time (Crenzel, 2018; Aguilar and Kovras, 2019). Further, persecution and detention as part of major events of mass violence have been ignored, as for instance the arrest and imprisonment of German Jews between 1933 and 1939 (Wünschmann, 2010; Dillon, 2015) and the large number (more than 40,000) of operative labor and concentration camps until 1945, or the continuous repressive state action in the wake of the genocide in Rwanda (Straus, 2019). This contribution aims at understanding atrocious organizations and the atrocity crimes that are typically committed by and in these organizations. The focus is on the police, security forces, and criminal justice system generally, as these state agencies most distinctly represent the type of atrocious organization. In the first section, these organizational contexts and related atrocity crime patterns will be conceptualized. The following section gives a historical overview of the involvement of these organizations and the distinct patterns of atrocity crimes since their first acknowledgement by prosecutors and judges at the Nuremberg Trials after World War II until today. I then describe the modus operandi of atrocious organizations and analyze the process of how legal and “ordinary organizations” transition into atrocious ones. This includes shifts in interagency cooperation, membership, and culture. Three different groups of perpetrators in the context of atrocious organizations are briefly characterized: “white,” “gold,” and “grey collar” workers (Allen, 2005; Brants, 2007). The contribution concludes with an overview of problems and prospects for prevention, intervention, and justice. These types of atrocity crimes are documented in lists, files, and records of the organization recovered from archives as in Cambodia (S-​21: Chandler, 1999; Tyner, 2018) or Guatemala (Rothenberg, 2012; Weld, 2014).7 This material allows for the reconstruction of the functioning of the apparatus of atrocity, and the emergence of atrocious organizations, and is used here.

2.  Defining Atrocious Organizations and Their Crimes Atrocious organizations are not the only collectives that commit these types of atrocity crimes. Paramilitary groups, whether close to the state machinery or not, warlord groups, or even organized crime groups are regularly involved in such types of crimes (for, e.g.,

6  Documentary evidence of the actions of the military in Indonesia has become available half a century after the atrocities happened (Melvin, 2017; see also Chapter 34 by Jess Melvin and Annie Pohlman in this volume). The archives of the National Police of Guatemala were discovered literally by accident when a fire broke out in the neighborhood. See Archivo Histórico de la Policía Nacional (AHPN) (2013) From Silence to Memory: Revelations of the AHPN. Eugene: University of Oregon Libraries (AHPN 2013). 7  See also AHPN 2013.

258   Susanne Karstedt Colombia see Civico, 2016).8 What sets atrocious organizations as defined here apart are three characteristics: First, it is the scale, continuity, and systematic involvement in these atrocity crimes. Second, they are part of the legal and legitimate machinery of modern states and operate under the “cloak of pseudo-​legality” (Ron, 1997, p. 298), ostensibly as part of legal procedures. Finally, detention and disappearances, torture, and killings involve the cooperation of state agencies beyond the realm of security forces, including hospitals and morgues.9 This secretive collaboration between diverse agencies is presumably less available to other groups, like paramilitaries, who operate outside of the boundaries of the state apparatus proper. As Brants (2007, p. 315) points out, the criminology of corporate crime can provide insights that help in understanding atrocious organizations and their crimes. First, this concerns the “bureaucratic nature of organizations” (Brants, 2007, p. 315) in which the crimes are committed. This includes the division of labor and dispersion of responsibility; the command lines and complex associations between leaders and subordinates, and between different managerial levels; and a “middle management” that monitors and controls progress toward organizational goals and adapts routines toward goal achievement (Brants, 2007, p. 321). Overarching organizational goals are pursued with denial of harm for victims, as Tyner and Rice (2016) report for the Khmer Rouge regime’s food rationing in Cambodia. Second, organizations shape a collective mentality that functions as guidance and legitimation of action and choices, both for decisions at the level of the organization or corporation, as well as for the individual decision maker. Corporate culture, for example within a police force or security apparatus, is well known for shaping daily operations and routines, legitimate as well as criminal ones. Legitimate actions exist side-​by-​side with criminal actions, covering and justifying them. This facilitates the commission of atrocity crimes under a veil of “pseudo-​legality” externally and “honesty” internally. In atrocious organizations these crimes are “ordered, encouraged, favored or tolerated” (van Sliedregt, 2012, p. 28), and they provide the motivation, opportunity, and means for its members to commit these crimes (Smeulers, 2019). As such, they function as “consensus-​producing machinery in society” (Brants, 2007, p. 315), and elicit support from their own members as well as from a range of social groups, or at least are capable of securing widespread tacit consent (Argentina: Sheinin, 2012; Crenzel, 2018).10 Other scholars have identified atrocity crimes committed by police, security forces, and criminal justice agencies, often in collaboration with the military as “administrative violence” or “administratively-​enforced violence” (Tyner, 2014, p. 71; Tyner and Rice, 2016).

8 

See also Chapter 16 by Uğur Ümit Üngör in this volume. in Argentina “included professionals who participated fully in the terror apparatus including physicians, priests, military officers and parents who welcomed stolen children into their homes as ‘adopted’ ” (Sheinin, 2012, p. 10). For further discussion on Argentina see Crenzel (2018) and Aguilar and Kovras (2019). For similar findings in Guatemala see AHPN 2013, pp. 267–​289. 10  Atrocious organizations as defined here are more than just the “dark side of organizations” as described by Diane Vaughan (1999). Perhaps closest to our conceptualization is Vaughan’s description of “misconduct” as routinized non-​conformity in organizations, and non-​conformist, deviant, or criminal practices of members in pursuit of the organization’s goals. What sets atrocious organizations apart is the incorporation of atrocity crimes into their set of goals. A small body of organization science studies addresses this, such as Allen (2005), Stokes and Gabriel (2010), Clegg et al., (2013). 9  Collaborators

Detention, Torture, Disappearance    259 Administrative violence is a method of enforcement of repression of groups and activities—​ manifesting, for example, in forced displacement, disappearances (Aguilar and Kovras, 2019), or detention. It is also a means of reinforcing the power of the state and its monopoly of violence through torture and extra-​judicial executions. Tyner and Rice (2016) further differentiate between direct violence and indirect violence. Direct violence is an act of violence executed by perpetrators against individuals, and includes killings, torture, and enforced disappearances (often as a consequence of the former, see Aguilar and Kovras, 2019). Extra-​judicial killings at the hands of the state security apparatus are frequently committed unhidden from public view, as were police massacres in South Africa during the 1980s (Lamb, 2018), and public executions in Chile after the coup in 1973 (Aguilar and Kovras, 2019, p. 441). Indirect violence refers to mass detention, deportation, starvation, and other forms of persecution. The execution of indirect violence includes massive force and threat by atrocious organizations, has often lethal consequences for the affected population, and can lead to direct violence, which is then executed in camps and detention centers (Tyner et al., 2018). Fariss and Schnakenberg (2014) show for a global sample of 195 countries between 1981 and 2006 that, in fact, these manifestations of both direct and indirect violence and state repressive actions are closely related. They form a cluster apart from other types of non-​violent repressive action and are related over time. Thus, torture, imprisonment, and disappearances lead to killings in the following year, and torture, detention, and killing lead to disappearances, indicating the interdependence as well as complementarity among these atrocity crimes. This pattern is well documented for the police forces in Guatemala,11 for Argentina (Aguila, 2010; Aguilar and Kovras, 2019), and for Chile (Aguilar and Kovras, 2019). This pattern of administrative violence is apparent for the repressive regimes in Latin America between the 1970s and 1990s, but also in other cases from around the globe, such as Indonesia and Rwanda. Both Chile and Argentina engaged in massive repressive actions by security forces, with Chile starting with public executions and killings, and Argentina epitomizing the more secretive usage of disappearances, torture, and killings (Koonings and Kruijt, 1999; Aguilar and Kovras, 2019). In the civil war situation in Guatemala, torture, disappearances, and killings at the hand of the police and security apparatus preceded the genocide against the indigenous Maya population, which occurred in part due to state escalation of violence after previous repressive efforts by the state failed to end the conflict.12 After the genocidal massacres ended, the security forces continued to commit atrocity crimes (Rothenberg, 2012; Brett, 2016, pp. 41–​47). In Indonesia, persecution and detention at the hands of police, security forces, and less and less by the military, lasted for more than a decade after the actual killings had ended. Detention camps and facilities were first set up by the military and police and used beside established prisons. Later they were transferred to and normalized within the criminal justice system (Robinson, 2018, pp. 208–​230). After the genocide in Rwanda, ongoing persecution of the Hutu population in Rwanda and adjacent states has claimed numerous victims of detention, torture, and killings at the hands of security forces and the military (Straus, 2019).

11 

12 

AHPN 2013, pp. 323–​431. See also Chapter 36 by Naomi Roht-​Arriaza in this volume.

260   Susanne Karstedt

3.  Historical and Contemporary Atrocity Crime Patterns The Nuremberg Trials after World War II were explicitly designed to make the atrocious organizations that had planned and implemented the genocide accountable.13 The final verdict by the International Military Tribunal which declared the SS and SD (Security Service) and the Gestapo “criminal organizations” (Priemel and Stiller, 2013, pp. 761–​764), acknowledged the large-​scale, systematic, and organized commission of atrocity crimes by these organizations. In addition, individual representatives of the Gestapo and Ministry of Justice stood trial for orchestrating repressive operations in the occupied countries, including deportation, detention, killings, and enforced disappearances; these were the so-​called Night and Fog operations, which are today seen as a precedent of enforced disappearances committed in the second half of the twentieth century (Aguilar and Kovras, 2019, n. 1, p. 449). Systematic torture, enforced disappearance, and targeted killing characterized the involvement of the police, security forces, and parts of the justice system in Latin America between the 1970s and 1990s, in Indonesia between 1965 and the end of the 1970s (Robinson, 2018, pp. 6–​12), and in South Africa between 1970 and 1990 (Foster et al., 2005, Lamb, 2018). Both the Cold War and anti-​colonial movements gave rise to an intensive global exchange of practices and training among military, security, and police forces. For instance, the Guatemalan security forces (including police) were advised and trained by U.S. personnel, who then were bystanders when these organizations descended into atrocious organizations (Weld, 2014, pp. 94–​102 and pp. 131–​134). The diffusion of the practice of disappearances to the South American continent had its origin in the former French colonies and the war in Algeria in the 1950s. Members of the French military and security forces taught and trained in military and police academies throughout the continent (Aguilar and Kovras, 2019, p. 441). Police, security forces, and criminal justice organizations were tasked with executing what was accepted and known as official policy of the regime. As regime repression increased Latin American authoritarian states took to clandestine operations rather than open and visible forms of violent repression (Aguilar and Kovras, 2019).14 Traditional police forces as well as numerous newly established security outfits and “special forces,” often in collaboration with and guidance from the military, conducted campaigns of state terror and persecution over a long period of time (Koonings and Kruijt, 1999). In Argentina (Aguila, 2010; Crenzel, 2019) and Chile (Aguilar and Kovras, 2019), mainly urban areas and regional centers were the focus of activities, while in Colombia (Civico, 2016) and Guatemala (Rothenberg, 2012), rural areas were equally sites of these atrocity crimes. In Indonesia, mass detention and imprisonment for indefinite periods characterized the repressive and criminal policies of the military in conjunction with police, security forces,

13  The

crime of genocide was not among the four charges at the International Military Tribunal (IMT) as it had not been established yet in international or national criminal law. The defendants were prosecuted for war crimes and crimes against humanity for their involvement in the Holocaust. 14  For example, for Guatemala see AHPN 2013, pp. 105–​184; Weld (2014, pp. 91–​118).

Detention, Torture, Disappearance    261 and regular criminal justice (Robinson, 2018, pp. 208–​236). In Cambodia, security, police forces, and the state bureaucracy engaged in cycles of detention and killings, as manifested in the functioning of the S-​21 detention center, where these operations were a substantive part of the mass killings (Chandler, 1999, p. 3; Tyner, 2018). Enforced disappearances epitomize the typical cluster of atrocity crimes committed by these organizations. Disappearances are based on the denial of a crime, mostly torture, killings, and illegal detention, at the hands of regular police and security forces and under the cloak of “pseudo-​legality”; they are therefore indicative of the wider usage of torture, detention, and killings by these institutions. According to Aguilar and Kovras (2019, p. 442) enforced disappearances emerged as a “new variant” of atrocity crimes in the second half of the twentieth century. They were first widely used by authoritarian regimes in Latin America, particularly Argentina, where police, security forces, and the military executed these policies and were responsible for more than 30,000 disappeared victims. Clandestine violence and disappearances were and are adopted by repressive regimes in order to avoid international scrutiny and accountability, as well as reputational damage. According to Aguilar and Kovras (2019, p. 441), “the Argentine military undoubtedly took note of the harm to the international reputation of Pinochet following public executions in Chile.” Disappearances presently occur in a wide range of contexts, including both internal conflicts and repressive regimes. They constitute a global problem with a decidedly local face, as types of crimes, actors, and interagency collaborations differ across countries and contexts. In 2017, the UN Working Group on Enforced or Involuntary Disappearances counted 91 states facing the problem of enforced disappearances, which includes both historical and contemporary unresolved cases.15 Recent reports by Amnesty International name Syria, Sri Lanka, and Zimbabwe as countries with significant numbers of enforced disappearances.16 The 2019 report of the UN Working Group on Enforced or Involuntary Disappearances further lists Burundi, Egypt, Algeria, Sudan, Iraq, Pakistan, India, Timor-​ Leste, Philippines, and Russia with substantive numbers of unaccounted-​for cases.17 The highest numbers of unresolved cases are documented for Latin American countries. They reflect the widespread usage of enforced disappearances in this region since the 1970s, as well as the failure of subsequent governments to probe into the activities of security forces and make those accountable who were responsible (Crenzel, 2018; Arnould, 2019). This includes Argentina (3,084 cases), Guatemala (2,897 cases), El Salvador (2,284 cases), Peru (2,361 cases), Colombia (971 cases), and Chile (785 cases).18

15  UN Human Rights Council (2017) Working Group on Enforced or Involuntary Disappearances. Report of the Working Group on Enforced or Involuntary Disappearances, A/​HRC/​36/​39 31 July 2017. 16  Amnesty International (n.d.) Enforced Disappearances. Available at: https://​www.amnesty.org/​en/​ what-​we-​do/​disappearances/​ (Accessed: February 2, 2020). 17  UN Human Rights Council (2019) Working Group on Enforced or Involuntary Disappearances. Report of the Working Group on Enforced or Involuntary Disappearances, A/​HRC/​42/​40 30 July 2019, pp. 9–​14. 18  Mexico is listed with 357 cases; these include enforced disappearances at the hands of drug cartels as well as of police, security, and military forces.

262   Susanne Karstedt

4.  Atrocious Organizations and Their Modus Operandi Atrocious organizations are defined by the scale, continuity, and systematic involvement in atrocity crimes. Police, security, or military forces become atrocious organizations when committing atrocity crimes is part of their daily operations, is embedded in their management strategies, and systematically linked to strategic aims and outcomes of organizational activity. Though the scale and extent of the crimes committed is important, it is the systematic and routinized usage of detention, torture, killings, and disappearances that characterizes atrocious organizations in the first instance. Thus, these crimes are normalized in the activities, values, and beliefs of their members across the organizational hierarchy, a process that is facilitated by the cover of pseudo-​legality and legitimacy of these organizations. The descent into atrocity might take several years, as documented for Guatemala19 (Weld, 2014, pp. 91–​118) be rather precipitous when a repressive regime takes over, as in Argentina or Chile, or fueled by escalating conflicts as in the former Yugoslavia. The process of normalization of atrocity crimes in these organizations “render[s]‌reality ‘opaque’ and, in the case of [atrocity crimes] deprive[s] acts of violence of their criminal nature and victims of their actual status” (Brants, 2007, p. 315). Besides specifically targeted operations and procedures, atrocity crimes are part of the day-​to-​day operations of police or security forces. For instance, the forces of the Guatemala National Police were increasingly tasked with repressive actions against opponents of the regime. “Securing” neighborhoods and investigating suspicious activities and individuals turned routine patrols into campaigns including extra-​judicial killings, disappearances, and torture (Weld, 2014, pp. 125–​135).20 Such normalization is further evident in the documentation of crimes, with the production of a vast array of lists, files, records of interrogations, and all other types of organizational documents in order to justify the operations and provide evidence of the achievements of strategic objectives.21 Atrocity crime patterns reveal significant similarities between atrocious organizations and their modus operandi; as Robinson (2018, pp. 212–​213) states, mass detention in Indonesia did not differ substantially from “Stalin’s Soviet Union, Mao’s China, Franco’s Spain or the military regimes in Argentina and Chile.” Differences between the emergence, shape, and operations of atrocious organizations are related to the context in which these organizations function. Generally, two distinct crime patterns can be identified. The pattern of targeted persecution, enforced disappearances, and extra-​judicial killings in conjunction with torture is representative of the Latin American dictatorships and authoritarian regimes, as described in the previous sections. The discovery of the archives of the National Police in Guatemala in 2005 has provided insights into their operations. Cases

19 

AHPN 2013, pp. 105–​227. See also AHPN, 2013, pp. 245–​299. 21  See for Cambodia: Chandler (1999) and Tyner (2018). For Guatemala: AHPN 2013, pp. 50–​104; For Argentina: Crenzel (2019). 20 

Detention, Torture, Disappearance    263 that have been fully documented (Guzmán, 2011; Guberek and Hedstrom, 2017)22 show the lines of command and involvement of different hierarchical levels in atrocity crimes, and the types of “pre-​emptive” violence used by the police, including killings. The persecution and rounding up of suspects were based on information from various security outfits that operated under a series of military and authoritarian regimes; turning targeted victims into informers was widely used in this process. The operations then were conducted under the cover and in the context of “normal” policing duties. Suspects were kidnapped, when fleeing shot, others were murdered, maltreated, and tortured, and bodies made disappeared, left at the side of the road, or delivered to local hospitals and mortuaries. These operations resulted in large numbers of enforced disappearances, with many cases still unresolved today.23 Brett (2016, p. 36; Weld, 2014, p. 132) estimates these atrocities at 7,000, which includes 6,000 cases of enforced disappearances during the conflict from 1978 to 1996. Mass detention and mass killings epitomize the other distinct pattern of atrocity crimes and involvement of atrocious organizations. The scale of mass detention requires planning and coordination at the highest levels, and the involvement and collaboration of multiple organizations, ranging from the military, security forces, and police, to the engagement of vigilantes and paramilitary groups (Indonesia: Robinson, 2018, p. 212; former Yugoslavia/​ Bosnia Herzegovina: Aitchison, 2014). Institutions of regular criminal justice become part of it, as police herd detainees into camps and prisons, where they are often held in secret and makeshift detention centers erected by the forces carrying out the campaign. Mass detention campaigns target different segments of the populations in waves one after the other, as for instance in Stalin’s Gulag (Vaksberg, 1991), during the Cultural Revolution in China (Dikötter, 2017), or in Cambodia (Tyner, 2018). Mass detention and killings represent alternating ways of repressive terror, both in spatial and temporal patterns. For instance, in regions in Indonesia, where victims were mostly killed, smaller numbers were detained and vice versa. According to Robinson (2018, p. 227) this spatial pattern is indicative of a lack of detention facilities in the area, which fueled immediate killings. For the detention center S-​21 in Cambodia, the temporal pattern shows a “series of ever-​shortening periods of detention as the prison population increased” with another wave of mass detention (Tyner, 2018, p. 162). First, members of the previous military and civilian government were targeted, with shorter periods of detention and immediate executions. In a second phase, the Khmer Rouge directed attention to their internal enemies; cadres of the Khmer Rouge were detained for a longer period, and detainment differed significantly between the regions from where the prisoners came (Tyner, 2018, pp. 157–​159). These spatial and temporal patterns are indicative of the challenges that mass detention poses to the organizations involved. The military is mostly not prepared for detaining large numbers of people for extended periods, the existing prison system is generally not laid out for mass detention, and building a system of mass detention takes time. These patterns

22  See also AHPN, 2013, pp. 323–​458. The documents were decisive in bringing those responsible to justice before national courts (Guzmán, 2011). 23  UN Human Rights Council (2019) Working Group on Enforced or Involuntary Disappearances. Report of the Working Group on Enforced or Involuntary Disappearances, A/​HRC/​42/​40 30 July 2019, p. 11.

264   Susanne Karstedt therefore reflect managerial strategies to address these challenges, with killings ultimately emerging as a solution to organizational and logistical problems. Further, as existing organizations are incapable of providing the facilities required by mass detention, high numbers of victims in mass detention succumb to illness, starvation, and abuse. Decisions are often taken at the middle management level in order to run these organizations in an “effective way,” as judicial testimony on the Holocaust, or from the Extraordinary Chambers in the Courts of Cambodia (ECCC), reveals. The early concentration camps at the beginning of the Nazi regime were improvised from below rather than meticulously planned from above, and the blueprint of this atrocious organization developed in a process of trial and error. These camps were training grounds and “a schooling in violence” for the SS, thus enabling the proliferation of organizational structures, culture, and trained membership for the development of future atrocious organizations, including the SS itself (Dillon, 2015). Mass internment of the Jewish population in ghettos in occupied Poland posed similar challenges to the German civilian government, where District Chiefs then cooperated with the SS and military in the planning and execution of mass murder of the Polish Jewish population (Roth, 2009, pp. 175–​220). Interrogations in mass detention are conducted with massive torture and abuse of the detainees, and often take place in secret facilities, such as converted commercial or residential buildings and outside of police or other criminal justice institutions. The testimony of former prisoners, and evidence from human rights organizations, archives, and judicial procedures, indicate a common pattern of the spread of secret facilities. In Indonesia as well as in Latin American countries, they were “virtually in every town . . . , and the large cities . . .had several” (Robinson, 2018, p. 215; Argentina: Aguila, 2010; Brazil: Huggins et al., 2002; Guatemala: AHPN, 2013). However, these secret facilities were not unbeknown to the population. As Hernawan (2016) describes for West Papua, the fact that these facilities often were wooden structures made them quasi-​public spaces, and the population was well aware of what went on inside. Interrogation under torture and abuse is an organizational mechanism of propagating mass detention. Detainees are not only forced to confess to their own “crimes” but to provide lists of collaborators, maps of organizations, and networks, whether these actually exist or not. These “lists” fuel the process and sustain it over long periods of time. The pattern is characteristic of repressive regimes rather than of open conflicts, civil wars, and agencies operating under time pressure. Typical cases include Stalin’s purges (Vaksberg, 1991), the Chinese Cultural Revolution (Dikötter, 2017), Latin American countries, Indonesia, and Cambodia. The lists are delivered by the organization to the command level as evidence of its effectiveness and the work of its personnel. In this process, victims with higher ranks are “valuable assets” for the management, which explains longer periods of detention and more intensive abuse and torture in this process, as Chandler (1999, pp. 157–​160) documents for a heartbreaking case from S-​21. Far from representing organizational paranoia, these lists are the result of rational decision making and strategic operations that have the additional advantage of supporting the reputation of the organization and its members and management (S-​21: Chandler, 1999; Tyner, 2018). Under all kinds of physical and psychological duress, victims become informers, and in that capacity continue to work for their captors and the organization well after their release. Atrocious organizations rely to a considerable extent on the work and collaboration of their victims, as will be shown in section 6. We now turn to the process in which atrocious organizations evolve.

Detention, Torture, Disappearance    265

5.  Descent into Atrocity: From Ordinary to Atrocious Organizations Atrocious organizations are mostly not set up as such from the start; rather they transform into atrocious organizations as atrocity crimes become “normalized” in their routines and management strategies. The SS and Gestapo are among the few organizations that from the start were installed as criminal enterprises operating outside of the law. This raises the question—​not dissimilar from individual perpetrators of atrocity crimes—​how “ordinary” organizations like police forces transition to “atrocious organizations.” This process is well documented for police and security forces: for Bosnia and Herzegovina (Aitchison 2014), for Guatemala24 (Weld, 2014, pp. 91–​118, 119–​152; Brett, 2016), for other repressive regimes in Latin America (Koonings and Kruijt, 1999; Davenport, 2007; Aguilar and Kovras, 2019), for Indonesia (Robinson, 2018; Melvin, 2017), and for the Apartheid regime in South Africa (Lamb, 2018). The process can also be reconstructed “backwards” when police, security, and military forces return to “normality” in transitional and democratic societies. Arnould and her colleagues (Arnould, 2019; Arnould et al., 2020) have distilled characteristics of this process for Latin American (Brazil, Chile) and African countries (Sierra Leone, Uganda). Both directions, the transition toward and out of atrocity, suggest three processes: de-​professionalization of police forces, militarization, and the establishment of multiple agencies and security outfits with parallel and intersecting lines of command. Aitchison (2014, 2016) identifies three processes which drove the transformation of police forces into atrocious organizations in Bosnia Herzegovina during the war in the former Yugoslavia: democratization resulting in political and ethnic polarization; politicization and de-​professionalization; and militarization. These developments took place within a rather short time frame between the first multi-​party election in 1990 and the involvement of the police in major incidents of mass killings in autumn 1992, as well as in detention, including torture and abuse. The process of democratization and ethnicization started in 1990, when political parties were established along ethnic lines, and key positions in the administration were distributed among the parties, and consequently among ethnic groups. This particularly affected the police forces, which were deemed of utmost importance by politicians when ethnic tensions rose at the beginning of the 1990s. Police leadership appointments were increasingly made on an “ethno-​political basis,” normal procedures were ignored, and police officers reappointed who had previously been dismissed for criminal activities. “Stacking” the police force “with party supporters” (Aitchison, 2014, p. 13) created ethno-​ political factionalism within the police forces, which crowded out professionalism in the leadership, management, and lower ranks. Police officers throughout the ranks were “loyal and sympathetic” to the aims of the ethnically based parties and their politicians rather than dedicated to even-​handed and professional policing of the mounting tensions (Aitchison, 2014, p. 12). This process was accelerated and exacerbated by “uncontrolled recruitment at lower levels and absence of police training” (Aitchison, 2014, p. 16), which further changed

24 

AHPN 2013, pp. 105–​227.

266   Susanne Karstedt organizational culture and values and provided an open space that facilitated the transition toward atrocity. The intensifying ethnic conflict prepared the police for militarization, which evolved along two lines. On the one hand, the police were directly involved in combat; they received combat weapons and training from the military. On the other hand, they closely collaborated with the military and paramilitary units. With the expansion of reserve forces, the militarized police force interchangeably used police and military uniforms. Special units were formed with members recruited from police, paramilitary, and military forces, where police officers were in the minority. This further “blurred the boundaries between the previously civilian police force and the military” (Aitchison, 2014, p. 15). The combined processes of de-​professionalization and militarization established a chaotic structure within the police and security forces. Aitchison emphasizes the “complex processes of organisational reorientation” that prepared the police forces for becoming involved in both mass detention and killings at a fast pace as the conflict intensified into open war (Aitchison, 2014, pp. 5, 17). The transition of the Guatemala National Police into an atrocious organization started as early as the late 1960s, under the auspices of the United States (Weld, 2014, pp. 91–​110). The process was mainly driven by politicization and militarization of the civilian police force. In the following years, and throughout the internal conflict until 1996, each regime change politicized the leadership and management of the police and security forces and facilitated collaboration with paramilitary and urban death squads, which had their basis in political parties (Brett, 2016, p. 41). Special police units joined these squads25 (Brett, 2016, pp. 35–​37) in mass killings in urban as well as rural areas.26 When the strategy of escalation of atrocity crimes failed in urban areas in Guatemala, and the brutal violence of police forces became ever more visible and common knowledge among citizens, the political establishment ushered in another regime with even more organizational change for police and security forces (Brett, 2016, p. 37). In this way, each regime change added another layer to the process of transformation by establishing special forces, units, or commands. This included the integration of an intelligence unit, which became the principal agent of political repression, as well as the establishment of a series of special units (commandos) within the police tasked with targeting political opponents. The cooperation with the military in several campaigns of repression was finalized and formalized under the regime of Rios Montt in 1983, when the National Police was transferred from the Interior Ministry to the Ministry of Defense (Weld, 2014, p. 137). The criminal justice system became further involved in this process through the establishment of secret, military-​style courts (Tribunales de Fuero Especial) for trials of political opponents. A thicket of parallel and competing hierarchies, responsibilities and duties, and mostly secret communication flows was created, which provided a fertile environment for planning, executing, and covering up atrocity crimes under a veil of “pseudo-​legality.”27 The offices of the National Police underwent a series of name changes, which obfuscated individual and collective involvement in atrocities.28 Until today, it remains unclear whether a

25 

AHPN 2013, pp. 184–​227. A similar process took place in Colombia (Civico, 2016). 27  AHPN 2013, pp.141–​156, pp. 302–​315. 28  AHPN 2013, p. 432. 26 

Detention, Torture, Disappearance    267 specific case of enforced disappearance was carried out by police, security, or military units, and by which outfit of these (Guzmán, 2011; Weld, 2014, p. 132). Lamb (2018) describes the process of militarization of the South African police force during the Apartheid regime as a series of reactions to major incidents of police massacres against protests in townships. This led to cooperation between police and military in quelling protests, as well as to a substantive increase of military-​style armament and police personnel. Police forces were centralized and integrated, leading to a “fortification” of the South African police. Arnould and her colleagues (2020) report on processes of militarization and dismantling of civilian control as police and security forces in Brazil and Chile transformed into atrocious organizations. In all cases, including the Holocaust, atrocious organizations were submitted to constant reorganization and shifting of tasks, creating an organizational maze. This process was often driven by factionalism and power struggles among police, the security apparatus, the military, and paramilitary groups. Aitchison (2014) documents this for Bosnia Herzegovina, Robinson (2018) for Indonesia, and Arnould et al. (2020, p.181) for Brazil and Chile.29 Paradoxically, factionalism and power struggles also ensured that information on atrocity crimes committed by police forces quickly reached their top leadership levels. Within days, the highest levels of government, police, and security forces became aware of incidents of atrocity crimes, as Aitchison (2014, p. 10) reports for Bosnia and Herzegovina. The cases of killings and disappearances published from the Guatemala Police Archives show that reports and communication were addressed to the middle as well as highest ranks, including the Minister of the Interior.30 Police officers on night duty sent confidential and secret memoranda addressed to “the Head of State, Commander in Chief of the Army, and the Minister of National Defence” detailing their operations.31 Within the organization, police officers were rewarded for their action in persecution, killing, and disappearance shortly after the event.32 Consequently, the highest levels of the Guatemala government were “ ‘fully aware of a clandestine burial ground . . . used by the Detective Corps to dump bodies after interrogation” (Weld, 2014, p. 132). These flows of upward communication are complemented by downward flows. Governments actively encourage the transition to an atrocious organization by opening an undefined and seemingly limitless space of action for the organization and its rank and file. Thus, Guatemala dictator Rios Montt instructed elite operatives to “apprehend, hold, interrogate, and dispose of suspected guerrillas as they saw fit” (Weld, 2014, p. 137; italics added). In occupied Poland during World War II, General Governor Hans Frank encouraged and lauded the District Chiefs for extracting forced labor from the Polish population and the mass detention and killings of the Jewish population in their area; he in particular left the type of measures taken to the District Chiefs themselves and deliberately shrouded what was actually going on (Roth, 2009, pp. 176, 203). Such instructions from highest levels of 29 This

echoes U.S. Prosecutor Justice Jackson’s famous comment at the IMT that in the Nazi government, obviously no one had responsibility of anything (Taylor 1992/​1994, p. 557). Besides the efforts of the defendants to exculpate themselves, this also reflected the realities of the Nazi regime and its atrocious organizations. 30  AHPN 2013, pp. 323, 429. 31  AHPN 2013, p. 147. 32  AHPN 2013, pp. 320, 347.

268   Susanne Karstedt the government and bureaucracy avoid direct orders and explicit language; they rather establish a double code of secrecy and simultaneous openness. For instance, the terminology to record deaths shifted and changed with regime and organizational change in Guatemala (Guberek and Hedstrom, 2017). The Guatemala police forces had operational plans “that alluded to ‘cleansing operations’.” While the official plans for such operations did not include the term, the report submitted following their execution had the title Report on Cleansing Operation.33 Subordinate police officers on duty understood what they were actually asked to do, just like the District Chiefs in occupied Poland.

6.  White, Gold, and Gray Collars: Agents in Atrocious Organizations When “normal” organizations are transformed into atrocious organizations, the composition and roles of their members, their culture, and their values and attitudes change across all hierarchical levels. This section explores the involvement of different hierarchical groups in the crimes of atrocious organizations. At the higher levels of the hierarchical order, “white-​ collar” bureaucrats and administrators, and “gold-​collar” (Brants, 2007) commanders lead the transition to atrocious organizations and are responsible for setting the machinery of atrocity crimes in motion. With the latter term, Brants (2007, p. 311) refers to leaders from the military and security forces, and captures their responsibility for planning and strategizing the crimes in contrast to those who, as “foot soldiers,” execute the task and “are not encouraged to question policy or strategy.” Rank-​and-​file members of the administration, police, military, and security forces at the bottom of the hierarchical order are directly involved in the execution of the crimes as well as in their cover-​up. The organizational context and hierarchical order put a burden on the lower ranks, many of them executing the crimes under the firm conviction of doing the “right thing” (Smeulers, 2019). The crimes often require the collaboration of other organizations; for instance, in the case of enforced disappearances in Argentina, professionals in hospitals or workers in morgues and cemeteries were implicated (Crenzel, 2018).34 These groups are complemented by “grey-​collar workers” (Allen, 2005). These are victims drawn into, forced, and employed in the machinery of atrocious organizations. They have decisive roles and tasks in executing the crimes, and include, for example, Kapos in Nazi concentration camps, or those who under duress turn into informers for police and security forces. Atrocious organizations do not seamlessly transform their rank-​and-​file members into willing executioners of atrocity crimes. The opposite seems to be more plausible, as organizations become atrocious in a complex process (see previous section). Both the sweeping changes in the composition of the forces and the use of untrained recruits defy 33 

AHPN 2013, pp. 245–​246. workers in Argentina wrote a letter of complaint directly to General Videla asking for proper work gear and a salary raise for their gruesome task of disposing of the bodies of disappeared persons (Crenzel, 2018). 34  Morgue

Detention, Torture, Disappearance    269 the notion of a quasi-​automatic transition to atrocity crimes in (civilian) police forces in Bosnia Herzegovina. Police officers are not simply conditioned to use force and obey any command, even if that involves mass atrocities. We find a diversity of reactions when they are confronted with such tasks, as reported by Browning (1992) for leadership as well as subordinate ranks in the execution of the Holocaust. According to Aitchison (2014, p. 13), the police in Bosnia Herzegovina had “sought, at different points in time and at different levels of the organization, to resist their utilization in combat tasks,” and as such the process of militarization. In some cases, police officers, including a police chief, actually protected non-​Serbs; such limited incidents show “that police broke from the script of persistent, repeated and serious abuse” (Aitchison, 2014, p. 9). This also applies to the military forces during Argentina’s “Dirty War.” Officers differed in their zeal to carry out orders of violent repression along the fault lines of ideological beliefs prevalent among different corps, with nationalist officers being responsible for significantly higher levels of repression than liberal officers (Scharpf, 2018). Images of the white-​collar rank-​and-​file bureaucrats have largely been shaped by Hannah Arendt’s portrayal of Adolf Eichmann, who was one of the leading bureaucrats orchestrating the Holocaust. Hannah Arendt’s study was tremendously influential in establishing the stereotype of the ordinary bureaucrat or police officer who engages in extraordinary crimes in the most ordinary, rule-​compliant, and bureaucratic ways (Reicher and Haslam, 2012, p. 109). Historical research and contemporary evidence from a range of sites have decisively revised this model.35 Biographies of Eichmann’s colleagues, the leading bureaucrats in the Reich Main Security Office (Reichssicherheitshauptamt)36 show that they were committed to Nazi ideology, highly motivated, and energetic in achieving the tasks set by the political leadership. They consciously and zealously served the regime, and rather designed the rules as they saw fit instead of following them; Wildt (2009) accordingly characterizes them as an “uncompromising generation.” The District Chiefs in occupied Poland were career bureaucrats at a lower level, often with a law degree; many of them can be described as zealous in the pursuit of the tasks set for them, including atrocity crimes of forced labor, mass detention, and mass killings. They (realistically) expected to be rewarded for their efforts with further and swift promotion (Roth, 2009, p. 96). However, they also reacted differently to the open space that Governor General Hans Frank had delineated for their actions. Some of them actively and excessively participated in the mass killings of the Jewish population in their areas while others kept a low profile and were dismayed by excessive and public violence. Some eagerly developed initiatives and organizational blueprints for the execution of atrocity crimes that were declared models or made general practice by the leadership. Nonetheless, all of them were unanimous in supporting the ultimate goal of extermination and destruction in one way or the other (Roth, 2009, pp. 201, 231, 229). Research and documentation from Cambodia, Bosnia Herzegovina, and Guatemala show that atrocious organizations are transformed and run by personnel who aim at

35 For critical re-​ evaluations of the Milgram and Stanford Prison Experiments see Reicher and Haslam (2012) and Haslam et al. (2019). 36  The Reich Main Security Office (Reichssicherheitshauptamt) combined under the leadership of the SS the most notorious of the atrocious organizations, the Secret Police (Gestapo), other police forces, and the SS Task Forces.

270   Susanne Karstedt effective functioning and achievement of the tasks. According to his own account, Duch, the commandant of S-​21, was a diligent and energetic administrator, whose aim was to run the detention center and related killing grounds as smoothly and effectively as possible. This included executions when mass detention started to interfere with the proper functioning of the compound (Hinton, 2016, pp. 130–​141), and oversight, instructions, and training for torture (“interrogation”) (Hinton, 2016, pp. 142–​167). In Bosnia Herzegovina, the process of politicization had radicalized the leadership and had an impact deep down on the lower ranks of police officers. Party appointees were eager to meet expectations from the political leadership rather than following professional protocol, and they were sufficiently motivated to accelerate the transition of the police force into an atrocious organization (Aitchison, 2014, pp. 11–​12). Similarly, in Guatemala, the politicization brought radicalized leaders of police and security forces to power, including some of the most infamous. The radicalization of the leadership affected the lower ranks, who knew exactly what was expected of them and acted accordingly, even if actions were only vaguely spelled out or secretly coded in the order given, as in the case of “cleansing operations.” It is reasonable to assume that the rewards for police officers who conducted a killing and disappearance operation were common practice in the National Police, and motivated others.37 Atrocious organizations involve “gray-​collar workers” in two ways: as support personnel in mass detention camps, and as informers when they widen their net in targeting individuals and groups of the population. Mass detention requires extensive involvement of gray-​collar workers on a large scale. The daily operations of detention sites and large camps routinely use the support of the victims themselves, including specific functions, positions, and duties. In detention camps these are privileged positions of power with increased chances of survival, but where power is easily abused (Wachsmann, 2015, pp. 512–​527). In the concentration camps of the Nazi regime, gray-​collar workers had roles as administrators, orderlies or so-​called Kapos, who had guard and overseer duties. They worked as bookkeepers, doctors, cooks, engineers, and secretaries (Allen, 2005). Gray-​ collar workers had similar roles in Indonesian detention centers (Robinson, 2018, p. 222). In carrying out their tasks, they became witnesses and also were deeply involved in atrocity crimes themselves.38 In campaigns of state repression and mass detention, individuals under extreme duress become informers for the organizations, thus fueling the vicious cycles of mass detention and killings. Police and security forces in Argentina and Guatemala recruited informers from those who were brought in as victims in the first instance.39 These gray-​collar workers do their work outside of the organization, though they are connected through their contacts within the organization and receive remuneration. Whether within detention camps or connected as informer, becoming a gray-​collar worker is a survival strategy for the victims of atrocious organizations.

37 

AHPN 2013, p. 320. the death camps, they were involved in the running of the gas chambers and the crematoria. When the Germans tried to cover up the mass killings, gray-​collar workers had to open the mass graves and to dispose of the bodies (Angrick, 2019). 39  AHPN 2013, pp. 306–​314. 38  In

Detention, Torture, Disappearance    271

7.  Conclusion: Prevention, Intervention, and Justice Atrocious organizations pose enormous challenges for prevention, intervention, and justice. On the one hand, these arise due to the nature of their operations “under the cloak of pseudo-​legality,” and the involvement of perfectly legitimate organizations like police, security forces, and criminal justice. The secretive modus operandi and specific cluster of atrocity crimes of killings, detention, torture, and enforced disappearances pose problems for early warning and intervention by the international community. On the other hand, members of atrocious organizations, in particular security forces, are capable of mobilizing an array of resistance strategies against transitional justice procedures, including trials and prosecution (Arnould, 2019; Arnould et al., 2020). Across rank and file, belief in the justified nature of past behavior persists, as among Brazilian police officers (Huggins, 2000), District Chiefs in the occupation of Poland (Roth, 2009, pp. 416–​425), or those sentenced by the ICTY (Karstedt, 2018). The very characteristics of atrocious organizations shield them and their members from intervention, prevention, and justice. Atrocious organizations take great care in obfuscating their actions and the atrocities committed, and they develop careful protocols to keep crimes and victims a secret, even if a public one. This makes it extraordinarily difficult to establish the chain of actions where decisions are made and to pinpoint those responsible for them. Consequently, mapping suitable intervention and prevention mechanisms onto the operations of these organizations, and prosecuting individual perpetrators and their crimes, encounter massive obstacles. Starting in the 1950s, the international community developed instruments to address (illegal) detention, torture, and enforced disappearances. The UN Standard Minimum Rules for the Treatment of Prisoners were first adopted and approved in 1955/​1957 and revised and adopted as the so-​called Nelson Mandela Rules in 2015. The Nelson Mandela Rules state that “no prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification.”40 The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted in 1984 and entered into force in 1987.41 In 2006, it was complemented by an Optional Protocol, which allows for visits of detention centers by an independent commission.42 The Inter-​American Convention to Prevent and Punish Torture adopted in 1987 provides the broadest and most

40 United

Nations Office on Drugs and Crime (UNODC) (2015) The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), p. 2. Available at: https://​www.unodc.org/​documents/​justice-​and-​prison-​reform/​Nelson_​Mandela_​Rules-​E-​ebook.pdf (Accessed: March 11, 2020). 41  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted December 10, 1984, entered into force June 26, 1987)1465 UNTS 85. 42  Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (adopted January 9, 2003, entered into force June 22, 2006) A/​RES/​57/​199. As of 2019, 90 states have signed the Optional Protocol.

272   Susanne Karstedt detailed definition of this atrocity crime.43 The International Convention for the Protection of All Persons from Enforced Disappearance was adopted in 2006 and entered into force in 2010, with 98 signatory states in 2019.44 These international instruments address the specific cluster of atrocity crimes and the organizations where these crimes are mostly committed in the broadest sense. Notwithstanding these efforts of the international community and regional bodies to curb these crimes, the sustained periods of time that the crimes could continue demonstrate the challenges and difficulties of prevention and intervention. This applies to Guatemala and other Latin American countries, to South Africa during Apartheid, or to Indonesia, all countries where atrocious organizations were operational during the Cold War. Particularly in Latin American countries, the United States rather supported and fueled the ongoing atrocities. In the 1960s and 1970s, U.S. agencies were fully aware of systematic atrocity crimes in Guatemala, and the descent into atrocity of the security organizations, which they advised and trained. They rather meekly responded, if at all, and mostly turned a blind eye, making them complicit in the crimes45 (Weld, 2014, p. 101). Chile and Argentina are other examples of support, toleration, and non-​intervention during this time (Koonings and Kruijt, 1999; Aguila 2010; Aguilar and Kovras, 2019; Crenzel, 2019). The historical record of prosecution and trials as well as of other transitional justice mechanisms is poor. In post-​war Germany, only a small fraction of those who ran the death and concentration camps were ever put on trial (Wachsmann, 2016; Pendas, 2006). Prosecution of police officers in domestic courts often failed, as did prosecution of the high-​ level bureaucrats of the Reich Security Office, due to a stealth amnesty orchestrated by the Ministry of Justice (Wildt, 2009, pp. 404–​424; Görtemaker and Safferling, 2016, pp. 399–​ 420). Attempts of prosecuting the District Chiefs in occupied Poland as well as extraditing them to Poland were often thwarted (Roth, 2009, pp. 344–​387). In Latin America, the “justice cascade” (Sikkink, 2011) of international, regional, and domestic criminal justice hardly reached those who had been deeply implicated in mass detention, systematic torture, enforced disappearances, and extra-​judicial killings. This applies to police and security forces in Brazil and Chile, where the military could negotiate ample amnesties (Arnould 2019), as well as to Guatemala and Argentina (Robben, 2018). Only a handful of cases have been prosecuted and perpetrators sentenced in Guatemala in relation to the atrocity crimes committed by the police forces, security apparatus, and military. Documents from the police archives show that courts had been complicit in establishing a culture of impunity for police officers involved in disappearances and killings.46 Possibly, the ICTY and domestic courts in Bosnia Herzegovina have the best record of prosecution of police forces for atrocity crimes (Aitchison, 2014). While the nature of atrocious organizations might indirectly contribute to this poor record of making perpetrators accountable, security forces’ strategies of resistance to transitional

43 Organization of American States (OAS), Inter-​ American Convention to Prevent and Punish Torture (adopted December 9, 1985, entered into force February 28, 1987) OAS Treaty Series, No. 67. 44  International Convention for the Protection of All Persons from Enforced Disappearance (adopted December 20, 2006, entered into force December 23, 2010) 2716 UNTS 3. 45  AHPN 2013, pp. 107–​114. 46  AHPN, 2013, p. 384.

Detention, Torture, Disappearance    273 justice have an immediate impact on these processes. Based on research from Chile, Brazil, Sierra Leone, and Uganda, Arnould and her colleagues (2020, p. 178) identify the following “discreet forms of resistance”: obstructionism, delegitimation, strategic cooperation, disengagement, and appropriation.47 In post-​war Germany, high-​ranking bureaucrats as well as rank-​and-​file police officers obstructed prosecution efforts through networks of witnesses, who exchanged and prepared testimony (Karstedt, 2019). In Chile, security forces achieved far-​ranging amnesty laws, and sealing of testimony for fifty years before the 2003 Truth Commission started its work. In Brazil, the military refused access to military records, as was the case in Indonesia (Melvin, 2017). Delegitimation refers to the transitional justice process itself, when the institutions or their representatives are accused of bias and victor’s justice, as widely used by the military in Brazil and Chile. Strategic cooperation implies overt acceptance and participation, but in practice, police and security forces hold back documents and evidence or put pressure on witnesses. The consent of the Chilean security forces to cooperate in efforts to locate the remains of disappeared people in practice mainly produced useless information on 200 cases, and few remains were found or identified. In contrast to the more active forms of resistance, like hampering and curtailing transitional justice mechanisms, disengagement represents a more “passive form” (Arnould, 2019, p. 5). This strategy includes dissenting historical narratives, establishing closed circles for exchange, and memorial initiatives. The former members of the SS in Germany (Karstedt, 2019), of the military in Chile, and police in Brazil (Huggins, 2000) commonly used this strategy. When security forces appropriate a transitional justice mechanism, they mobilize (or pervert) it to directly serve their own interests; this includes directing it against non-​ government and rebel forces and diverting attention and prosecution from the security apparatus and its atrocious organizations, as happened in Brazil during the transition from the military regime. Notwithstanding the difficulties for transitional justice mechanisms arising from the nature of atrocious organizations and resistance strategies of its members, Kim and Sikkink (2010) have shown that in particular domestic prosecution had a significant impact on the overall reduction of the typical cluster of detention, torture, killings, and enforced disappearances in transitional countries. In contrast, Arnould and her colleagues (2020) conclude that transformations and reform of the security sector, like demilitarization and civilian oversight that were carried out in Chile and Brazil, were decisive in reducing these atrocity crimes. Domestic courts and civil society organizations provide the local knowledge that is crucial in bringing police and military forces to justice. The relative success of the ICTY in prosecuting and sentencing members of the police might be due to its local focus (Aitchison, 2014). With the initiatives of the international community and the development of international and regional instruments to prevent these crimes, international campaigns have gained in importance. In the early 1970s, a campaign for the release of the Indonesian prisoners was led by international human rights organizations, notably Amnesty International and the International Commission of Jurists, and later joined by international bodies like the International Labour Organization (Robinson, 2018, p. 237–​247). David Scheffer (2016b, p. 221) recently proposed the use of the provisions of the Rome Statute to address the operations 47 

Arnould (2019) found no evidence of violent resistance by security forces.

274   Susanne Karstedt of atrocious organizations and their crimes. In 2017, the prosecutor of the ICC opened a preliminary examination into the systematic extra-​judicial killings by the Philippine police, and in 2019, the UN Human Rights Council adopted a resolution that proclaimed the Philippine government accountable for the atrocities. These are hopeful signs that the international community has taken up the cause against atrocious organizations, their crimes, and those under whose command they are committed.

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PA RT I I I

AC TOR S I N AT RO C I T Y C R I M E S

CHAPTER 12

Individua l s as Perpetrators of Atro cit y C ri me s Alette Smeulers 1.  Introduction Confronted with atrocity crimes and with individuals involved in such violence, most people ask themselves: who are these people? And: why do they commit such horrible crimes? Understanding how mass atrocities occur in states or in groups is one thing, but to understand the individuals who actually maim, torture, rape, and kill is another. Some have referred to this as trying to explain the inexplicable (Charny, 1982). Yet, we do need to know when, why, and under what conditions people can come to commit mass atrocities, as this is the only means to find ways to prevent the crimes from being perpetrated. This chapter is not meant to explain perpetrators and perpetration, but rather is meant to give an overview of the current state of the art of perpetrator research. It starts by providing an historical overview of perpetrator studies (section two), and then continues to see what, and how, various disciplines have contributed to the study of perpetrators of atrocity crimes, and thus stresses the inter-​and multidisciplinary approach of this type of research (section three). In section four, the focus will be on the current state of the art, and the chapter continues with sections on the core debates in perpetrator studies (section five), the most pressing questions and the conditions for future research (section six), and what it is like to research perpetrators of atrocity crimes (section seven). The chapter ends with a conclusion, emphasizing why, despite its difficulties, research on perpetrators must continue (section eight). As such, the chapter aims to give an overview of what we do know, and do not know, about perpetrators of atrocity crimes, and where research should head in the future.

282   Alette Smeulers

2.  An Historical Overview Research on perpetrators of atrocity crimes started mainly after the Second World War. The atrocities committed during this period were not the first atrocities to be committed, but they seemed unprecedented.1 This is due to the sheer number of people killed (approximately six million people perished in the Holocaust) and the extent to which the atrocities were systematically organized, leading to an industrialized type of killing in which the state bureaucracy was heavily involved. Another unique feature was that, for the first time in history, the perpetrators of mass atrocities were held responsible in front of an international criminal tribunal: the International Military Tribunal, which was established in Nuremberg after the war.2 The leaders of Nazi Germany, with the exception of Adolf Hitler, Heinrich Himmler, and Joseph Goebbels, who had all escaped prosecution by committing suicide, sat in the dock for everyone to see, and made people ask who these people were and why they did what they did.3 The Holocaust and the subsequent trials triggered the interests of many scholars, with books continuing to be written today on the Holocaust and its perpetrators. The establishment of the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda led to a rise in scholarly interest in the former Yugoslavia and Rwanda, and to the publication of books and journal articles on the individuals on trial (see e.g., Drakulic, 2004), or more generally, on the atrocities committed. This interest was equally generated by well-​publicized national trials such as the ones of Adolf Eichmann in Jerusalem in 1961 (see Arendt, 1964), of Klaus Barbie in France in 1987 (Finkelkraut, 1992), and of Kaing Guek Eav, better known as Duch, by the Extraordinary Chambers in the Courts of Cambodia (ECCC) (Hinton, 2016; Cruvellier, 2011). Although trials themselves might not be the best way of getting an insight into the perpetrator’s psyche (see Bouwknegt and Nistor, 2019), they seem to lead to a growing interest in learning about a period of mass atrocities and the people responsible for these crimes: the perpetrators (Critchell et al., 2017, p. 4). Initially, research on perpetrators was mainly conducted by historians, psychologists, and psychiatrists, and focused on the Holocaust.4 Over the years, scholars from other disciplines such as philosophy, sociology, criminology, political science, and anthropology became interested in mass atrocities, as well. As will be discussed in the following section, they all brought their own concepts and theories to the field of perpetrator studies and further enhanced our knowledge and understanding. Nowadays, perpetrator studies can be seen as a truly inter-​and multidisciplinary field (see Smeulers et al., 2019). Scholars active within perpetrator studies seldom rely merely on their own disciplinary field but take an

1  The

Holocaust is not the first genocide; there were previous ones, such as in Armenia and other places. It has, however, been alleged that the Holocaust was nevertheless unique. See Friedrichs (2000) for more. 2  After World War I, there were the Leipzig trials in which 12 people were tried, but these are generally not seen as a success and, therefore, not viewed as the birth of the international criminal justice system. 3  The trial was covered in the media extensively, see Critchell et al. (2017, p. 20). 4  See for some of the early works: Hilberg (1985), Kelley (1946, 1947), and Gilbert (1947).

Individuals as Perpetrators of Atrocity Crimes    283 interdisciplinary approach. One of the best-​known examples is the historian Christopher Browning (1992), who studied and analyzed the men of Reserve Police Battalion 101, a group of older police officers who were unexpectedly ordered to round up and execute Jews, and eventually killed over 70,000 men, women, and children. In his analysis of the behavior of these men, Browning strongly relied on research findings from social psychology. Next to concepts and theories, scholars from various disciplines also brought their own research methods to the field. While studies on perpetrators initially were mostly qualitative in nature and based on assessing and understanding individual perpetrators via interviews (Kelley, 1947; Gilbert, 1947; Sereny, 1974, 1995), gradually more quantitative methods (Mann, 2000; Verwimp, 2005) and mixed methods approaches (Cohen, 2013) were used. This led to a further broadening, maturation, and professionalization of the field. The sheer number of studies as well as the fact that scholars started to focus on different periods of mass atrocities allow researchers now to make comparisons and to look for common factors, as well as differences, among perpetrators across various contexts. Although the Holocaust is probably still the best-​documented period of mass atrocities, atrocity crimes committed during the Vietnam War, the genocide in Rwanda, the war in the former Yugoslavia, the South African Apartheid regime, the genocide in Cambodia, the Latin American dictatorships, and the extreme crimes committed by followers of the Islamic State have all been documented very well. In that sense, too, perpetrator studies as a field has matured. The main questions that have been central in this type of research are: Who are the perpetrators?; Why do they commit such horrendous crimes?; Are they born or trained to do this?; and What are their defining characteristics? The next section focuses on the various disciplines tackling these questions and what they brought to the field of perpetrator studies.

3.  An Inter-​and Multidisciplinary Area of Research Historians were, as already mentioned, among the first to focus on the Holocaust, uncover the facts, and describe what actually happened. Historians generally study documents and try to give meaning to them by interpreting and understanding events within a certain time period. Over time historians became more and more interested in also finding explanations as to why things happened. Holocaust and Genocide Studies became a specific field of interest and eventually a sub-​discipline within history itself. Some scholars, among whom most prominently Raul Hilberg, set out to provide his readers with not only a history of the genocide, but also with an understanding of who the perpetrators were (Hilberg, 1992). Nowadays the work of historians is still crucial in understanding the prevailing context of the time mass atrocities were committed. Other important contributions of historians to the field of perpetrator studies are the many biographies historians have written. These biographies include well-​known perpetrators such as political leaders like Hitler (e.g., Kershaw, 2008), Stalin (e.g., Montefiore, 2003)5, Mao (e.g., Lynch, 2004), and Pol Pot (e.g., Chandler, 1999), and also the lives of some of Hitler’s close associates, such as 5 

Separate or in a comparative analysis: see Bullock (1991) on Hitler and Stalin: Parallel Lives.

284   Alette Smeulers Joseph Goebbels (e.g., Longerich, 2016), Hermann Göring (e.g., Overy, 1984), and Heinrich Himmler (e.g., Padfield, 2001). Biographies are also written by historians on many lower-​ ranking but infamous perpetrators such as Josef Mengele, the doctor who conducted the cruel experiments in Auschwitz (Posner and Ware, 1986). Some of these biographies were purely based on documentary research, while some historians, like Gitta Sereny, managed to conduct extensive interviews with specific perpetrators. In the 1970s she interviewed Albert Speer, Nazi architect and Minister of Armament and War Production, and in the 1990s she conducted interviews with Franz Stangl, camp commander of Sobibor and Treblinka, and wrote a book on each of them (Sereny, 1974, 1995). These biographies all give insight into the lives and motives of the individuals studied as well as the context in which they operated. These studies are very valuable in and of themselves, but they also provide useful sources for other scholars. Philosophers mainly try to give meaning to the world and make sense of human behavior, albeit on a more abstract level. Erich Fromm, for instance, wrote the book Escape from Freedom in 1941 and tried to understand why so many people followed a man like Hitler. Hannah Arendt, who was a political philosopher, struggled with similar questions. She studied human nature as well as the political systems in which many mass atrocities were committed. Her important works are The Origins of Totalitarianism (Arendt, 1973) and The Human Condition (Arendt, 1999). Her best-​known and most influential work relating to perpetrators of mass atrocity crimes is Eichmann in Jerusalem, in which she coined the famous concept of the banality of evil.6 Ever since, many philosophers have discussed human nature and the causes of evil as well as Hannah Arendt’s thesis on the banality of evil. After Arendt studied Adolf Eichmann, a typical armchair perpetrator, several philosophers, as well as scholars from other disciplines, studied the role of bureaucracy. An example is the philosopher and sociologist Zygmunt Bauman (1989), who wrote the important and influential work Modernity and the Holocaust. Bauman suggests that the Holocaust is a typical outcome of modernity and that armchair perpetrators are a new type of perpetrator. Max Weber and Raul Hilberg had previously discussed the nature of bureaucracy, and this discussion led to all kinds of intriguing questions as to who is to be considered a perpetrator. Bauman (1989) and Hilberg (1985) described how modern and bureaucratic society channels feelings of responsibility and how moral responsibility is replaced by a technical responsibility to fulfill the needs of the bureaucracy. The sheer inhumanity of the industrialized killings of the Holocaust was almost ungraspable, with the cruelty of the physical acts hidden behind a long chain of command, out of sight for the bureaucrats involved, who prioritized their jobs and the Nazi bureaucratic system over humanity. Hilberg (1985) explained that armchair perpetrators are people “drafting memoranda” rather than people who murdered and killed victims with their own bare hands. This distinction between those organizing and facilitating the atrocities and those committing them changed our perception of who perpetrators are. Perpetrators of mass atrocities are not just the people pulling the trigger or operating the gas chambers, but all those involved in the machinery of death. The philosophical concept of perpetrator could in some cases go beyond

6  The book and her analysis of Eichmann were both heavily criticized (Cesarani, 2004; Stangneth, 2014; Lewy, 2017), but, in my view, they still hold much value.

Individuals as Perpetrators of Atrocity Crimes    285 the purely legal qualifications as to who is a perpetrator. Recent works from philosophy which focus on perpetrators include books by Stangneth (2016) and Shaw (2019). Psychological research on perpetrators of international crimes started during the Nuremberg Trials. The prison psychologists Douglas Kelley and Gustave Gilbert interviewed the defendants and conducted psychological tests. They tried to make psychological profiles of the defendants, which they described in their respective books (Kelley, 1947; Gilbert, 1947). Interestingly, their conclusions differed: while Kelley believed the defendants to be fairly ordinary people comparable with any group of successful businessmen, Gilbert saw them as predisposed to commit horrendous crimes. Whatever their differences, this was the start of the use of psychology and social psychology to try to understand the perpetrators of mass atrocities. Another famous book focusing on the psychology of perpetrators is Robert-​Jay Lifton’s (1988) Nazi Doctors. Lifton, himself a psychiatrist, wanted to understand how doctors could have come to play such a crucial role in the Holocaust and used his knowledge as a psychologist and psychiatrist to try to understand their behavior. Next to these case studies which focused on a particular group of perpetrators, social psychology provided a lot of useful general insights in human behavior which help to understand extreme forms of violence. It showed the role of obedience (Milgram, 1974), conformism (Asch, 1955), peer pressure and group processes (Warr, 2002), deindividuation (Festinger et al., 1952), moral disengagement (Bandura, 1999), and cognitive dissonance (Festinger, 1957), which are all very relevant to understanding the behavior of perpetrators of mass atrocities. Some psychologists conducted general research, which turned out to be relevant to the study of perpetrators (e.g., Asch, 1955; Festinger, 1957), while others, from the outset, aimed to better understand mass atrocities and set up laboratory experiments to study certain aspects of human behavior, as Stanley Milgram did in relation to obedience (Milgram, 1974). Still, others used or developed theories based on knowledge of (social)psychology and applied this knowledge to case studies, such as Kelman and Hamilton (1989), who relied on research into obedience and developed the concept of “crimes of obedience,” which they applied to a case study: the My Lai massacre during the Vietnam War. Other scholars, like the already mentioned historian Christopher Browning (1992), relied heavily on social psychology when trying to make sense of the behavior of the policemen of Reserve Police Battalion 101. For perpetrator studies the field of social psychology is still one of the most important and relevant areas of research, from which new developments can be expected. It is also a field within which developed theories can be tested. Helen Fein and Stanley Cohen are two of the best-​known sociologists who focused on mass atrocities in general and genocide in particular, and thus introduced sociology to the field of perpetrator studies. Fein (1993) distinguished several types of genocide, which gives us a better understanding of the different motives of perpetrators. Stanley Cohen’s most important work in relation to perpetrators is his book States of Denial (Cohen, 2001). Cohen noted that denial is the most common way for people to deal with immense suffering. This denial is true for victims, bystanders, and perpetrators alike. For perpetrators, denying the suffering of the victim makes inflicting harm much easier. Human behavior can be analyzed not just from the micro-​level, but also from the meso-​level (group, organization) and macro-​level (state), and sociologists oftentimes focus on such institutional and societal context and structures to study perpetration. The German scholar Herbert Jäger (1962) was one of the first to state that next to sociologists, criminologists should focus more on state crime as a specific form of criminality.

286   Alette Smeulers He used the German term “Makrokriminalität” (literally translated as “macro-​criminality”) and concluded that the state is often involved in atrocity crimes. Other scholars followed suit with their call for a criminology of international crimes (e.g., Laufer, 1999; Roberts and McMillan, 2003). The calls were answered, and supranational criminology, or the criminology of international crimes, is now a well-​developed sub-​field within criminology (see Smeulers and Haveman, 2008; Hagan and Rymond-​Richmond, 2009; Rafter, 2016). Within this field there is—​among other things—​a clear focus on perpetrators (Smeulers, 2004, 2008; Smeulers et al., 2019; Anderson 2017 and Williams 2021). Sociologists and criminologists, unlike historians and psychologists, often focus less on individuals, trying instead to identify broader trends and common denominators. They also try to bring their own concepts and theories, developed for other crimes, and use them in order to better understand the behavior of the perpetrators of atrocity crimes. Several scholars, for instance, use the concept of neutralization techniques to explain juvenile crimes to the study of mass atrocities (see Alvarez, 1997), or rely on other criminological theories (Maier-​Katkin et al., 2009; Neubacher, 2006), or life course criminality (Nyseth Brehm et al., 2016; Stuifbergen, 2018). Political scientists, too, have progressively focused on periods of mass violence. They do so by trying to understand the political context in which these crimes are committed, identifying preconditions to genocide and politicide (Harff, 2003),7 identifying minorities at risk (Gurr, 1993), analyzing the role of ideologies (Alvarez, 2008; Leader Maynard, 2014)8, and studying the role of the international community (Power, 2001). Some studies focus on how organizations and organizational dynamics affect the behavior of individuals (Staniland, 2014). Political psychology is a sub-​field within political science which tends to focus on why and how people behave within a particular political context. It is a field that is in between psychology and political science and has led to interesting and relevant research in the field of perpetrator studies. Well-​known studies are the ones by Kressel (1996), Gupta (2001), and Manfred Mann (2005). Kressel explains the phenomenon of mass hate. Gupta focused on collective madness, and Mann on the dangers of the power vacuum during democratization processes. Other political scientists conduct quantitative studies or use a mixed methods approach, like Elisabeth Wood and her team at Yale University who focus on wartime sexual violence and the perpetrators thereof.9 They have conducted extremely relevant and important research, in which they studied the variation in patterns of sexual violence and concluded that sexual violence is not (as has been suggested) an inevitable consequence of war (see Wood, 2010; Cohen, 2013). Other studies, like the one by Eriksson Baaz and Stern (2008) in the Democratic Republic of the Congo, are very interesting because they provide insight into various motives perpetrators can have. Other well-​known scholars from the field of political science are Scott Straus (2006) and Lee-​Ann Fujii (2009), both of whom focused on individual perpetrators in Rwanda. Sociologists and criminologists together with political scientists introduced quantitative methods to the field of perpetrator studies. One of the best-​known studies is the one by Hagan and Rymond-​Richmond (2009) on the violence in Darfur, in which they use various research methods to establish whether the mass violence could be qualified as genocide.

7 

See also Chapter 4 in this volume by Barbara Harff. See also Chapter 9 in this volume by Jonathan Leader Maynard. 9  See also Chapter 27 in this volume by Kim Thuy Seelinger and Elisabeth Wood. 8 

Individuals as Perpetrators of Atrocity Crimes    287 Anthropologists, on the other hand, focus not on patterns, but on cultural aspects of humanity in depth. Important works stemming from anthropologists are those of Hinton on the perpetrators in the Cambodian Genocide (Hinton, 2005, 2016) and of Erin Jessee on Rwanda (Jessee; 2019). An important part of their message is that we should concentrate more on the act of perpetration rather than on individual perpetrators, because within a specific period of time roles can shift and perpetrators can become bystanders, or even victims, and vice versa (Jessee, 2019).10 Anthropology is particularly helpful in understanding the particularities of a certain period of mass atrocities and the differences between various periods. Lawyers generally focus on how to hold individuals criminally responsible for mass atrocities. In their work, they study, analyze, and judge the extent to which perpetrators have sufficient agency to be held responsible. A number of studies and works are very relevant for the study of perpetrators, such as Mark Drumbl’s book on child soldiers (2012) and Atrocity, Punishment and International Law (2007). Both books discuss the legal issues related to the criminal liability of perpetrators.11 An interesting and important sub-​field of the law, that is also very relevant to perpetrator studies, is the field of empirical legal studies, in which facts and figures of perpetrators on trial are gathered and analyzed (see e.g., Holá, 2012). These facts and figures help us quantify the otherwise mostly qualitative findings. Perpetrators on trial have also been studied by Rauschenbach et al. (2015) and Houge Bringedal (2016) who tried to figure out how perpetrators perceive their trials, while Holá and Simic (2018) focused on “what happens to the perpetrators after their trials.”12 A fairly new but intriguing line of research, which progressively shows its relevance to the study of perpetrators of mass atrocities, comes from biology and neuroscience. This line of research focuses on the functioning of certain parts of the brain (frontal cortex, amygdala) and neurological processes (the role of neurotransmitters and the so-​called warrior gene). Sapolsky (2017), for instance, notes that hormones, genes, brain function, upbringing, social context, and culture are all intertwined, and in order to study extreme human behavior we need to study all aspects and all possible influences on behavior. Biological and psychological features cannot by themselves explain genocide, but an understanding of them in combination with other factors may certainly be helpful. These studies may turn out to be crucial to understanding the perpetrators of mass atrocities or to distinguishing among the various types of perpetrators. Although not really studied in a separate discipline, extremely useful information on the nature and consequences of mass atrocities can also come from victims and perpetrators themselves. These can be testimonies in court, but also biographies or literary works. The books by Primo Levi (1947) and Elie Wiesel (1964), both Holocaust survivors, are well known and contributed to our understanding of what concentration camps were like, and contributed, therefore, also to our understanding of the context in which perpetrators 10 

See also Chapter 14 in this volume by Erin Jessee. See also Chapter 3 in this volume by Mark Drumbl. 12  In their special issue on ICTY Celebrities: War Criminals Coming Home, Holá and Simic (2018) conclude: “Some[ . . . ] ICTY celebrities were not considered criminals, outcasts or deviants but were received and transformed into celebrities back home after their trials.” In this same issue it was noted that the defendants at the ICTY wrote over 100 books which provided great material for analysis, which has already partially been done by Petrovic (2018) in that same issue. 11 

288   Alette Smeulers operate. Such books discuss human nature in extreme circumstances (see also Todorov, 1999). Some perpetrators wrote their own autobiographies while in prison, as for instance the camp commander of Auschwitz, Rudolf Hoess (1959), or wrote memoires, as Albert Speer (1975) did, which are useful insights into their views of the events.13 Lastly, journalists and filmmakers can help us understand a certain context or certain motives. The film Shoah by Claude Lanzman was a seminal work, and the interviews conducted by journalists, such as the ones with Rwandan perpetrators by Hatzfeld (2005) or the Argentine perpetrator Adolfo Scilingo by Verbitsky (1996), are extremely helpful and useful material for the study of perpetrators. In conclusion, we can say that many disciplines have contributed in their own way to the study of perpetrators, via establishing the facts and providing information on the background of perpetrators and the historical context in which they perpetrated their crimes (historians, journalists); by studying how individuals are affected and shaped by the social context in which they operate (psychology and sociology); how this context can lead to criminal behavior (criminologists); and what this teaches us about human nature (biology and philosophy) or society (sociologists, political scientists). All disciplines have a unique contribution, and the works of many scholars studying mass atrocities have become inter-​ and multidisciplinary because of the need to study the interplay between the individual and the situation.

4.  The Current State of the Art The preceding overview shows that many fields and disciplines have contributed to the field of perpetrator studies, and all of them have enhanced our understanding of individuals involved in mass atrocities. The main question to answer in this section is: What then do we know about perpetrators of international crimes? As it is impossible to give a complete overview and discuss all the available research in just one chapter, the focus of this section will be on a few major findings (for a more detailed overview of the current state of the art see Smeulers et al., 2019, pp. 29–​56). A first important finding is that many people who are involved in mass atrocities are otherwise ordinary and law-​abiding people (Arendt, 1964; Browning, 1992; Smeulers, 2004; Nyseth Brehm et al., 2016, p. 717).14 Most scholars conducting research on perpetrators of international crimes have agreed on this fact. We thus can rule out that people are born evil, and rather have to conclude that people can “become evil,” as Zimbardo (2007) noted in his book The Lucifer Effect. The individual behavior of perpetrators of mass atrocities cannot be studied in isolation from the historical and situational context. While this observation may be true for any crime, with mass atrocity crimes, political, ideological, and

13  These documents are sometimes disregarded as self-​serving, which to some extent may be true, but they also show how the perpetrators view the world, and this helps understand their behavior, as narrative criminologists suggest (Presser and Sandberg, 2015). 14  Browning (1992, p. 189), for instance, concluded: “If the men of Reserve Police Battalion 101 could become killers, under such circumstances, what group of men cannot?”

Individuals as Perpetrators of Atrocity Crimes    289 institutional factors arguably play a bigger role than in the more individualized social context that predominantly shapes ordinary crime. People can come to commit mass atrocities in a particular political, ideological, and institutional context (Staub, 1989; Smeulers and Grünfeld, 2011). Human behavior, in short, cannot be explained either by relying entirely on dispositional factors or on situational factors. It is, in fact, a result of the interaction between the two. We, for instance, know that difficult living conditions (such as war or an economic crisis) can give rise to more extreme ideologies (whether, for example, left wing, right wing, or religious) which blame and scapegoat a minority group, and this scapegoating can ultimately lead to mass violence, persecution, or even genocide (Staub, 1989). Authoritarian and charismatic leaders, like Hitler, can play a crucial role in instigating mass violence. In addition, the general conformist nature of human beings (Aronson, 2004) makes many follow a charismatic leader who seems to have the answers to their questions and/​or a solution to their problems (Fromm, 1941; Hoffer, 1951; Staub, 1989). Yet we still do not know why some people follow such leaders and others do not. It is also unknown why some people become forerunners to atrocities and get physically involved in the violence, while others stand by, do nothing, or try to fight the regime and oppose the atrocities. So, in short: context seems crucial here, but different people respond differently to the same kind of circumstances. Hence, we can conclude that context matters but so do dispositional factors. Second, and related to the preceding: experimental research has shown that within particular circumstances people can display behavior they would otherwise not show. Both Milgram and Zimbardo proved this with their two well-​known classic experiments. Despite recent criticism on both experiments, I would still argue that the most important findings of their research—​the fact that we naturally tend to believe, trust, and thus obey and follow authority (Milgram, 1974), and that we are affected by an atrocity-​producing situation (Zimbardo, 2007)—​still stand strong.15 The best real-​life proof of these conclusions comes from the research conducted by Haritos-​Fatouros (2003) on the so-​called Greek torture school, in which she shows that recruits can be forcefully trained to become torturers. The well documented training program in Greece under the Colonels regime (1967–​1974) is the sad but best illustration thereof. The training was extremely harsh and coercive (exhaustive endurance, threats, insults, humiliation, the creation of a sense of fear and of loneliness, group punishments, etc.), all of which aimed to deliberately turn the recruits into torturers. It is difficult to see how people can resist such a coercive training and could thus prevent getting involved in torture. The trainers only needed a certain percentage of all the recruits they trained, so they were able to select only those considered best at it. But what if they

15  See for criticism on Milgram Perry (2013), in which it is concluded that the outcome might be more nuanced but still mostly stands. For criticism on Zimbardo see Ben Blum (2018); Le Texier (2019). One of the relevant issues is that in the original publications on this experiment, Zimbardo seems to suggest that his role was minor, but in his book The Lucifer Effect, it turns out that he played a much larger role. The question is to what extent this impacts the outcome of the experiment. Having read all the criticism, I do believe that the outcome was less spontaneous than I had initially assumed, but I agree with Zimbardo that the actions of the guards go “far beyond simply playing the role of a tough guard” (2007, p. 6), and the experiment still tells us “something important about human nature” (2007, p. 7). See also an earlier replication (Lovibond et al., 1979), the BBC experiment version (Haslam and Reicher, 2007), and the response of Zimbardo (2018).

290   Alette Smeulers would have needed everyone? Could they have continued and forced everyone into becoming a torturer? These are important questions and, so far, we can only guess the answer. This is not something that we can test in a laboratory, due to the current (very well justified) ethical limits to research.16 The third, and probably most important, lesson we have learned from research on perpetrators so far, is that people in a particular situation—​perpetrators of even the most horrendous crimes—​can come to believe they are doing the right thing (Smeulers, 1996; Straus, 2006; Nyseth Brehm et al., 2016). Human beings have a tremendous capacity for distorting the world and seeing their role and their behavior as intrinsically good and right. They often go to great lengths to soothe their own consciences. One of the most striking examples is from one of the men of Reserve Police Battalion 101, as quoted by Browning. This man, who only shot children, managed to turn this murder into an act of mercy in his own mind: I made the effort, and it was possible for me, to shoot only children. It so happened that the mothers led the children by the hand. My neighbour then shot the mother and I shot the child that belonged to her, because I reasoned with myself that after all without its mother the child could not live any longer. (Browning 1992, p. 73)17

Evil can thus be masqueraded as good in peoples’ minds, and it is probably this tendency to rationalize and justify their own behavior that makes individuals capable of committing mass atrocities. We are masters in deceiving not just others, but also, maybe most importantly, ourselves. Especially when doing something bad, we want to silence our conscience. We want to get rid of the cognitive dissonance (Festinger, 1957) and rationalize and justify what we did: convince ourselves that we did the right thing (see also Smeulers, 1996). The more extreme it is what we did, the more urgent this becomes to psychologically survive. Goleman (1985) appropriately used the term “vital lies” (see also Payne, 2003; Cohen, 2001) to describe this mechanism. It is also true that we sometimes want to believe something is true so badly, that even though we know it is not true, we eventually come to believe it nevertheless is (Baumeister, 1997, pp. 307, 331). People can thus come to see horrendous crimes, such as torture and genocide, as nothing out of the ordinary, as a duty to be fulfilled, as work that needs to be done (Smeulers, 1996, 2004; Crelinsten, 2003; Nyseth Brehm et al., 2016, p. 714). A fourth important lesson is that people change and transform. People are affected by the context in which they operate, and they continuously adjust and adapt. People, in other words, learn by doing and move on a continuum of destructiveness (Staub, 1989). Just like we learn to be social, we can learn to be criminal or evil. People who come to commit horrendous crimes transform from being ordinary human beings into perpetrators of mass atrocities (Staub, 1989; Smeulers, 2004). It is well established that many perpetrators feel 16 

The experiments by Milgram and Zimbardo are generally seen as extremely useful for the study of perpetrators of international crimes, but neither of them can be replicated since ethical boards will not approve of the use of human subjects in such a way. 17 See for a very similar story Baumeister (1997, p. 308): A woman who together with others “bludgeoned youngster[s]‌” but found an excuse for this: “She was doing the children a favour, because they were orphans who had faced a hard life. Their fathers had been butchered with machetes and their mothers had been taken away to be raped and killed.”

Individuals as Perpetrators of Atrocity Crimes    291 bad the first time they commit a crime,18 but then get used to it (Staub, 1989; Smeulers, 2004; Baumeister, 1997). They desensitize and become brutalized, and, in the end, feel nothing about what they are doing anymore (Staub, 1989; Smeulers, 1996, 2004; Baumeister, 1997, p. 285). Within this transformation they often start to have a very polarized perception of the world and divide it into “us versus them,” in which the “them” are the bad and evil people. They gradually dehumanize their victims. Perpetrators start to feel they are the true victims who actually save the world through their heroic behavior. It often entails a total reversal of morality. This process is illustrated by a famous quote in a speech Himmler delivered, in which he qualifies mass murder as a heroic act: Most of you know what it means when 100 corpses lie there, or 500 lie there, or 1000 lie there. To have gone through this and apart from the exceptions caused by human weakness—​to have remained decent, that has hardened us. That is a page of glory in our history never written and never to be written.19

A last important lesson is that perpetrators differ. They differ in the rank and role they have; in the extent of control they have over a situation. But maybe more important, they also differ in their motives (see for typologies Crelinsten, 1993, Mann, 2005; Smeulers, 2008). From case studies we know that people can kill out of ideology, but also simply because they received the order to kill, because everyone else did, in order to profit, or because they enjoyed torturing, maiming, and killing. There are also perpetrators who commit horrendous crimes out of fear: fear of the enemy, but also fear of the people who order them or assert control over them (Straus, 2006; Smeulers and Hoex, 2010). If we look at the past of perpetrators before the periods of atrocity, we see many differences: some had already been involved in criminal activity, whereas others had not. Some perpetrators might have been victims or bystanders before; they can shift into different roles at different times, even during the same conflict (Jessee, 2019).20 The main conclusion we can draw from this is that perpetrators differ, and that very different people can come to commit atrocities for very different reasons, in very different circumstances. We should, therefore, be careful not to draw general conclusions from case studies too easily. To conclude, human behavior is extremely complex, and the best we can do is identify facilitating factors and inhibitory factors. We can identify situations which are conducive to mass atrocities and explain how they affect human behavior; we can identify character traits which might make some people more prone to commit mass atrocities and others less so. So far, however, it is difficult to explain why some people become perpetrators and others do not. We can propose and provide such explanations in individual cases, but, so far, we cannot draw generalizable, empirically tested conclusions. Individual human behavior in the period of mass atrocities is too complex a phenomenon, and we have, by now, managed to get only scattered, but still very important, pieces of the puzzle. Some scholars such as 18 

In literature, there has been a discussion on whether this perpetrator disgust is some kind of animal pity, emotional reaction, or moral abhorrence. See Munch-​Jurišić (2014). 19  The original text was obviously in German and reads as follows: ‘Dies durchgehalten zu haben heisst im Hinblick auf Beteiligung an der Judenvernichtung „und dabei—​abgesehen von Ausnahmen menschlicher Schwächen—​anständig(!) geblieben zu sein, das hat uns hart gemacht’ (Cf. Jäger, 1962, p. 82). 20  See also the Chapter 14 in this volume by Erin Jessee.

292   Alette Smeulers Scott Straus even question whether we can ever fully understand perpetrators and why they kill (Straus, 2017, p. 28). Even if his worries are justified, this does not mean that we should stop trying to get to know as much as we can about extreme human behavior, because understanding such behavior is our best chance of finding means to stop and prevent it.

5.  Core Debates The core debates within the field of perpetrator studies so far have been: First, whether perpetrators of international crimes are ordinary people or deranged individuals. Second, whether the prime factors shaping perpetrators’ behaviors are primarily situational or, rather, dispositional. Third, whether everyone can become a perpetrator, or whether only a separate group of people with certain characteristics are susceptible to committing atrocities. The fourth, and last, debate focuses on what the main motives of perpetrators are. These debates are very much related and intertwined. Within academic literature, it is now generally accepted that most perpetrators of mass atrocities are ordinary, and otherwise law-​abiding, citizens. Initially, people believed in the so-​called mad Nazi theory (Waller, 2007), and scholars tried to prove that the perpetrators were somehow deranged. This was a dead end, since there were simply too many people involved in mass atrocities (especially in Nazi Germany and Rwanda) to qualify all of the perpetrators as mentally deranged or disturbed, and evidence showed otherwise. This is not to say that among the perpetrators there will not be any deranged individuals or people who have mental deficiencies, but overall most perpetrators are ordinary citizens, not characterized by any mental disorders or deficiencies. This realization led to the second debate as to whether primarily situational factors, such as the political, ideological, and institutional context in which perpetrators operate, or dispositional factors, such as individual characteristics, are decisive when trying to explain their behavior.21 Many factors which play a role in transforming individuals into mass murderers, torturers, and the like have been identified. However, it is also widely acknowledged that there are many situations in which some people commit atrocities whereas others do not. Scholars seem to agree that both situational and dispositional factors play a role, but which ones predominate is hard to know, and scholars have different opinions on this. What makes this debate even more complex is that scholars from different disciplines do not use the same definitions or have the same understanding of what constitutes a situational or dispositional factor (Overy, 2014, see section 6). This leads us to the third debate, as to whether everybody can become a perpetrator. Some scholars believe that circumstances can become so coercive that everyone, or almost everyone, will become a perpetrator. The example of the Greek torture school, briefly touched upon earlier, in which torture became institutionalized is such an example (Gibson and Haritos-​Fatouros, 1986). Others point out that in a certain coercive context not everyone becomes a perpetrator and kills or inflicts violence. In his study of the Rwandan

21  Critchell et al. (2017, p. 5) situate the origins of this debate to the 1960s and 1970s with Arendt’s book on Eichmann and the research conducted by Milgram and Zimbardo.

Individuals as Perpetrators of Atrocity Crimes    293 Genocide, Scott Straus, for instance, points out that only a small percentage of people actively participated in the genocide (Straus, 2004). This seems to show that it may be just a minority of people who are actually involved in violence, and may lead to the suggestion that not everyone can become a perpetrator (see de Swaan, 2015). A lot of these conclusions, however, depend on how we define perpetrator: is it only those who are physically involved or also those who somehow contribute to the mass atrocities? And, what about those who play minor roles, or are, in a legal sense, accomplices and accessories? But even then, the fact that not everyone participates does not mean that not everyone can potentially turn into a perpetrator. As we will probably never be able to test this theory, this idea will very likely remain an unsolved debate in which personal conviction rather than empirical evidence will be decisive. The last debate is on the motives of perpetrators. Theories as to why people get involved can be manifold: through obedience (Milgram, 1974), because of rising opportunities (Gupta, 2001), because of social pressure (Browning, 1992), hate (Kressel 1996), or ideological conviction (Gupta, 2001). The most important finding, however, is that perpetrators differ. Some are sadists or criminals, others just follow orders; some fit the banality of evil thesis, whereas others act out of hatred, ideology, or greed. It is therefore important to acknowledge this range of motives. The answer to this debate can be found in the perpetrator typologies which have been developed, and which suggest that various motives can play a role, and that there is not just one overriding motive driving all perpetrators (Crelinsten, 1993; Mann, 2005; Smeulers, 2008).

6.  Pressing Questions and Conditions for Future Research The main questions which need to be answered on perpetrators of mass atrocities are the ones raised earlier in the debates, namely: What characterizes the perpetrators and situations in which they commit mass atrocities? and What characterizes the refusers and situations in which people refuse to commit mass atrocities? In order to answer these questions, we need to know even more about the context in which perpetrators, and those who refuse, operate, and how this context affects human behavior: what are the facilitating factors and what are the inhibitory factors in mass violence on a micro-​, meso-​, and macro-​level? We also need to know more about the perpetrators and figure out what characterizes them, and what distinguishes them, from those who, in similar circumstances, did not become perpetrators. We, for instance, know that many perpetrators commit so-​called crimes of obedience; their crimes are, in other words, committed as a response to direct or implied orders. We need to know more about who obeys such orders and who, in a similar situation, does not. What makes people obedient and what gives others the guts to disobey, to break the chain of command? It is not easy to find people who refuse an order, or act in contravention of pervading norms and who resist their peers, but if we discover them, we need to find out more about them and their behavior and compare them to the perpetrators. From a research perspective, it would be interesting to see, for example, if, and how, the physical perpetrators psychologically differ from the armchair perpetrators and others

294   Alette Smeulers who merely played a minor role. It would also be interesting to see what happened to them after a period of mass atrocities, and to what extent, and how, their behavior might differ from those who were less violent and less extreme. A central focus could then be to try to compare two people in a similar situation and explain why within that situation one became a physical perpetrator and the other did not. In those cases, we can zoom in on the dispositional factors, since the situational factors are the same. In order to find the answers to these questions, more empirical research needs to be done and more data on situational contexts and perpetrators, as well as possible refusers, needs to be gathered and analyzed. Another very important area of research, which has been understudied, is why so many more men than women are involved in criminal activity in general, and in the perpetration of mass atrocities in particular. Women can be, and are, involved in mass atrocities, and when they are, they can be just as cruel as their male counterparts. Some studies have been conducted to examine the role of women in conflicts such as Nazi Germany (Lower, 2013), Rwanda (Hogg, 2010), and the Abu Ghraib scandal (McKelvey, 2007), as well as comparative studies (Linton, 2016; Smeulers, 2015). There have been studies on female perpetrators and how they are perceived in general (Sjöberg and Gentry, 2007). However, the most significant characteristic of perpetrators of mass atrocities is their gender, and this needs to be further investigated (see for an example Kimmel, 2018).22 What makes men so much more likely to get involved in mass atrocities? Does this have to do with their sex or gender roles? Is masculinity, and how it is perceived in certain organizations and groups, crucial? We can also tremendously benefit from future research on more comparisons between different types of crimes and criminals. For instance, the lack of empathy psychopathic serial killers show might help us understand how perpetrators of international crimes manage to stop feeling empathy. Life in a very coercive military environment can be compared with life in a religious sect. The dynamics of certain groups fighting in a war and taking advantage of a particular situation can be compared with the functioning of criminal groups and gangs. Many of the ongoing dynamics will be similar. But also, on an individual level, the psyche of perpetrators of international crimes can be compared with those of terrorists, school shooters, and serial killers. Doing so will lead to a better understanding of perpetrators. Such comparisons will inevitably lead to new interdisciplinary understandings, and this has the potential to tremendously enhance our knowledge of perpetrators of mass atrocities. In conducting future comparative research, we need to be aware that within disciplines the definition of a certain concept or theory might be different. A good example, and one which has already been mentioned, is the difference in how historians would define dispositional factors and how psychologists do. According to Overy (2014, p. 520), historians would qualify “enduring facets of a society, such as ideology or institutional structure” as dispositional, while psychologists would focus much more on specific individual traits when referring to dispositional factors. When conducting inter-​and multidisciplinary research, we should be aware of these differences. 22 

Nyseth Brehm et al. (2016), for instance, conclude that men were defendants in 91 percent of the cases dealt with by the Rwandan Gacaca courts (p. 730) and that women were involved in mass atrocities but were more likely to “participate in crimes against property and [were] comparatively unlikely to commit genocidal murder” (p.713).

Individuals as Perpetrators of Atrocity Crimes    295 So far, a lot of research has focused on trying to understand and theorize why perpetrators commit such horrendous crimes and on answering the questions of why people come to commit atrocity crimes and which theories can be used to study them. In order to back up these theories, we need more quantitative research in which the theories can be tested. Such research needs to be empirically and culturally sensitive (Sriram et al., 2009). Some research in this area has been done, but we need much more. Examples would be the studies of Hagan and Rymond-​Richmond (2009), Verwimp (2005), Dara Cohen (2013), and Nyseth Brehm et al. (2016).

7.  Doing Research on Perpetrators of International Crimes Research on perpetrators of international crimes is not always easy. It is difficult to gather reliable data, as the crimes are usually committed in a period of armed conflict and the state is in chaos. It is already challenging to tell how many people died or were otherwise victimized, and is consequently almost impossible to tell who exactly did what and who is responsible for which crimes, especially since perpetrators and perpetrator groups will try to hide evidence of the crimes committed. Unless they admit to their guilt, or have been convicted and might be very willing to talk, many perpetrators are not likely to be open to interviews or research, as what they say might lead to criminal prosecutions. Furthermore, if the perpetrators are prepared to talk, even when not yet prosecuted, they all have reasons to lie regarding their roles and their motives. This makes it hard to rely on what they say. On the other hand, many perpetrators seem to share very common experiences and seem to be telling “their truth,” which might not be the factual truth, but their own psychological truth. This is still very useful, especially if we want to understand their motives (Presser and Sandberg, 2015). Research can also be politically sensitive, since, in many cases of atrocity crimes, states are involved. Sometimes scholars have to word their research carefully, and may even get into danger themselves. In addition, when doing research on perpetrators of mass atrocities, the research methods are limited. Interviewing perpetrators is possible but usually only after the fact—​sometimes many years later and, therefore, when memories of individuals might be distorted because of the lapse of time, but also because they might be traumatized (Mohamed, 2015). Another option is to gather data on perpetrators, conduct psychological tests, question people in their environment, make use of biographies, or conduct surveys to figure out how people in general would behave. This is all possible, but other methods, such as participant observation, are not possible and certainly unethical. In laboratories, assessments and tests on conformity and obedience can be run, but if these tests need to be run in relation to violence, aggression, or crimes, the possibilities are limited, as labs do not allow for the same environments as atrocities. Both the Milgram and Zimbardo experiments provide us with extremely useful insights, but are also criticized for being unethical. It is, in other words, much easier to conduct experiments on processes of cooperation in a laboratory than it is on violence in the natural environment.

296   Alette Smeulers

8.  Conclusion Research on perpetrators can be difficult to do. It is often met with skepticism by people who fear that understanding perpetrators will lead to excusing. But, more important, scholars themselves can be haunted by their own findings. Robert Jay Lifton states that, even many years after he conducted research on Nazi doctors, he is still haunted by them. Pumla Gobodo-​Madikizela (2003) interviewed Eugene de Kock, an infamous killer in South Africa, and described powerfully how her own feelings of sympathy and empathy toward him freaked her out, and how de Kock seemed to deliberately take advantage of those feelings. Douglas Kelley, who was one of the first scholars to write a book after studying the Nuremberg defendants, committed suicide by swallowing a cyanide pill. He thus killed himself in the same way Göring had done. This incident seems to show that studying perpetrators, especially when the conclusion of the study leads the scholar to assert that perpetrators are ordinary people in extraordinary circumstances, means studying what you yourself could have been, and facing those implications. That is very confronting and might have been one of the reasons why Kelley killed himself. Yet the research is crucial. Understanding perpetrators is the only way to find means and ways to stop and prevent future violations. Prosecuting perpetrators is still a very useful means of individual deterrence, and criminal trials of mass atrocity perpetrators usually lead to a general interest, uncovering of facts, better understanding of the crimes, and a lot of follow-​up research into atrocities. Trials potentially serve not only justice and satisfaction for the victims, as means to set the record straight, but can also inspire future research. We should, however, be aware that locking up the culprits who committed horrendous crimes is not enough to prevent future crimes. In order to prevent future atrocity crimes, we need to understand why and when people commit horrendous crimes and try to develop strategies to prevent them from doing so. Knowledge from research on perpetrators can be used in practice. Zimbardo noted that footage from his Stanford prison experiment is used in the military to forewarn recruits of what might happen, and the dangers of being in such an atrocity-​ producing situation (Zimbardo, 2018). Using research findings to minimize the chances of these kinds of atrocities is ultimately what we hope to accomplish.

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300   Alette Smeulers Montefiore, S.S. (2003) Stalin: The Court of the Red Star. London: Weidenfeld & Nicolson. Munch-​Jurišić, D. (2014) “Perpetrator Abhorrence: Disgust as a Stop Sign.” Metaphilosophy 45(2), pp. 270–​287. Neubacher, F. (2006) “How Can It Happen that Horrendous State Crimes Are Perpetrated: An Overview of Criminological Theories.” Journal of International Criminal Justice 4, pp. 787–​799. Nyseth Brehm, H., Uggen, C., and Gasanabo, J.D. (2016) “Age, Gender and the Crime of Crimes: Toward a Life-​Course Theory of Genocide Participation.” Criminology 54(4), pp. 713–​743. Overy, R. (1984) Goering. London: Phoenix Press. Overy, R. (2014) “‘Ordinary Men,” Extraordinary Circumstances: Historians, Social Psychology, and the Holocaust.” Journal of Social Issues 70(3), pp. 515–​530. Padfield, P. (2001) Himmler—​Reichsführer-​SS. London: Cassel & Co. Payne, L.A. (2003) “Perpetrators’ Confessions: Truth, Reconciliation, and Justice in Argentina.” In: Eckstein, S.E., and Wickham-​Crowley, T.P. (eds.) What Justice? Whose Justice? Fighting for Fairness in Latin America. Berkeley: University of California Press, pp. 158–​183. Perry, G. (2013) Behind the Shock Machine: The Untold Story of the Notorious Milgram Psychology Experiments. New York: The New Press. Petrovic, V. (2018) “The ICTY Library: War Criminals as Authors, Their Works as Sources.” International Criminal Law Review 28(4), pp. 333–​348. Posner, G.L., and Ware, J. (1986) Mengele: The Complete Story. London: Cooper Square Press. Power, S. (2001) “Bystanders to Genocide: Why the United States Let the Rwandan Tragedy Happen.” The Atlantic Monthly, September. Available at: https://​www.theatlantic.com/​ magazine/​archive/​2001/​09/​bystanders-​to-​genocide/​304571/​ (Accessed: October 10, 2019). Presser, L., and Sandberg, S. (2015) Narrative Criminology: Understanding Stories of Crime. New York: New York University Press. Rafter, N. (2016) The Crime of All Crimes: Toward a Criminology of Genocide. New York: New York University Press. Rauschenbach, M., Staerkle, C., and Scalia, D. (2015) “Accused for Involvement in Collective Violence: Discursive Reconstruction of Agency and Identity by Perpetrators of International Crimes.” Political Psychology 37(2), pp. 219–​235. Roberts, P., and McMillan, N. (2003) “For Criminology in International Criminal Justice.” Journal of International Criminal Justice 1, pp. 315–​338. Sapolsky, R.M. (2017) Behave: The Biology of Humans at our Best and Worst. New York: Penguin Books. Sereny, G. (1974) Into that Darkness: From Mercy Killings to Mass Murder. New York: McGraw-​Hill. Sereny, G. (1995) Albert Speer: His Battle with Truth. London: Picador. Shaw, J. (2019) Making Evil: The Science behind Humanity’s Dark Side. Edinburgh: Canongate. Sjöberg, L., and Gentry, C.E. (2007) Mothers, Monsters, Whores: Women’s Violence in Global Politics. London: Zed Books. Smeulers, A. (1996) “Auschwitz and the Holocaust through the Eyes of the Perpetrator.” Driemaandelijks Tijdschrift van de Stichting Auschwitz 50, pp. 23–​55. Smeulers, A. (2004) “What Transforms Ordinary People into Gross Human Rights Violators?” In: Carey, S., and Poe, S. (eds.) Understanding Human Rights Violations: New Systematic Studies. Aldershot: Ashgate Publishing Ltd., pp. 239–​256.

Individuals as Perpetrators of Atrocity Crimes    301 Smeulers, A. (2008) “Perpetrators of International Crimes: Towards a Typology.” In: Smeulers, A. and Haveman, R. (eds.) Supranational Criminology: Towards a Criminology of International Crimes. Antwerp: Intersentia, pp. 233–​266. Smeulers, A. (2015) “Female Perpetrators: Ordinary or Extra-​Ordinary Women.” International Criminal Law Review 15(2), pp. 207–​253. Smeulers, A., and Haveman, R. (eds.) (2008) Supranational Criminology: Towards a Criminology of International Crimes. Antwerp: Intersentia. Smeulers, A., and Hoex, L. (2010) “Studying the Micro-​dynamics of the Rwandan Genocide.” British Journal of Criminology 50(3), pp. 435–​454. Smeulers, A., and Grünfeld, F. (2011) International Crimes and Other Gross Human Rights Violations: A Multi-​and Interdisciplinary Textbook. Leiden and Boston: Martinus Nijhoff. Smeulers, A., Weerdesteijn, M., and Holá, B. (2019) “Theories, Methods, and Evidence.” In: Smeulers, A., Weerdesteijn, M., and Holá, B. (eds.) Perpetrators of International Crimes: Theories, Methods, and Evidence. Oxford: Oxford University Press, pp. 29–​56. Speer, A. (1975) Spandauer Tagebücher. Frankfurt am Main: Verlag Ullstein GmbH. Sriram, C.L., King, J.C., Mertus, J.A., Marton-​Ortega, O., and Herman, J. (2009) Surviving Field Research: Working in Violent and Difficult Situations. New York: Routledge. Stangneth, B. (2014) Eichmann before Jerusalem. New York: Alfred A Knopf. Stangneth, B. (2016) Böses Denken. Reinbek bei Hamburg: Rowohlt Verlag GMBH. Staniland, P. (2014) Networks of Rebellion: Explaining Insurgent Cohesion and Collapse. Ithaca, NY: Cornell University Press. Staub, E. (1989) The Roots of Evil: The Origins of Genocide and Other Group Violence. Cambridge: Cambridge University Press. Straus, S. (2004) “How Many Perpetrators Were There in the Rwandan Genocide? An Estimate.” Journal of Genocide Research 6, pp. 85–​98. Straus, S. (2006) The Order of Genocide: Race, Power, and War in Rwanda. Ithaca, NY: Cornell University Press. Straus, S. (2017) “Studying Perpetrators: A Reflection.” Journal of Perpetrator Research 1(1), pp. 28–​38. Stuifbergen, J. (2018) “Een bijzondere groep daders: vrouwelijke langgestraften na afloop van de Tweede wereldoorlog in Nederland.” Tijdschrift voor Criminologie 60(3), 289–​311. de Swaan, A. (2015) The Killing Compartments. The Mentality of Mass Murder. New Haven, CT: Yale University Press. Todorov, T. (1999) Facing the Extreme: Moral Life in the Concentration Camps. Phoenix, AZ: Weidenfeld and Nicolson. Verbitsky, H. (1996) The Flight: Confessions of an Argentine Dirty Warrior. New York: The New Press. Verwimp, P. (2005) “An Economic Profile of Peasant Perpetrators of Genocide.” Journal of Development Economics 77, pp. 297–​323. Waller, J. (2007) Becoming Evil: How Ordinary People Commit Genocide and Mass Killing. 2nd ed. New York: Oxford University Press. Warr, M. (2002) Companions in Crime: The Social Aspects of Criminal Conduct. Cambridge: Cambridge University Press. Wiesel, E. (1964/​1982) The Town Beyond the Wall. New York: Bergen-​Belsen Memorial Press. Williams T. (2021) The Complexity of Evil -​Perpetration and Genocide, New Brunswick: Rutgers University Press.

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CHAPTER 13

Individua l s as Bystanders to Atro cit y C ri me s Roland Moerland 1.  Introduction Raul Hilberg (1992, p. xi) observed that most contemporaries to atrocities are not perpetrators or victims, but rather are bystanders. Although individual bystanders represent the biggest group of actors involved in atrocity crimes, compared to the other groups, they remain relatively understudied.1 Compared to the volume of scholarly work on perpetrators and victims, research on individual bystanders to atrocities remains limited in terms of the crimes and cases covered. When taking stock of the available research, it becomes clear that most knowledge on individual bystanders originates from the field of social psychology in general and does not include research that focuses specifically on bystanders to atrocity crimes. When studies do address atrocity crimes, they tend to originate from the field of genocide studies and focus on the crime of genocide, and more particularly the case of the Holocaust. Despite these limitations, research to date has yielded insightful knowledge regarding the role of the individual bystander. The aim of this chapter

1  Ehrenreich and Cole (2005, p. 217) explain that a possible reason for this could be the lack of direct documentation on bystanders in archives and oral histories. Although the field of bystander research remains relatively small compared to the research on perpetrators and victims, the field of research itself is broad because there is not one single bystander actor or position. In bystander research, studies on individual bystanders are, however, relatively rare. Notable exceptions include the research by, for instance, Lučić (2013), Donà (2018), or Kayumba and Kimonyo (2008). Most research focuses on the macro-​and meso-​level and concerns bystander communities, states, and organizations. See, for instance, the research by Marrus (1987), Stohl (1987), Power (2001), Grünfeld (2007, 2008), and Grünfeld and Vermeulen (2014). The edited volume by Morina and Thijs (2019) also contains several country studies. There is also research on bystander corporations by Amerson (2011).

304   Roland Moerland is to provide a comprehensive review of theoretical and empirical research on the subject. The review is organized into four parts. The first part focuses on the question of how to define the bystander and discusses the particular role individual bystanders play in atrocity crimes. Two issues tend to stand out in scholarly discussions on how to define the role of the bystander. First, the question is raised whether individuals who stand by and remain passive in the face of atrocity are “neutral” observers. Or does bystander behavior have crime-​enabling or facilitating implications? Second, scholarly discussions question whether the “individual bystander” as such exists, in the sense that it concerns a person with a specific personality or character trait. Or, is it more appropriate to talk about different types of bystanders depending on their specific behavior? As will become clear, the roles are complex, situation specific, and interchangeable, making defining the contours of bystanding a challenging exercise. The second part moves beyond definitional issues and reviews research that has addressed the question of how individuals become bystanders. In addition to the available research on the so-​called bystander effect that originates from the field of social psychology, and research on individual bystanders from the field of genocide studies, the analysis is furthermore informed by insights from studies that have investigated the perpetration of atrocity crimes and how individuals become perpetrators. Bystanders do not simply exist; their behavior develops over time, often following the same dynamics as perpetrators (Staub, 1989, p. 88; Staub, 2003, p. 306). For instance, bystanders, like perpetrators, are also confronted with the victims’ suffering, and in order to deal with this distressing reality, bystanders need to reduce the empathy toward, and identification with, the victims (Staub 2003, p. 305; Bruna Seu, 2011a, pp. 534–​535). The fact that bystanders do not simply exist furthermore means that the role individuals play in atrocity crimes are not fixed or mutually exclusive, and they can change over time. The discussion throughout the first two parts will reveal that bystander behavior has dire implications in terms of how it can enable and facilitate the perpetration of atrocity crimes. As a result, bystander behavior raises discussion among scholars regarding the moral questions of bystanding and the possible legal accountability for inaction. The third part of the chapter will therefore discuss research that addresses the moral and legal implications of “standing by.” Finally, the chapter will end with concluding remarks that point out several possible avenues for future research.

2.  Defining the Role of Individual Bystanders Hilberg’s (1961; 1992) research on the Holocaust has laid the foundation for what has become known as the atrocity triangle (see Figure 13.1).2 The atrocity triangle reveals that in

2  Cohen

(2001, p. 14) defined the atrocity triangle as follows: “in the one corner, victims, to whom things are done; in the second corner, perpetrators, who do these things; in the third, observers, those who see and know what is happening.” This chapter focuses on the role of the individual bystander. For an analysis of the constellation and interaction between all three actors, see Ehrenreich and Cole (2005).

Individuals as Bystanders to Atrocity Crimes    305 BYSTANDER

PERPETRATOR

VICTIM

Figure 13.1  Atrocity triangle Created by the author

addition to the perpetrator and the victim, a third party is involved in atrocity crimes: the bystander.3 According to Hilberg (1992, p. ix), perpetrators, victims, and bystanders are distinct groups of actors: “Each saw what had happened from its own special perspective, and harbored a separate set of attitudes and reactions.” When defining the groups, Hilberg (1992, p. xi) described bystanders as being neither perpetrators nor victims. They “were not ‘involved,’ not willing to hurt the victims and not wishing to be hurt by the perpetrators.” In addition to Hilberg, many other scholars have introduced bystander definitions (Staub, 1989, p. 86; Barnett, 1999, p. 9; Smeulers and Grünfeld, 2011, p. 332; Kahn, 2012, p. 68; Verdeja, 2012, p. 154).4 From these definitions, it becomes clear that individual bystanders are defined as actors who, despite being present in a situation, do not take part in what is going on, while also not being directly affected by it. In that sense, they are passive spectators or onlookers who do not bare the direct negative consequences of the situations they are facing. Guiora (2017, pp. 5 and 85) furthermore adds that bystanders are also “not the direct cause of the harm.”5 Reflecting on how scholars have defined the bystander, Bauman (2003,

3  In 1961, Hilberg published his phenomenal work The Destruction of the European Jews, in which he distinguished three separate categories of actors involved in the Nazi Holocaust; perpetrators, victims, and bystanders. In the book Perpetrators, Victims, Bystanders: The Jewish catastrophe 1933–​1945 that Hilberg published in 1992, he further developed the analyses of the roles that these three groups played in the persecution of the Jewish people. See Schlott (2019) for a discussion of Hilberg’s “discovery” of the bystander. 4  For a comprehensive discussion on the challenges involved in defining the bystander, see Fulbrook (2019). 5  According to Barnett (2012, p. 37), it might also be helpful to define bystanders in terms of what they are not: “By definition bystanders are not themselves the target of the persecution, nor are they actively involved as perpetrators, and hence by definition the bystander retains the option of remaining on the side-​lines. The bystander has the option of passivity, that is, the option to accept the status quo, abide by the laws and decisions made by others, and not intervene. Victims do not have these choices. Perpetrators by definition have crossed the line into involvement.”

306   Roland Moerland p. 137) observes that “an integral part of the ‘bystanders’ definition, indeed one of their principal defining features, [was] not to be among the perpetrators. The classic triangle of roles played in the course of evildoing separated the bystanders from the perpetrators no less radically than it set them apart from the victims.” The rather strict separation of the bystander role from the other roles in the atrocity triangle has led to criticism, because it implies that bystanders are merely neutral observers whose behavior has no implications. As Figure 13.1 reveals, the atrocity triangle does not only distinguish the three groups of actors involved in atrocity crimes, but it also shows that the actors are related to each other. Atrocity dynamics are not determined solely by how perpetrators and victims interact with one another. The dynamics of perpetration and victimization are also affected by how bystanders interact with perpetrators and victims.6 Smeulers and Grünfeld (2011, p. 334) note that since the bystander is related to the other actors involved in the triangle, ultimately its role is defined by its actions in relation to the other actors in the atrocity triangle. According to Verdeja (2012, p. 160), the bystander is thus a relational, dynamic concept. Staub (1985; 1989; 1993) has extensively studied the role of the bystander, and he shows that bystanders play a crucial role in the start of atrocities, their continuation, and cessation. Firstly, bystanders play a role in creating and maintaining the situation in which the atrocities occur. By remaining passive, they give tacit approval to the actions of the perpetrators. Bystander passivity signals that the violence is or will be tolerated, which can strengthen the perpetrators in their conviction that what they are doing is accepted and right.7 Second, according to Staub (1985; 1989; 1993), bystanders are relevant actors because they also play a key role in interrupting or halting the process of perpetration. Bystander intervention is an important factor in making the perpetrators doubt whether they can get away with their crimes.8 It can lead perpetrators to question whether what they are doing is or will be accepted by those who witness it. By criticizing or protesting, bystanders can affect the behavior of the perpetrators, making them back off and even stop the violence. Bystander action not only affects the perpetrators. It can also influence other bystanders and impede processes that lead to collective passivity. When interventions take place early in the perpetration process, the effect is likely to be higher (Staub, 1989, p. 152). Thus, in terms of the dynamics of perpetration, the role of the bystander is significant because the dynamic between perpetrators and victims is not likely to change. It generally involves a downward spiral in which perpetrators through perpetration gain power, while those enduring victimization end up being powerless. Perpetrators are not likely to stop, and victims do not have the ability to halt the crimes perpetrated against them. Therefore, bystanders are often the only actors who can disrupt the dynamic between the two groups. Therefore, efforts to stop the violence rely greatly on the willingness of bystanders to intervene (Grünfeld and Huijboom, 2007, p. 3).

6

  Vetlesen (2000, p. 522) explains that the relationship is triadic, not dyadic.   These actors are referred to as passive bystanders. 8   These actors are referred to as active bystanders. 7

Individuals as Bystanders to Atrocity Crimes    307 That bystanders are not neutral or passive observers has far-​reaching implications. According to Smeulers and Grünfeld (2011, p. 334), bystanders who do not (attempt to) intervene and act in solidarity with the victims condone what is happening. They thereby aid the cause of the perpetrators, and this makes them (unwilling) collaborators in what is happening. In contrast to such passive bystanders, active bystanders empathize with the victims and do (attempt to) intervene in solidarity with them. Such intervention often involves opposition to the perpetrators’ violent practices and, depending on how bystanders oppose the perpetrators, they can become resistors and/​or rescuers (Smeulers and Grünfeld, 2011, p. 334). Such oppositional behavior can be overt and/​or covert. It can include forms of resistance by lending no support to the perpetrators by refusing to give information, or passing on vital information to the resistance, signing petitions, attending demonstrations, etc. It can also involve rescuing behavior such as actively helping victims and protecting them (Verdeja, 2012, pp. 163–​164). Active bystanders can also work against the violence-​supportive behavior of others, including other bystanders. Barnett (1999, p. 157) explains that what characterizes active bystanders is a disruptive empathy, which is “an ‘unwillingness’ to let things happen.”9 Minow (2017, p. 815) has referred to such actors that do not remain passive as “upstanders.” It is thus not easy to discern the role of the bystander from the other roles in atrocity crimes. In fact, scholars have argued that the atrocity triangle collapses (Smeulers and Grünfeld, 2011, p. 334; Baum, 2008, p. 156; Verdeja, 2012, p. 161; Barnett, 1999, p. 11; Barnett, 2012, p. 36). In the case of atrocity, neutrality does not exist, because passivity automatically has crime-​enabling or facilitating implications. It is therefore more accurate to talk about a continuum10 instead of a triangle, as depicted in Figure 13.2. Depending on their behavior and the implications, bystanders can be positioned along the continuum either closer to the perpetrator or the victim.11

9 In contrast, bystander passivity concerns “a ‘willingness’ to permit history to take its course.” (Barnett 1999: 157). 10  This continuum is also captured by Gaunt in his epidemiological model of genocide. According to Gaunt (2012, p. 146), “there are various different levels within the bystander population that may be compared to the layers of an onion. Each level is somewhat smaller than the preceding level. The onion itself represents the entire bystander population. The first level down comprises the large group of individuals who are unaware that anything wrong is going on; they see and hear nothing. The next level is comprised of those who are aware that something bad is going on, but who do not consider doing anything to stop it. The third level consists of those who are aware of the genocide and who consider intervention, but who do not, in the end, intervene. The fourth level consists of those who are aware and who decide to intervene, but who are stopped by the perpetrators. The final core, which is quite small by comparison with the size of the whole, comprises those who intervene and who actually manage to rescue someone.” 11  Guiora (2017, p. 106) warns that approaches which present bystanders as perpetrators may lead to definitional ambiguities. According to him “[t]‌he perpetrator is the aggressor, actively acting against the victim,” while the bystander is complicit due to the failure to act. De Haan (2019, p. 345) also notes that the inclusion of the bystander among the ranks of perpetrators has analytical implications, because it can obfuscate the concept of perpetrators.

308   Roland Moerland BYSTANDER CONTINUUM Solidarity with victims

Abandonment of victims “PASSIVE”

COMPLIANCE

BYSTANDER

UPSTANDER

COLLUSION ACQUIESENCE

OBSTRUCTION RESISTANCE

PROTECTION SALVATION

VICTIMS

SUPPORT COOPERATION

OPPOSITION

RESCUER

COLLABORATOR

PERPETRATORS

DOWNSTANDER

“ACTIVE”

BEHAVIORAL RANGE: INACTION ACTION COVERT OVERT

Figure 13.2  The Bystander Continuum Created by the author

3.  Situated Positionality Monroe (2008, p. 702) notes that rescuers, bystanders, or perpetrators are often treated as separate analytical concepts, but, in reality, the boundaries between these groups can be porous. The roles are not fixed, and they can change over time depending on the specifics of the situation (Fujii, 2009, p. 8).12 The case of Oskar Schindler, for instance, illustrates how roles can change. Schindler initially did not resist the Nazi regime, and instead, he made use of the business opportunities that arose under Nazi rule. He made use of the possibility to obtain factories in occupied areas and profited from the cheap labor of Jewish people who were forced to work. As Schindler became more horrified by the brutal violence against the Jewish population, however, he decided to rescue as many Jewish people as he could from Nazi persecution. In the process, he risked his professional business, but also his personal safety.13 To better understand this situated positionality of bystanders, Donà (2018, p. 12) distinguishes between the mass atrocity as a singular macro-​event and as a series of singular violent episodes at the micro-​level. With the adjective “situated,” Donà (2018, p. 13) draws attention to the specific spatial, temporal, and social contexts in which behavior occurs and roles change. Donà investigated the situated positionality of bystanders in the specific case of the genocide against the Tutsi. Her study shows that depending on how actors were situated in the event, the lines between categories of actors could be thin and porous (Donà 2018, p. 12). Rescuers could help Tutsi by hiding them, but their efforts could also come to an end when giving refuge to people would become too dangerous, making those who rescued, passive bystanders again (2018, p. 15). Furthermore, Donà’s study reveals how in certain situations passivity might not always entail collaboration. In certain scenarios, passivity might be a form of resistance. Donà explains that given how the genocide was organized, Hutu men were expected to participate or support the violence against the Tutsi. This meant that amid such expectations, “the ‘act of 12  See also Anderson (2019) for an analysis of how in atrocities roles can change, and individuals in the course of the events can come to occupy all three roles. Anderson also notes that the division of actors puts them in seemingly static roles that fails to account for the actual individual positionality, which can change over time and according to the situation at hand. 13   See Crowe (2004) and Fogelman (1994).

Individuals as Bystanders to Atrocity Crimes    309 non-​intervention’ meant to actively carve out an identity as a bystander or non-​perpetrator” (Donà, 2018, p. 14). By neither participating nor actively supporting the violence, actors became vulnerable to victimization themselves. Donà notes that in such situations where “open resistance started to die out, acts of ‘non-​participation’ were situated closer to passive resistance than passive support for violence” (Donà 2018, p. 14). Donà’s analysis thus challenges the notion that passivity automatically amounts to collaboration. Lučić’s (2013) study of bystanders in the context of the conflict in the former Yugoslavia reveals additional layers of complexity. She points out that in wartime, the behavior of people often becomes determined by the absence of choice. It tends to be driven by strategies of survival. She explains that “[i]‌n a situation like this, the role of a bystander was not the result of a free choice motivated by whatever reason (ideological, career, etc.), but rather imposed by the perpetrators” (Lučić 2013, p. 49). According to Lučić (2013, p. 49), “those ‘bystanders’ were simultaneously victims who suffered traumas in their role of forced onlookers.” Donà’s and Lučić’s research adds insightful nuances and shows that bystander inaction should not be reduced to cases of (willful) collaboration, but that it can also be an instance of forced complicity, or even a form of resistance.14

4.  Types of Bystanders The term “bystander” has been applied to a wide variety of actors and roles in different kinds of situations of atrocity crimes (Brudholm, 2012, p. 118). For instance, Elie Wiesel (1982), in his novel The Town Beyond the Wall, wrote about direct witnesses, while Samantha Power (2001), in her article “Bystanders to Genocide,” wrote about officials “sitting in offices” far removed from where the genocidal atrocities were happening. In contrast, Irene Bruna Seu (2013), in her book Passivity Generation, does not address direct witnesses or powerful foreign officials. Instead, she investigates how ordinary individuals react to news about human rights violations perpetrated abroad. The three examples illustrate that the spatial position of bystanders to atrocities can differ significantly. In this respect, scholars like Cohen (2001) and Staub (1989; 2013) differentiate between internal and external bystanders. Internal bystanders are those who directly witness the atrocities or experience them from close by because they are part of the communities in which the atrocities take place, or they are physically present. External bystanders are those who reside outside the communities that are directly affected, and receive information about atrocities through intelligence, media, press releases from human rights organizations, etc. Scholars have also classified bystanders according to the types of behavior in which they engage. Hilberg (1992), for instance, distinguished helpers, who rescued and assisted victims, from gainers, who (in)directly benefited from the crimes against the victims, and onlookers, who somehow witnessed what was happening. One of the most elaborate typologies of individual bystanders to atrocity crimes has been developed by Bar-​On (2001, pp. 139–​143) in the context of his research on the Holocaust.15 Bar-​On’s typology not only 14 

The problem is that all these different states are covered by the same behavioral manifestation of passivity. all types will be discussed: only those that are most relevant to show the scope of bystander (in)action. Many of the bystander types are, however, not unique, and they are also distinguished in other research. Paull et al.(2012) in their work on workplace bullying distinguish similar types. Kaufman 15  Not

310   Roland Moerland reflects spatial categorizations, but also different types and forms of (in)action. Bar-​On’s distant bystander closely resembles the external bystander. Although often living in free, democratic societies, they did not use this opportunity of freedom to act. According to Bar-​On, these bystanders tended to live in disbelief regarding the information that did reach them. This skepticism was often combined with a sense of indifference and private comfort, since the events took place far away from where they lived. In contrast, the emotionally related bystander was “well interwoven with the perpetrators, who see themselves, in retrospect, as victims of the historical events that invaded the safe atmosphere of their homes and brought turmoil into them” (Bar-​On, 2001, p. 143). These, for instance, include the family members of the perpetrators, who, in order to protect their own well-​being, did not dare to ask critical questions. Bar-​On also distinguishes an opportunist bystander who has knowledge or could have had the knowledge about what was happening but chose to be willfully blind because of personal ambitions. To make use of the opportunities provided, opportunistic bystanders disregarded the violent practices of the regime, but also ignored the unpleasant knowledge that the regime supported their ambitions (Bar-​On, 2001, p. 139). In this case, one could think of the business entrepreneur that takes advantage of the atrocity situation.16 Street-​bystanders all too easily accepted the regime’s propaganda while not being interested in the fate of the victims (Bar-​On, 2001, pp. 139–​140). This applies to many ordinary citizens in society. Bar-​On highlights that their lack of interest often arose out of the idea that the victims were not a part of society anyway, while at the same time being more concerned with the interest of their own group who had been suffering as well. Bar-​On (2001, p. 140) furthermore discerns the ideologically oriented bystander, whose personal ideological orientation and ideas support the atrocities perpetrated against the victims.17 In contrast, the institutionalized-​rational-​bystanders are not driven by ideology, but do not protest atrocities to avoid jeopardizing the institution or organization they are faithful to or work within (Bar-​On, 2001, p. 141). This type is closely related to the professional bystander, who has a professional interest in certain processes or aspects related to the destruction of the victims, but by focusing on the professional duties, issues, and challenges, this actor does not care about how his actions facilitate the process of perpetration (Bar-​On, 2001, p. 141).18 Bar-​On’s

(2019) developed a typology in the context of his research of sexual violence, and his types also show resemblance with those discerned by Bar-​On. Interestingly, Kaufman makes a distinction between “excused” and “unexcused” bystanders. He notes that “Individuals may have reasonable excuses for not intervening and thus be justified in not acting as upstanders.” (Kaufman, 2019, p. 47). 16 The

opportunist bystander closely resembles Bar-​On’s (2001, p. 141) career bystander, “who gave up his moral or ethical role for pragmatic reasons, possibly mixed with some level of anti-​Semitic feelings and envy, and a certain degree of opportunism as well.” Here one can think of an artist or academic, who was not asked to do anything and for whom there is no urgent need to act or speak out. 17 The sixth type of bystander Bar-​ On (2001, p. 143) calls the other hating bystander, but “their indifference for the ‘other’ did not start with the Holocaust and did not end with it.” According to Bar-​ On (2001, p. 143) these bystanders “can be found in some of these places today, which have the highest rates of Neo-​Nazism in Germany. [They] live in closely knit, usually quite simple and homogenous neighbourhoods or villages, in which every ‘other,’ especially those denounced by the powerful (Church, military, or government), are not worthy of human support or empathy.” 18  This category is closely related to Bar-​On’s (2001, p. 142) enlightened bystander: for these actors, it is less about professionalism or career orientation. What drives these actors is the excitement that the

Individuals as Bystanders to Atrocity Crimes    311 typology is insightful because it makes us aware of the wide range of bystander positions. Moreover, what becomes clear is that much bystander behavior does not necessarily involve passivity or omission. It therefore better clarifies why some bystanders can be seen as collaborators. Staub (1993, p. 327) thus explains that bystanders are often semi-​active participants, who boycott the business of the victims, who break off relationships with friends and colleagues, and who take part in the symbolism and rituals of power. According to Barnett (2017, p. 633), over time, the meaning of the term “bystander” and its use began to change: from denoting a passive actor that did not speak up and assist victims, to including actors who were somehow complicit in, participated in, and benefited from the crimes. From Donà’s and Lučić’s research, we can also add the imposed bystander, who is compelled to remain passive. Lučić (2013, p. 49) explains that bystander behavior can be imposed through force and coercion.19 The term has thus become more inclusive. The downside of this development, according to Fulbrook (2019, p.15), is that the term “bystander” has become an unstable catch-​all phrase that includes a diffuse and heterogeneous group of actions and actors. This not only complicates drawing the lines between bystanders and perpetrators, but also risks making the term meaningless, as it becomes overused (Barnett, 1999, p. 12). Meanwhile, several scholars have questioned the value of such a vague umbrella term. Cesarani and Levine (2002) have therefore called for a critical reflection of the concept, and Bloxham and Kushner (2005) have criticized the concept’s current use. According to Fulbrook (2019, p. 30), “as a catchall concept, it has limited use and to capture the nature of the motivations and actions, developing other concepts and categories is useful.”20 One can think of categories such as collaborators, beneficiaries, functionaries, facilitators, onlookers, spectators, observers, etc.21 Although these categories might add a level of precision, the problem remains that these categories are also difficult to define, are broad, and can overlap.

5.  A Bystander Personality? Given the wide range of bystander types, Bar-​On (2001, p. 130) suggests that the bystander as a person with a specific character trait or personality type probably does not exist. Instead,

new society offered all kinds of opportunities for developing their profession or field beyond them or the regime, and whether the regime would survive was not of real interest. 19  This idea can also be found in the work of Vetlesen (2000, p. 521), who introduces the “bystander by assignment” type, with regard to UN soldiers who, on the basis of a UN mandate, are designated to be a neutral party safeguarding a safe and neutral area. According to Vetlesen, given their assignment and presence, they are assigned as bystanders. 20  According to Fulbrook (2019, p. 23), the atrocity triad itself is not optimal. By definition, bystanders are outside atrocity situations, but in atrocity situations there is no outside, compared to single incidents of violence that lack the structural repressive context of mass atrocities. 21  Levine (2010, p. 158) has used the term “onlooker,” because it is more precise and underscores “the act and the proximity of witnessing and suggests greater responsibility for outcomes, even perhaps a greater emotional range of available responses to them and a greater implicit reinforcement to the perpetrators, than does the more neutral sounding ‘bystander’.”

312   Roland Moerland there are many bystander behaviors exhibited in different positions with different levels of exposure to the atrocities (direct eyewitnesses vs. distant listeners, etc.). Donà (2018, p. 3) argues that even if the identity of a bystander can become characterized by a specific kind of behavior, it remains a type of behavior and not a fixed identity. Moreover, a role as a bystander can change, and depending on the personal circumstances and the situation, bystanders can become collaborators or even perpetrators, but also resistors and/​or rescuers and vice versa. This fluidity is difficult to combine with an approach that sees bystanders as having certain fixed personalities or identities. Interestingly, the first major systematic analyses regarding rescuers did establish personality as a crucial factor underlying rescue behavior. Oliner and Oliner (1988) showed that rescuers had what they called an altruistic personality. In contrast, much less research has been conducted on “the bystander personality.” Notable exceptions are the works by Monroe (2008) and Baum (2008). Monroe’s (2008) narrative interpretative research focused on the Holocaust. She compares the different actors involved in the atrocity triangle, revealing relevant insights regarding bystander personality. Monroe (2008, p. 704) explains that bystanders, compared to rescuers or perpetrators, have a particular self-​concept. They tend to have low self-​esteem and see themselves as passive individuals who lack control over the situation that they are in, while also seeing themselves as being low in efficacy (Monroe, 2008, p. 712). According to Monroe (2008, p. 715), this passive bystander self-​image constrained their choices concerning whether and how to act. Monroe (2008, p. 720) furthermore found that bystanders often had a fatalistic worldview in which their faith was determined by bigger developments. Monroe (2008, p. 723) explains that the “[p]‌assive self-​images and an external locus for agency resulted in [bystanders] accepting whatever life brought them and the impression that the suffering of others was something over which they had no control.” Furthermore, bystanders placed a higher focus on community and society and they often utilized in-​and out-​group categorizations (Monroe 2008, p. 700). Personal losses and trauma or problems in society made bystanders sensitive and concerned about their own (group’s) misery, instead of the suffering of others (Monroe 2008, p. 700). Monroe also observes that while perpetrators and rescuers had strong (opposite) moral value systems that they had integrated into their sense of who they were, bystanders appeared to be more morally insensitive, in the sense that no significant values were driving their passivity. Such moral insensitivity is typical of most bystanders, Monroe (2008, p. 723) concludes. Reflecting on these insights, Fujii et al. (2012, p. 416) explain that what makes bystanders different from perpetrators is not the psychological processes they engage in, but differences in the elements that make up their identities and thereby affect (constrain) their choices.22 Although Monroe emphasized the self-​concept, in her study she also highlighted the importance of the bystanders’ perceptions of themselves in relation to others. For Monroe, their passivity was not simply the result of character. Bystanders’ perceptual relationships toward victims is also critical in understanding their behaviors. Monroe’s (2008, p. 227) research shows how bystanders are affected by societal processes of in-​and out-​group categorization and dehumanization, and how ideological propaganda shaped bystanders’ worldviews, which in turn affected how they behaved. Baum (2008) compared other studies that investigated the personalities of perpetrators, victims, and bystanders. Baum’s comparative analysis confirms Monroe’s findings that 22 

Fujii’s (2009) study found similar results concerning the low efficacy seen in bystanders.

Individuals as Bystanders to Atrocity Crimes    313 bystanders have low self-​esteem and perceive less opportunities to help (Baum, 2008, p. 155). Baum (2008, p. 164) points out that “[m]‌ore than any other trait, the desire to fit in and conform to external forces is what motivates the bystander.” Baum furthermore notices that bystanders tend to be less empathetic and are emotionally less developed than rescuers. In this context, Baum (2008, p. 165) refers to the findings of a Danish study investigating rank-​and-​file Nazis, and according to Baum, many of them could be considered bystanders. These actors were found to be “socially full but emotionally empty,” they had “no consistent mind of their own; relying instead on others and adapting to whoever was in power” (Baum, 2008, p. 165). Baum (2008, p. 166) concludes that because “[b]ystanders can be swayed to follow one direction or the other,” they can easily change to the role of rescuer or perpetrator and back. As will become clear in the following sections, many scholars seek the explanation for bystander behavior not in personality, but rather in external structural factors and (socio-​) psychological mechanisms and processes. According to Bar-​On (2001, p. 130), bystanders are not specific individuals, because “[w]‌e may all have the capacities to perform most of these behaviors in many different situations. Very few of us find ways to overcome these constraining forces, thereby becoming rescuers or performing acts of resistance.” Staub has pointed out that bystanders are not simply persons who exist from the outset, but that they undergo changes that allow them to stand by and not act.23 The following section will first discuss the available research on the so-​called bystander effect that originates from the field of social psychology, and that transcends atrocity crimes to bystanders in any harmful or violent situation.

6.  The Bystander Effect The origins of the field of bystander research can be traced back to an event that happened in 1964, when a young woman named Kitty Genovese was stabbed to death outside the apartment building where she lived. Although many people had witnessed the crime, nobody had intervened or called for help.24 The incident raised the question of why people 23  According to Staub, physical passivity does not mean psychological passivity. Bystanders need to deal with their inaction, and this is a complex psychological process. Barnett (2012, p. 36) phrases it as follows: “Perhaps the greatest complexity here is the fact that we are looking at what the historian Michael Marrus has called “negative history”: the history of what did not happen. In looking at the bystander, we are looking at what seems on the surface to be silence, indifference, apathy, and passivity—​ in other words, at a lack of action. The big question is: what lies beneath the surface? Fear? Prejudice? Hatred? Unseeing and unthinking obedience? Apathy?” 24  Initially, the murder did not attract much attention, but an article on the murder that was published two weeks later in the New York Times triggered public outcry. It reported that “for more than half an hour 38 respectable, law‐abiding citizens in Queens watched a killer stalk and stab a woman in three separate attacks in Kew Gardens. Twice the sound of their voices and the sudden glow of their bedroom lights interrupted him and frightened him off. Each time he returned, sought her out and stabbed her again. Not one person telephoned the police during the assault; one witness called after the woman was dead. That was two weeks ago today. But Assistant Chief Inspector Frederick M. Lussen, in charge of the borough’s detectives and a veteran of 25 years of homicide investigations, is still shocked. He can give a matter‐of‐fact recitation of many murders. But the Kew Gardens slaying baffles him‐not because it is a

314   Roland Moerland had failed to act although it was obvious that someone was in immediate danger and thus in need of assistance. To address this question, Darley and Latané (1968a, 1968b, 1969, 1970) conducted the first pioneering studies into what would become known as the “bystander effect.” Their research revealed that it was not apathy or indifference that led to unresponsiveness. Darley and Latané (1969) argue that basic norms require us to help people in despair, and that not helping produces feelings of guilt in bystanders. Therefore, people are generally prone to help. The problem is, however, that intervention is not simply an act, but a process that can be impeded at various stages. According to Darley and Latané (1970), bystanders go through a process that consists of five stages. In order to intervene, bystanders need to first notice a critical situation, and second, perceive it as an emergency. Third, they must develop a feeling of personal responsibility, and fourth, they need to be confident that they have the skills required to intervene successfully. Lastly, they must come to the conscious decision to help. Their research indicates that several mechanisms can interfere with this process, causing unresponsiveness (Latané and Nida, 1981, pp. 308–​309). They conclude that helping is most likely to be reduced when the situation is ambiguous and not readily perceived to be an emergency. Helping is also less likely when the number of bystanders increases. The number of participants influences three mechanisms that can result in passivity. First, according to Darley and Latané, the failure to intervene can be explained not by how bystanders relate to the victim, but how they relate to other bystanders present in the scene. The fact that multiple actors are present leads to a diffusion of responsibility that lessens the feeling that actors have their own responsibility to act. Actors assume that others will help, and as a result, there is less pressure for them to act themselves. Second, having more actors present in the scene can lead to pluralistic ignorance due to the social influence they exert. This means that although individuals might perceive a situation as problematic, when others refrain from action, individuals might come to think of the situation as non-​problematic. Individuals rely on the reactions of others when interpreting and defining a situation. Aronson (2004, p. 39), in his analysis of Darley and Latané’s research on the bystander effect, concludes that non-​intervention, in essence, is an act of conformity. Third, in situations where there are a high number of participants, value apprehension, or audience inhibition, arises, which occurs when people are less willing to take responsibility out of fear of being judged or doing the wrong thing, or fearing backlash from getting involved in other people’s business. Interestingly, further research by Fischer et al. (2011) has indicated that the perceived danger of an emergency is an important boundary condition for the bystander effect. In dangerous situations, actors can be fearful to intervene, believing that intervention can come at a cost or risk. However, according to Fisher’s research, contrary to what one would expect, bystander inhibition is less pronounced in more dangerous emergencies. This is because dangerous situations are more readily perceived as being emergencies in which help is needed. Fisher’s research, however, also points out that when it comes to immediately dangerous situations, having more bystanders present in the situation reduces fear, because other bystanders can offer social, physical, or psychological

murder, but because the “good people” failed to call the police” (Gansberg, 1964). Later investigations raised doubt about the accuracy of the reporting in this article. The editor’s note to the article revealed that later reporting by the New York Times and others has called into question significant elements of this account. See also Levine et al. (2007).

Individuals as Bystanders to Atrocity Crimes    315 support when intervening. In addition, dangerous emergencies often require the cooperation of others to (effectively) resolve them (Fischer et al., 2011, pp. 533–​534). Laner et al. (2001, p. 26) concluded that Latané and Darley’s research on the bystander effect raises doubts about whether social norms and personality traits are relevant predictors of bystander intervention. The situations and the psychological mechanism they trigger override these norms and traits that might propel individuals to action.25 When it comes to individual bystanders to atrocity crimes, the existing research on the bystander effect often tends to be the go-​to explanation (Suedfeld, 2000). Although such research is valuable for understanding bystander passivity, one must also acknowledge that atrocity situations are quite different from the Genovese situation or the experimental set-​ ups used in the mentioned studies. The question is whether these insights can fully explain why individuals fail to intervene when witnessing atrocity crimes. According to the previously discussed research, having a clear, dangerous emergency should inhibit passivity. Atrocity situations often present clear, dangerous emergencies, but still an overwhelming majority of people do not act. It is, therefore, relevant to understand the particular context of atrocity situations and the forces and mechanisms at play.26 We need to understand why individuals do not act, and how they subsequently cope with not acting. What needs to become clear is why, although atrocity crimes involve dangerous situations, many other aspects typical of atrocity contexts seem to override this factor and foster passivity.

7.  The Context of Atrocity Crimes What makes an atrocity crime different from the murder of, for instance, Kitty Genovese is its political, institutional, and ideological context (Smeulers and Grünfeld, 2011, p. 91). This particular context plays an important role in explaining how and why individuals become

25 The

research discussed found no effect of personal dispositions on bystander apathy, and the research explains the bystander effect in relation to the situation and interaction between actors. A notable exception is the research by Hortensius and de Gelder (2018). Using neuro-​imaging technology, their research has resulted in findings that challenge the general idea that personality factors are irrelevant when it comes to explaining the bystander effect. They conclude that “[t]‌his situational increase in personal distress, combined with dispositional levels of personal distress, increases the activation of the fight freeze-​flight system and results in a reduced likelihood of helping. Indeed, higher levels of personal distress decrease helping behavior when the possibility of escaping the situation is easy (Batson et al., 1987). Ultimately, bystander apathy occurs as the consequence of an inhibitory response, leading people to try to avoid the situation, but this is not a conscious decision” (Hortensius and de Gelder 2018, p. 252). They do add, however, that this is only a small part of a bigger puzzle: “This is not to say that previous decision-​based explanations are obsolete. Cognitive, situational, and dispositional explanations are not mutually exclusive, and a multilevel approach is crucial in understanding helping behaviour and the lack thereof ” (Hortensius and de Gelder 2018, p. 253). Donà (2018, p. 15) also noted that often dispositional, relational, and situational explanations are placed in opposition to one another. However, these explanations coexist when explaining bystander behavior. 26  When taking stock of research on the bystander in social psychology, we can see that it developed as a coherent field of research. When it comes to research on individual bystanders to atrocity crimes, such a coherent framework is lacking. As actors, they are rarely the focus of investigation and their behavior is often addressed on the sidelines of research that focuses on perpetrators or rescuers.

316   Roland Moerland bystanders. As Zimbardo (2007, p. 317) notes, when trying to understand bystander behavior, what we can learn from the research is not to investigate who does or does not help, but rather study what the social and psychological features of such situations are. These insights are often gained from studies investigating perpetrator action, but as Kahn (2012, p. 68) observes, many of the insights can also be used to explain bystander inaction. The following sections will first address the societal context, and subsequently discuss the most relevant social psychological mechanisms and processes involved in bystander inaction. Atrocity crimes are often part of a broader process of repression or conflict involving increasing political violence against those who are (perceived to be) a threat (Smeulers and Grünfeld, 2011, pp. 90–​96). In situations of terror and repression, bystanders fear becoming victims themselves due to retaliation for acting, or they fear the backlash their loved ones may receive (Minow, 2017, p. 827). While in non-​atrocity situations danger inhibits passive bystander behavior because the emergency is clear, in the context of atrocity crimes, insecurity and danger can be impeding factors. Ultimately, self-​protection causes inaction.27 Lučić (2013, p. 48), for instance, explains, in the context of her study of the conflict in the former Yugoslavia, that “often no ideologically prepared parasitism was connected to the bystanders’ behavior, but instead the fear induced by the uncertainty about the intentions of neighbors or paramilitary soldiers were the reasons for the local population to remain passive. [ . . . ] Staying passive was therefore a form of self-​defense.”28 According to Barnett (1999, p. 95), an implication of totalitarian repression is that “a matrix of complicity is created that is often so complex that individual citizens, both at the time and later, often view themselves as victims, as having been ‘powerless.’ ” So, individuals who remain passive can come to see themselves as victims instead of bystanders. Staub notes that by remaining passive, bystanders might have reduced the chance of getting victimized and thereby have protected their physical selves, but self-​protection can cause a new threat: one to the psychological self. According to Staub (1993, p. 327), bystanders who remain passive will probably experience feelings of empathetic distress or guilt. Inaction in the face of human suffering is, generally, not in line with how individuals would like to see themselves; it conflicts with their values and positive self-​image. Bauman (2003, p. 138) and Kahn (2012, p. 70) explain that bystanders are confronted with what Festinger referred to as cognitive dissonance, which arises out of holding simultaneously two contradictory and incompatible views or cognitions: the cognition that you are a fair and just person, with the cognition that by remaining passive you are hurting another human being. Tavris and

27  Even if people are willing to help, repressive systems that come to control societies also leave less opportunities to help. Edgren (2012, p. 17) notes that “[o]‌ne of the most important societal explanations for the passivity of the bystander is found in the totalitarian state. It has total control of the important institutions in society.” 28  Kahn (2012) refers to the work of Elizabeth Noelle-​Neumann, who discusses the implications of forced silence. Kahn explains that a spiral of silence can develop because people are not likely to speak up when they are in a minority or out of fear of reprisals. In such situations, pluralistic ignorance can occur, when individuals do not agree to what is happening, but given the inactions of other mistakenly assume that others accept it. “In other words, in a genocidal situation, a majority of the bystanders may privately hold the belief that the atrocities being committed are immoral, but may mistakenly assume that everyone else finds them acceptable” (Kahn, 2012, p. 74).

Individuals as Bystanders to Atrocity Crimes    317 Aronson (2007, p. 26) note that such dissonance tends to trigger powerful dynamics of self-​ justification. To solve the dissonance, individuals resort to psychological measures. One of the most effective ways to reduce dissonance is to maximize the culpability of the victim. The inaction becomes justified if the victims deserved their suffering (Aronson, 2004, pp. 178–​179). Kahn (2012, p. 72) refers to Bandura’s (1999) concept of moral disengagement as being relevant in this context. Bandura’s research reveals that people can convert their questionable and harmful actions into acceptable ones by disengaging self-​sanctions that would normally follow in reaction to questionable behaviors. Such moral disengagement happens by minimizing the sense that there is a direct link between an actor’s actions and the harmful outcomes by diffusing and displacing responsibility. Or, individuals redefine the actions or the negative consequences that follow by minimizing them, or by constructing them as sad but necessary. This redefining can be done by reconstructing our perception of the victims as somehow deserving of what is happening to them through, for instance, victim blaming (Zimbardo, 2007, pp. 310–​311; Bilewicz and Vollhardt, 2013, p. 290). In this context, scholars also highlight the psychological process of “just world thinking” (Staub, 1989, pp. 17 and 79; Aronson, 2004, p. 252). Bystanders tend to believe that those who suffer must have deserved this somehow, because generally people are not arbitrarily targeted, so there must be a reason for the victims’ suffering. Once bystander behavior is justified, the urge to act diminishes. Once inaction is justified, it is not only easier to remain inactive, but also the chances increase that bystanders become more active collaborators or even perpetrators. Inaction can lead to a vicious cycle of more violence, while early action can generate a cycle of resistance and ultimately rescue (Tavris and Aronson, 2007, pp. 27–​ 28; Bilewicz and Vollhardt, 2013, p. 294; Barnett, 1999, p. 158). Many of these mechanisms are not unique to bystanders in atrocity situations; they are general psychological mechanisms used by individuals to cope. The ideological context of atrocity crimes tends to facilitate their operation. Atrocity crimes are committed within a particular ideological context that promotes, justifies, and legitimizes use of such violence (Smeulers and Grünfeld, 2011, pp. 96 and 97). Staub (1989, p. 41) points out that atrocity situations make people uncertain, and this uncertainty motivates them to gain a renewed comprehension of the situation. In such situations, ideologies become attractive, because they offer such a renewed comprehension. Ideological propaganda shapes peoples’ worldviews and is a rich source of inspiration to draw from to make sense of the suffering of other human beings and people’s inaction in the face of it. Ideologies allow bystanders to deal with their inaction and accept what is happening. It can thus be the case that people do not attempt to prevent or intervene, not necessarily out of fear, but because they (have come to) share the same hateful, xenophobic, and/​or racist worldviews as the perpetrators. According to Alvarez (2008), ideologies differentiate “us” and “them,” draw on (past-​) victimization, dehumanization, and present an absolutist utopian worldview. These elements, especially dehumanization, play an important role. The victim group is placed outside the universe of obligation, and as a result, the conventional norms and values no longer apply, resulting in no responsibility to rescue or act (Zimbardo, 2007, pp. 307–​313). Scapegoating is another relevant mechanism, which entails a particular form of victim blaming whereby victims are blamed for things that are not their fault (Aronson, 2004, p. 267). Lučić (2013, p. 43) notes the function of ideological propaganda is not only to incite violence, but also to pacify in-​group members and help them to accept the exclusion and persecution. According to Bilewicz and Vollhardt (2013, pp. 285 and 289), ideological propaganda not only motivates

318   Roland Moerland the perpetrators, but it also reduces the potential of rescuing behavior among bystanders. When victims are presented as threats and inhumane, it is less likely that bystanders help. Ideology provides the substance on which the individual psychological mechanisms, such as moral disengagement, rely on for their operation. Finally, the atrocity crimes are the result of an institutional policy process that authorizes the violence (Kelman and Hamilton, 1989). Staub (1989) explains that people tend to accept definitions of reality from those who are in power: the authority. When acts are ordered, encouraged, or approved of by the authorities, people tend to be more willing to accept or condone them. Authorization implies that the actions are “officially” justified and sanctioned. Authorization has been used by Kelman and Hamilton (1989) to explain why so many people are willing to participate in and condone policies that call for the mass killings of individuals. Bystanders, because the action they are witnessing is not only ideologically justified, but also authorized and therefore legitimate, are absolved of making choices concerning the responsibility for their actions and their consequences. Milgram’s (1974) research on obedience shows how authority situations enable people to do away with their responsibility.29 According to Milgram, in situations of authority, individuals no longer see themselves as people with agency who act on their own volition, but rather as people acted upon. They end up in an agentic state. The will and initiative for action or inaction is perceived to be located in those who have the authority. The notion of authority highlights another important aspect when it comes to understanding bystander behavior; namely that atrocities tend to be organized by the authorities in power, and do not tend to happen spontaneously. How perpetrators organize their crimes can facilitate bystander behavior. Organizations in certain ways facilitate bystanders’ distance physically, symbolically, and psychologically from victims. Bauman (1992), for instance, observed that the crimes often involved bureaucratic organizational structures and processes that compartmentalize activities, making it harder for individuals to grasp what their actions will ultimately bring about. According to Verdeja (2012, p. 157), such bureaucratic compartmentalization blurs the line between the perpetrator and the bystander. Moreover, Gaunt (2012, p. 144) notes that in organizing their crimes, perpetrators, in order to avoid detection, keep the bystanders ignorant by manipulating them through disinformation and avoiding detection. In these processes, euphemistic language is used to obscure the true nature of what the perpetrators are engaged in.30 As Bar-​On (2001) notes, due to how the crimes are organized, the dangerousness and the detrimental implications of state policies might not be immediately clear. Atrocity violence, although it can also generate backlash, does often fabricate passivity in the population. Atrocities are not a single act, but a gradual process that involves smaller events and acts of (forced) cooperation (Barnett, 2012, p. 45). The first acts of bystanding

29 

How Milgram conducted his experiment has been criticized. It has been noted that transcripts were incorrect, people were not properly debriefed, and remarks of skeptical participants were not properly acknowledged, etc. (Griggs and Whitehead, 2015). Although these and other aspects affect the ethical, theoretical, and empirical validity of the study, it does not automatically render Milgram’s insights on authority meaningless when it comes to explaining atrocity crimes (Miller, 2004). 30  Bar-​On (2001, pp. 129–​130) adds that the “[p]‌erpetrators who are involved in intentional silencing of their atrocious acts can count on the special combination of the undiscussable (taboos: issues which cannot be discussed openly in our society) and the indescribable (gaps between frames of references: issues that we have no way of describing to each other).”

Individuals as Bystanders to Atrocity Crimes    319 can be seen as simple, initial steps along a continuum of destruction and their implications, if even acknowledged, are probably deemed negligible and no cause of real concern (Staub, 1989). Kahn (2012, p. 69) refers in this context to the so-​called foot-​in-​the door technique. Foot-​in-​the-​door refers to a tendency to gradually, step by step, accept larger, more problematic actions. Small acts of compliance, of doing nothing, of accepting, gradually lure and entrench actors in the bigger genocidal (or otherwise mass atrocity) project.

8.  Explaining External Bystander Behavior Individual external bystanders compose the biggest group, especially since new technologies make information globally available in vivid, real-​time ways. Therefore, physical distance no longer equals ignorance. Bauman (2003, p. 139) notes that because of this, “[w]‌e all are bystanders now—​witnesses to the pain-​inflicting and the human suffering it causes.” How do individual external bystanders deal with such knowledge of distant suffering? Information on atrocities is conveyed to us through a range of media, such as the internet, television, or newspapers and press releases. Despite this information, there is often a gap between knowledge and action. Bruna Seu (2011b, p. 140) notes that when the information reaches individuals, their reactions often do not match the scale of the atrocities, and mostly the information somehow disappears in a “cognitive black hole.” Minow (2017, p. 828) explained that people fear being overwhelmed regarding what action would be required from them, or they are desensitized or numbed due to overexposure to human suffering. Studies examining media coverage and representation argue that individuals suffer from compassion fatigue, and get desensitized and numb, because patterns of reproduction overload people. This diminishes their ability to feel or respond (Slovic, 2012).31 Bruna Seu (2011a, pp. 541–​545) investigates how individuals react to information from human rights organizations. She distinguishes several possible explanations for external bystander passivity. First, desensitization can occur because individuals shut down as a result of information that is too distressing to acknowledge. In such cases, individuals cope and try to protect themselves against traumatization. Second, desensitization can happen because individuals become habituated to the information about suffering. Being repeatedly confronted with information about atrocities dims the reaction to it, which, after overexposure, can lead to a lack of response. Here individuals go through a process of normalization (Bruna Seu 2011a, p. 542). Third, and adding to previous research on these issues, according to Bruna Seu (2011a, p. 543), individuals might not necessarily fail to react because of the traumatic nature of the information itself or overexposure to it, but because they find the tactics used by the organizations that deliver the information too confronting. She explains that the information conveyed by human rights organizations is often guilt evoking, which can be

31  Smolin points out an additional relevant aspect when understanding external bystander passivity. According to Smolin (1999, p. 461), “[i]‌nstead of worrying about what happens to human beings who deliberately turn away from evil and suffering, we now must be concerned with what happens to human beings who deliberately choose to observe such suffering.” Media is not perceived as a source of information but entertainment, turning bystanders into spectators and atrocities into spectacles.

320   Roland Moerland perceived by the addressees as emotional blackmail aimed at getting them to act. In such cases, individuals end up focusing on the “manipulative” strategies used by human rights organizations and how the message is conveyed instead of its content. The result is that individuals react as critical consumers instead of as moral agents. Bruna Seu (2011a, p. 545) concludes that “it shows how effectively bystanders shift the moral gaze from themselves to the agencies, the ones who, in audiences’ eyes, have to justify their behavior. The storyline is not one of social responsibility and empathy, but one of assessment of trustworthiness of campaigners. The resulting moral imperative is the legitimation and normalization of suspicion and skepticism.” This “positions audiences as the victim,” which, according to Bruna Seu, provides individuals with a compelling justification for their bystander passivity (Bruna Seu, 2011a, p. 545).

9.  The Moral and Legal Responsibility of Individual Bystanders Once we comprehend that bystanders are not neutral and their passivity is not innocent, the term automatically takes on a judgmental overtone, raising moral and legal questions (O’Donnell, 2005, p. 635: Brudholm, 2012, p. 119). Scholars generally agree that bystanders bear a moral responsibility. According to Verdeja (2012, p. 154), moral bystanders “bear some responsibility by virtue of being in a position to intercede and consequently alter the direction of events, and yet fail to act.”32 To be morally responsible, certain criteria need to be fulfilled (Verdeja, 2012, p. 158). First, individual bystanders must have had knowledge. This might not always be the case, because people can be unaware of what is happening or fail to realize the true implications of their behavior.33 In addition, individuals can receive information, but simply not believe or comprehend it. Therefore, according to Verdeja, individuals should not simply have factual knowledge, but an understanding of what the facts mean. It is about awareness. Verdeja (2012, p. 159) notes that when this comprehension materializes, bystander behavior becomes a moral issue.34 In addition to knowledge, individuals must have agency, which is a complex element, given the earlier discussed situated positionality of bystanders (Verdeja, 2012, p. 159). Agency means that actors have the will, choice, and ability to act. Acknowledgement and choice are related, in the sense that once one comprehends the situation, standing by becomes a choice (Goldberg, 2017, pp. 650 and 652).35 As Guiora (2017, p. 34) explains: “a bystander sees, yet chooses to ignore.

32 

Guiora (2017, p. 88) explains that in order to be considered responsible, a bystander “must be in a position to directly observe, assess, and act.” According to Verdeja (2012), those who were unable to act due to justified circumstances are not moral bystanders, because they lack the required moral agency. 33  This is a complex aspect, because in hindsight, individuals may claim ignorance to exonerate themselves, while, in reality, they had knowledge or were willfully ignorant. Cohen (2001) reflected on such “states of denial” extensively in his work on bystanders to gross human rights violations. 34  Also, this can often only be determined in hindsight, which is similarly challenging. 35 According to Goldberg (2017, p. 652), “Bystanders, then, in judging risk, chose neither overt collaboration nor resistance.”

Individuals as Bystanders to Atrocity Crimes    321 That is the essence of the bystander.”36 However, the problem according to Verdeja (2012, p. 160) is that bystanders are embedded actors who are constituted and constrained by their contexts. The structural forces can (positively and negatively) affect bystanders’ agency. In addition, given bystanders’ varied roles and situations, their ability to act and influence in the situation vary, which has implications for their “level” of responsibility.37 The last aspect of moral responsibility is the intention or motivation underlying bystander passivity. Verdeja (2012, p. 165) notes that actors can occupy a range of positions along the spectrum of agency, and their actions can be informed by different motivations. What complicates the matter is that the same kind of passive behavior can result from different intentions. Also, in hindsight, individuals may give a more beneficial explanation as to why they refrained from acting. The underlying intention can thus be difficult to grasp. However, if we abolish the element of intention, we may create an equivalence between different groups (selfish and unselfish actors, ideological and apolitical actors) (Verdeja, 2012, p. 166). In addition, Esquith (2010, p. 46) adds that what makes bystanders morally responsible is not only their passivity, but also that they often derive certain benefits from the violence that is perpetrated. Moral responsibility does not automatically mean that bystanders are also legally responsible. Certain national legislations (so-​called good Samaritan laws) do include duties to act when people are in need of help, but the duty is limited when administering help is too risky (Esquith, 2010, p. 61).38 In international criminal law, such duties are currently lacking. Fletcher (2005, pp. 1030–​1031) explains that holding individual bystanders legally accountable would violate fundamental principles of liberal legalism underlying international criminal law. In addition, international criminal justice focuses primarily on those who are most responsible; the bystander is therefore generally not addressed (Fletcher, 2005, p. 1036; Botte-​Kerrison, 2017, p. 883). Moreover, holding bystanders accountable could result in holding entire communities responsible, which runs the risk of attributing collective guilt, and that is something the individual nature of trials aims to prevent. Botte-​Kerrison (2017, p. 882) does, however, argue that developing a bystander responsibility could help to achieve certain goals of international criminal justice, such as deterrence, reconciliation, 36  To illustrate how crude such choices can be, Guiora, in his study on bystanders to the Holocaust, refers to an example given in Horwitz’s (1990) study In the Shadow of Death: Living Outside the Gates of Mauthausen. Guiora refers to a complaint filed in 1941 by a nearby resident of Mauthausen: “In the Concentration Camp Mauthausen at the work site in Vienna Ditch, inmates are being shot repeatedly; those badly struck live for yet some time, and so remain lying next to the dead for hours and even half a day long. My property lies upon an elevation next to the Vienna Ditch, and one is often an unwilling witness to such outrages. I am anyway sickly and such a sight makes such a demand on my nerves that in the long run I cannot bear this. I request that it be arranged that such inhuman deeds be discontinued, or else be done where one does not see it” (Horwitz, 1990, p. 35). 37  One could argue that those most proximate have the most impact. However, proximity is relative due to authority structures and the impact of modern technologies, and it can be that powerful external bystanders have a bigger influence than internal bystanders to change the situation (Verdeja, 2012, p. 161; Guiora, 2017, p. 88). Moral proximity and physical proximity might therefore not always overlap; distant external bystanders can bear great moral responsibility. Williams (2019) developed a typology of action and inaction in which spatiality plays a crucial role, and he connects it to differences in understanding the attitude and behavior of actors, including bystanders. 38  Guiora (2017, p. 106) explains that “[r]‌equiring intervention when circumstances are unclear and the unfolding situation is uncertain and shrouded in murkiness is to impose an unreasonable duty on the bystander. In other words, the state would be deliberately endangering innocent members of society.”

322   Roland Moerland and creation of historical record.39 Although bystander responsibility remains undeveloped in current international criminal justice, international criminal law, by using doctrines of joint criminal enterprise, incitement, and aiding and abetting, makes it possible to hold accountable those who did not directly commit the offence, but were nonetheless complicit. However, due to their substantive requirements, these doctrines are inapplicable to bystander behavior.40 Fletcher (2005) notes that in addition to the limits imposed by legal principles and doctrinal constrains, there are two other inherent limitations in international criminal justice that affect the possibility of bystander accountability. “First, international criminal law adjudications are not able to parse out the variety of roles and relationships that bystanders may have to the atrocities. . . . Second, international criminal convictions single out and stigmatize the accused, normalizing the behavior of bystanders and potentially creating a false moral innocence for the unindicted and their bystander supporters” (Fletcher 2005, pp. 1075–​1076). Scholars have responded with various proposals to these limitations and constraints. May (2010), for instance, proposes a theory of legal complicity applicable to bystanders. According to May (2010, p. 143), bystander complicity would exist if the following two elements are fulfilled. First, the bystander’s behavior must have had a causal effect on the crime. It should have had a significant influence on whether harm would occur or not. Second, the bystander should be in a position to comprehend that his/​ her behavior could have contributed to the harm. According to May (2010, p. 144), even the reckless contribution to the harm can be sufficient for establishing legal complicity. May thus proposes to lower the mens rea standard, which, according to the author, is justifiable given the nature of the atrocity crime and the harm done. Botte-​Kerrison (2017) investigated whether the duty to rescue doctrine developed in domestic criminal law could be operationalized in the context of atrocity crimes.41 Botte-​ Kerrison (2017, p. 903) argues that introducing such a duty is not unrealistic, given the fact that aspects central to this idea are already present in doctrines and concepts applied in international criminal law. She refers, for instance, to notions such as complicity, the

39 Botte-​ Kerrison

(2017, pp. 882–​ 883) explains that bystander responsibility can facilitate reconciliation because surviving victims often also want those who stood by and facilitated the crimes to be held accountable. This can help to relieve tensions in society and avoid vigilantism in the aftermath. Addressing bystander responsibility can also have a deterrent and preventive effect, as one of the important causes of mass atrocities is addressed. Having criminal responsibility might help to incentivize bystanders to act and thereby create an additional obstacle to the commission of atrocity crimes. Including bystander responsibility could also help to create a more accurate picture regarding what happened. Lastly, according to Botte-​Kerrison, bystander responsibility would also better reflect the collective aspect of international crimes and their particular context. 40  Fletcher (2005, p. 1037) explains that these theories of liability do not extend to bystanders: “Aiders and abettors must have participated in the offense to a degree that their actions had ‘substantial effect’ on the commission of the crime. Those who witnessed or lived through mass violence may have had the requisite mens rea intending for the killing to occur or knowing that the atrocities would take place-​ but they did not commit the requisite actus reus for joint criminal enterprise liability to attach or to be considered an aider or abettor. Bystanders are defined in part by their distance from the violence.” 41  To develop her argument, Botte-​Kerrison relies on case law developed by international criminal tribunals such as the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda. Based on the analysis of case law, Botte-​Kerrison (2017, p. 907) comes to conclude that “the duty to rescue doctrine is consistent with the different forms of responsibility by omission developed in international criminal law.”

Individuals as Bystanders to Atrocity Crimes    323 responsibility for an omission, and the recognition that under certain circumstances, the mere presence of an individual at a crime scene can amount to criminal responsibility. According to Botte-​Kerrison, the duty to rescue implies that bystanders are accountable not for their participation in the commission of the crimes, but for their failure to prevent and stop them. To be responsible, bystanders must have knowledge of the crime, and they must have the ability to stop or prevent the crime, or to assist the victim, and deliberately choose not to do so (Botte-​Kerrison, 2017, p. 906).42 Instead of extending individual criminal liability by complicity or neglecting the duty to act, Drumbl (2005b, p. 1310) proposes to focus on collective modalities of accountability. He argues that criminal trials should not involve bystanders, but adds that this “does not mean that such individuals are blameless, or that they ought to be considered as blameless, or that they are entitled to the law’s intervening in a manner that pronounces their innocence” (Drumbl, 2005a, p. 573). He therefore proposes using collective sanctions or measures for communities that, through their inaction, have facilitated or generated atrocities (Drumbl 2005b, p. 1315).43 The proposals cannot readily be accommodated by existing arrangements, and thus require that existing doctrines are further developed and novel elements are introduced. Given the strict principles on which international criminal law operates, this remains a challenging exercise. The neglect of the individual bystander in international criminal justice is illustrative for the neglect of bystanders in transitional justice more generally. According to Fletcher (2007, p. 47), transitional justice mechanisms do not directly engage with bystanders, as bystanders “are the audience for, but not the subjects of, courts and commissions.” As a result, there is no authoritative response to bystanders’ roles in atrocities. However, if transitional justice is to live up to its aims, its mechanisms need to engage with bystanders. Fletcher (2005, p. 1027) argues that bystanders need to be involved in the process of rebuilding communities, because they shape their communities by how they remember the past and how they pass on their experiences to current and future generations.44 This means that bystanders are of crucial importance when constructively dealing with the past or ongoing atrocity crimes and conflict.

42  Guiora (2017, p. 15) argues that the duty to act on behalf of vulnerable victims is not only a moral, but also a legal obligation. Bystanders who do not help victims are breaking the social contract that they have with other members of society. Guiora (2017, pp. 107–​119) lists the following factors in assessing complicity: physical proximity to the victim, clarity of the situation, capability of providing assistance, degree of assistance required, and the degree of risk intervention implies. 43 Drumbl (2005, p. 1322) explains that his approach is informed by the insight that collective bystanding is one of the major conditions for atrocities to happen, and if all “ordinary folks” would be held responsible, this condition might dissipate. Also, Esquith (2010, p. 62) notes that bystanders can incur a shared or collective responsibility when the group’s behavior is crucial in causing the crime, and there is an absence of accountable individual wrongdoings. 44  According to Fletcher (2005, p. 1027), “[b]‌ ystanders can become guardians against a return to violence or they can throw their support behind efforts to destabilize peace.” Fletcher (2005, p. 1027) therefore concludes that transitional justice efforts should “promote bystanders as active participants in reforming social, economic, and political networks that support human rights and the rule of law.”

324   Roland Moerland

10.  Concluding Remarks Although the available scholarly work has contributed greatly to our understanding of individuals as bystanders to atrocity crimes, it is important to acknowledge that our comprehension has remained limited in certain ways. First, the review makes clear that the bulk of the bystander research focuses on genocide and more particularly on the Holocaust. The field of bystander research would greatly benefit from research that would investigate bystander behavior in other categories of atrocity crimes, in other historical and in more contemporary cases. Second, much research on individual bystanders focuses on the particular context of atrocities and how it affects bystanders. This macro-​or meso-​level focus is understandable, but it also means that micro-​level analyses focusing on individuals and, for instance, their personality and positionality remain relatively understudied. The review also reveals that a coherent and integrated conceptual analytical framework is lacking. Information on individual bystanders remains scattered across disciplines and levels of analysis. Given this lacuna, the field of atrocity bystander study would benefit from the development of integrative approaches. In addition, the impact of modern media requires further study. As noted, currently bystanders are often tuning in rather than turning away. Instead of attempting to understand what happens to human beings who deliberately turn away from suffering, we now must also come to terms with what happens to human beings when they deliberately choose to observe suffering. Lastly, research focuses mainly on individual bystanders during atrocities. Their role is, however, also crucial before and after atrocities are perpetrated. The role that individual bystanders play in transitional justice requires further investigation, as it currently remains one of the most neglected areas in the field of bystander research.

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CHAPTER 14

On the Marg i ns Role-​Shifting in Atrocity Crimes Erin Jessee 1.  Introduction Popular and scholarly representations of genocide and related mass atrocities, including crimes against humanity and war crimes,1 have long relied upon a fairly strict delineation between those who endure the violence as innocent victims and survivors, bystanders who witness but do not directly participate in the violence, and those guilty perpetrators who inflict the violence (see, for example, Hilberg, 1993). In the last five years, however, genocide scholars and related experts have begun arguing against approaching survivors, bystanders, and perpetrators as inherently distinct from each other, though the separation between these categories persists in many fields of study and in popular culture. This chapter argues that by perpetuating distinct differences among survivors, bystanders, perpetrators, and other actors we inadvertently risk promoting an overly simplistic view of how genocides and other atrocity crimes emerge within a society, how they transform people’s lives, and the long-​term legacies they have for entire societies in the post-​atrocity period. This overly simplistic framing has the potential to undermine the stated benefits of initiatives aimed at promoting social repair and can direct a long-​lasting harm to the individuals and communities that transitional justice practitioners and related experts are trying to help “recover.” For this reason, this chapter explores a theoretical framework—​grounded in decades of research emerging from the fields of Holocaust studies, genocide studies, and conflict studies—​ for approaching people whose lives have been intimately affected by genocide and related mass atrocities as “complex political actors”, at least as a starting point for research design and analysis (see also, Jessee, 2017, pp. 119–​121; Jessee, 2019, pp. 153–​174). To be clear, this approach

1 

Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). Art 5-​8bis provides current definitions of these overlapping legal prohibitions as defined in international law, which together are often referred to as mass atrocities or atrocity crimes (Scheffer, 2006).

330   Erin Jessee does not advocate regarding all people’s actions in these contexts as morally or legally equivalent. Indeed, it demands a sensitive approach, involving careful contextualization, particularly when working with conflict-​affected peoples’ life histories and other intimate information. Correctly applied, it can offer a starting point for analyzing the full spectrum of people’s actions during mass atrocities to produce a more comprehensive and informed view of the extensive role-​shifting that can occur, and pushes back against the overly simplistic and sometimes harmful narratives that tend to arise in the aftermath of mass atrocities. My decision to, for analytical purposes, approach people in genocide-​and atrocity-​ affected communities as complex political actors is evidence-​based, informed by oral historical and ethnographic fieldwork that I conducted in Rwanda, with the help of Rwandan research assistants, starting in 2007.2 To explain the theoretical foundations for the complex political actor, I begin by providing an overview of relevant literature. I then apply this concept to the life histories that Rwandans shared with me relating to their experiences of the “1994 genocide against the Tutsi,” as it is referenced in official discourse, during which Hutu Power extremists massacred an estimated 800,000 civilians3—​most of whom were members of the nation’s ethnic Tutsi minority—​over approximately three months.4 I then provide some brief theoretical and historical/​political context before focusing on 2  Over eight months in 2007 and 2008, and another six weeks in 2011 and 2012, I worked closely with eight Rwandan research assistants, who provided simultaneous translation of conversations and interviews in Kinyarwanda to English, where necessary, and similarly helped me produce verbatim transcripts in English of recorded interviews and related data. Together, we conducted multiple life history and thematic interviews with approximately 65 Rwandans from different backgrounds to the genocide and engaged in casual ethnographic conversations with countless others. We initially recruited people who worked at state-​funded genocide memorials located across Rwanda, whom I had hoped could put me in touch with other potential interviewees within their communities. However, as this fieldwork progressed, we also recruited people associated with community-​based organizations and whom we encountered randomly. We also recruited people who had been convicted for genocide-​related crimes and were serving sentences within five prisons in Rwanda, in accordance with the recommendation from prison-​based gacaca advisors. The resulting interviews took place across the country and among Rwandans from a wide range of socio-​economic, political, and ethnic backgrounds. The research assistants and participants associated with my genocide-​related fieldwork in Rwanda have chosen to remain anonymous in subsequent publications and related outputs associated with this research and so for this reason I use pseudonyms throughout this chapter when referring to them (for more on the underlying methodological framework, see Jessee, 2017, pp. 15–​19). 3  The number of deceased victims of the genocide is controversial, with conservative estimates—​ including the one cited by historian Alison Des Forges (1999, pp. 15–​16), which is adhered to in this instance—​concluding that between 500,000 and 800,000 Rwandans, including Hutu and Twa civilians, died. Conversely, the Rwandan government and its supporters maintain that over one million Rwandan Tutsi were murdered during this period (see, for example, National Commission for the Fight against Genocide 2013). Most recently, a Journal of Genocide Research forum concluded that the lower estimate provided by Des Forges is likely more accurate than the higher estimate provided by the Rwandan government and its supporters (Meierhenrich, 2020, p. 81). 4 Since 2007, the Rwandan government has engaged in a campaign to promote international recognition of the “1994 genocide against the Tutsi.” This campaign has met with significant success: most notably, the Canadian and Belgian governments have criminalized denial of the 1994 genocide against the Tutsi as a form of genocide denial. It has also raised significant criticisms, however: most notably, for silencing Rwandans’ experiences of the broader conflicts and human rights violations that surrounded the genocide in the 1990s, including those that were allegedly perpetrated by the current government against Hutu, Tutsi, and Twa civilians, and spread into the surrounding Great Lakes region

On the Margins    331 some of the specific narratives that I documented from Rwandans whom I had initially viewed according to three clearly delineated genocide archetypes that dominated Rwanda’s political sphere in 2007, when I first began conducting fieldwork: “the innocent victim/​survivor,” “the heroic ex-​combatant,” and “the guilty perpetrator,” also known as génocidaires.5 These categories were prevalent in the official history of the 1994 genocide against the Tutsi that was circulating within Rwanda through state-​funded genocide memorials, museums, and commemorative events at this time. In the interviews and ethnographic research that I conducted, however, I quickly learned that these archetypes rarely did justice to the complexity of people’s lived experiences surrounding the genocide. Furthermore, each of these archetypes frequently carried powerful moral connotations that, for those who lived with the labels, resulted in both real and perceived social stigmas that could negatively impact their mental health and other facets of their well-​being, even decades after the genocide had ended.

2.  Role-​Shifting and the Complex Political Actor This chapter is informed by decades of scholarship that has been building on the margins of genocide studies, which have consistently revealed the complexity of people’s actions and experiences surrounding mass atrocities. Most notably, as early as 1963, political theorist Hannah Arendt first grappled with making sense of Nazi bureaucrat Adolf Eichmann in her foundational text, Eichmann in Jerusalem (Arendt, 1963). During his trial in Israel, the prosecution and the media presented Eichmann as the caricature of pure evil, yet he presented himself to Arendt as a banal bureaucrat whose conscience was assuaged by the knowledge that his efforts to enable the mass murder of Jewish civilians during the Holocaust in Nazi-​ occupied Europe were entirely in accordance with German law (Arendt, 1963, p. 293). Then, in 1986, writer and Holocaust survivor Primo Levi drew scholars’ attention to the “grey zone” that exists surrounding people who find themselves struggling to survive amid genocide. His influential text, The Drowned and the Saved, amplified a range of experiences that Holocaust survivors often struggled to speak about, from the Jewish civilians who directly collaborated with the Nazi officials and policies that were resulting in the near-​ annihilation of Jewish communities across Nazi-​occupied Europe, to the gradual “moral collapse” that ordinary people experienced in the concentration camps as they fought each other for food and privileges that could ensure their individual survival (Levi, 1986, p. 29). In 1992, historian Christopher Browning published a pivotal text, Ordinary Men, that examined the actions of the relatively inexperienced middle-​aged, family men from working-​ and lower-​middle-​class backgrounds who served in German Reserve Police Battalion 101 of Africa (Straus, 2019, pp. 1–​22). In my own research since 2007, I have found many Rwandans reluctant to use this label outside of official discourse due to its silencing potential (Jessee, 2017, pp. 51–​52). 5  The term “génocidaire” is distinctly Rwandan and is used to label Rwandans who have some degree of criminal responsibility for atrocities that occurred during the genocide. It is often used in Rwandan popular culture as synonymous with people of Hutu heritage (Burnet, 2012, p. 31; Jessee, 2017, p. 3).

332   Erin Jessee and whose mandate was to locate and exterminate Jewish civilians across Nazi-​occupied Poland (Browning, 1992). Browning estimated that 80 to 90 percent of these men ultimately participated in executions of Jewish civilians, despite what appeared to be fairly minimal negative consequences for refusing. Their motives for committing these atrocities varied dramatically, however, including “war-​time brutalization, racism, segmentation and routinization of the task, special selection of the perpetrators, careerism, obedience to orders, deference to authority, ideological indoctrination, and conformity” (Browning, 1992, p. 159). While these studies were lauded by Holocaust and genocide scholars for their important insights into the field and for other case studies of mass atrocities, only in the last five to ten years have greater numbers of scholars begun to acknowledge the inadequacy of categories such as survivor, bystander, and perpetrator for encapsulating the complexity of people’s experiences during genocide and related mass atrocities. Of particular note, in 2007, political scientist Erica Bouris developed a framework for what she termed the “complex political victim”—​a person who “knowingly and purposefully supports certain discourses that contribute to the space of her political victimization” because the resulting discourse allows them to advance personal interests and advocate on behalf of their communities, among other positive outcomes (Bouris, 2007, p. 84). By embracing and co-​opting this discourse, Bouris observed that complex political victims could then push back against a frequently imposed “constellation of characteristics: innocence, purity, moral superiority, and lack of responsibility,” and create space to discuss the complexities of their experiences (Bouris, 2007, p. 48). In 2009, political scientist Erin Baines applied Bouris’ framework to the case of Dominic Ongwen, an Acholi man who had been abducted as a child and forced to become a child soldier in the Lord’s Resistance Army (LRA) in northern Uganda. Ongwen is currently standing trial before the International Criminal Court (ICC) for war crimes and crimes against humanity that he allegedly committed as commander of the movement’s Sinai Brigade.6 Baines argues that Ongwen is a “complex political perpetrator”—​a term she introduces to encapsulate “a generation of victims in settings of chronic crisis who not only adapt to violence to survive, but thrive” (Baines, 2009, p. 180). Baines further maintains that in holding Ongwen legally accountable, the International Circket Court (ICC) should weigh the many atrocities he perpetrated as an LRA commander alongside the extraordinary violence to which child abductees were subjected by the movement’s leaders, and the movement’s consistent use of spiritual and political ideology and rituals to indoctrinate child abductees into the divinely sanctioned nature of their struggle against the Ugandan government. She notes that there is ample evidence to suggest that the survival of Ongwen and other abductees was often determined by “choiceless decisions” associated with an increasingly complex and violent conflict (Aretxaga, 1997, p. 61). And, while Baines recognizes that such complex political perpetrators still have some agency and responsibility for their criminal actions, and should be held accountable, she calls for a “specific strategy,” legal or otherwise, for grappling with the challenges posed by people like Ongwen (Baines, 2009, p. 186). Ongwen was subsequently sentenced by the ICC for war crimes and crimes against humanity that he committed as commander of the movement’s Sinai Brigade. Along these lines, as a starting point for addressing the complexity of people’s actions surrounding genocide and related mass atrocities, I have built upon Bouris’ and Baines’ works to advocate for approaching any person whose life has been intimately affected by 6 International Criminal Court, “Ongwen Case: The Prosecutor v. Dominic Ongwen: ICC-02/0401/15.” Available at: https://www.icc-cpi.int/uganda/ongwen (Accessed: October 25, 2021).

On the Margins    333 genocide and related mass atrocities as a “complex political actor.” This approach emerged from the oral historical and ethnographic fieldwork I have conducted with Rwandans who, in varying ways and to varying degrees, were parties to the 1994 genocide: one of the few periods of mass violence in the 20th century that has clearly and undeniably met the legal criteria for genocide as defined by the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (UNGC).7 While not without its limitations, by approaching genocide-​affected people as complex political actors I created analytical space to address the common, and often consistent, role-​shifting that the people I interviewed engaged in surrounding the genocide, which previously made it difficult for me to categorize them according to the genocide archetypes of “innocent survivor,” “heroic combatant,” or “guilty perpetrator” that are prevalent in the official history that currently dominates Rwanda (Jessee, 2017, pp. 45–​80). I encountered few—​if any—​Rwandans who regarded themselves or others in their communities as neatly fitting within these categories. The approach is reinforced by simultaneous advances in the fields of genocide studies and perpetrators studies. Most notably, in 2013 Lee Ann Fujii—​a political scientist who conducted the first qualitative study of the 1994 genocide in Rwanda that engaged civilians from different backgrounds to the conflict (Fujii, 2009)—​convincingly argued that genocide scholars should rethink the standard categories they use for analysis. Fujii further advocated for a new approach that focused on people’s actions so that they could better confront the “grey zones of activity during genocide, where people often elide, straddle, and violate standard categories of analysis” (Fujii, 2013, p. 146). In the process, she identified leaders, collaborators, joiners, survivors, rescuers, evaders, witnesses, and resisters as valuable categories of actors whose actions surrounding genocide could prove particularly fruitful for analysis. Her research likewise made substantial contributions toward enhancing scholarly understandings of “joiners,” whom she defined as “low-​level participants” who joined in the genocide largely due to “social ties that became salient in specific contexts,” and which “sometimes took precedence over ethnic considerations” (Fujii, 2008, p. 571), as well as rescuers and “killer-​rescuers” (Fujii, 2013, p. 145). Interestingly, Fujii’s work has allowed scholars associated with the emergent field of perpetrator studies to develop a consensus around the need to better comprehend people’s varying motivations and actions surrounding genocide by decoupling social practices from social categories—​what sociologist Aliza Luft, based on her analysis of transcripts from interviews with perpetrators conducted by political scientists Scott Straus and Fujii, and journalist Jean Hatzfeld, termed “behavioral boundary crossing” (Luft, 2015, p. 153; see also Hatzfeld, 2005; Lyons and Straus, 2006; Campbell, 2009; Fujii, 2009; Campbell, 2010). Political scientist Timothy Williams notes that this shift in the literature to consider people’s diverse motivations and actions surrounding genocide is far more helpful for making sense of the many “actors in genocide who do not fit the box” (Williams, 2018, p. 19). Drawing upon his fieldwork with former Khmer Rouge cadres in Cambodia, Williams developed a useful typology of action in genocide that is framed around an individual’s proximity to violence and the individual actions they take, which recognizes outcomes from subversive leadership aimed at preventing violence to witnessing atrocities perpetrated by others to commanding genocide (Williams, 2018, p. 29). Its value lies in his recognition 7  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention), Art II; See also Rome Statute, Art 6.

334   Erin Jessee that individuals can engage in multiple forms of action simultaneously, thereby allowing atrocity scholars and related practitioners to break free from the constraints of the overly simplistic archetypes and better comprehend the individual and social dynamics of atrocity crimes. Luft (2015, p. 166) notes that the current privileging of a more dynamic theory of action within perpetrator studies has important political and policy ramifications for scholars and practitioners who are searching for better ways to prevent genocide and related mass atrocities. To this, I would add that applying similarly dynamic theories of action to other kinds of actors amid genocide and atrocity crimes, as proposed in this chapter, could have important ramifications for both atrocity prevention and post-​atrocity social repair.

3.  Approaching the “1994 genocide against the Tutsi” Admittedly, I was unaware of the need for a more dynamic theoretical framework when I first began conducting fieldwork in Rwanda. My preliminary understanding of the Rwandan genocide and approach to recruiting potential interviewees very much aligned with the evolving official history in Rwanda related to the “1994 genocide against the Tutsi.” Broadly speaking, this official history maintains that on April 6, 1994, the assassination of President Juvénal Habyarimana—​the Hutu leader of the ruling party, the National Republican Movement for Democracy and Development (MRNDD)—​left a power vacuum that was soon filled by an interim government dominated by Hutu Power extremists.8 Habyarimana’s assassination occurred at the height of international negotiations to end a three-​year civil war between Habyarimana’s forces and the predominantly Tutsi Rwandan Patriotic Front (RPF), which had invaded northern Rwanda from Uganda on October 1, 1990 (Guichaoua, 2015). By invading Rwanda, the RPF—​many members of which were descendants of monarchists who had been forced to flee Rwanda following the nation’s independence in 1962—​became a credible threat to Hutu political hegemony (Newbury and Atterbury, 1968, p. 76; Lemarchand, 1970, p. 225). Their invasion prompted the Hutu Power movement to invest in anti-​RPF and anti-​Tutsi propaganda through such outlets as the magazine Kangura (“to wake up”) and the notorious radio station Radio Télévision Libre des Mille Collines (RTLM), to exacerbate ethnic and political divisions among Rwandans, by demonizing the nation’s Tutsi minority—​the RPF’s perceived support base (Straus, 2007; Thompson, 2007). A small percentage of Hutu civilians were drawn to the Hutu Power movement during the civil war, joining youth militias known as the Interahamwe and Impuzamugambi that would serve on the front lines of the genocide (Straus, 2004). In the hours following Habyarimana’s assassination, which RTLM journalists blamed on the RPF, the Presidential Guard began massacring political moderates whom the Hutu Power extremists perceived as a threat. In the days and weeks that followed, the violence became explicitly genocidal, as the Hutu Power extremists convinced the Interahamwe and 8  The MRNDD was, prior to 1991, known as the National Republican Movement for Democracy (MRND).

On the Margins    335 Impuzamugambi to massacre Tutsi civilians across all regions of the country that were not yet under RPF control (Guichaoua, 2015, pp. 214–​240). Realizing that the peacekeepers associated with the UN Assistance Mission to Rwanda were incapable of defending civilians or stopping the genocide, the RPF renewed its declaration of war on the interim government forces. As it forced the interim government’s forces west toward the Democratic Republic of the Congo (DRC), the RPF stopped the genocidal violence and began providing aid and medical treatment to the survivors. The RPF declared its military victory on July 18, 1994, and established a transitional government that was intended to ensure the long-​term political stability of the nation (Des Forges, 1999). By this point, however, official accounts maintain that over one million Rwandan Tutsi had been massacred, and an additional 250,000 to 500,000 Rwandan women (and to a far lesser extent, men) had been raped and subjected to other forms of extreme sexual violence (Degni-​Ségui, 1996).9 This official history—​much like those that have proliferated in other conflict-​affected settings—​is not without its critics, particularly in relation to how the government, at times aggressively, disseminates the official narrative to Rwandans and the international community alike via genocide memorials and annual commemorative events known as Kwibuka (“to remember”), as well as through the media. The primary issue at stake is not so much related to its historical accuracy—​though there are several points that merit deeper historical inquiry and contextualization—​but rather concerns that this official narrative silences Rwandans with divergent experiences, while allowing the current government to legitimize its authoritarianism and ongoing human rights abuses. There were many ways to experience the genocide and its aftermath, influenced not only by ethnicity, but also by an individual’s immediate personal circumstances, political affiliations, regional context, religious background, and other facets of their identity (see, for example, Fujii, 2009; Burnet, 2012; Thomson, 2013; Guichaoua, 2015; Jessee, 2017). However, it takes time to develop trusting relationships with people that allow them to share these divergent experiences, and even then, they primarily share their narratives in private and semi-​private settings where they can speak without attracting negative government attention.

4.  Genocide Archetypes and Their Alternatives Three archetypes are central to Rwanda’s official narrative in recent years: specifically, “the innocent victim/​survivor”; “the heroic combatant”; and “the guilty perpetrator.” While the policy of Ndi Umunyarwanda (“I am Rwandan”) and related initiatives associated with the nation’s program of national unity and reconciliation has rendered speaking of oneself as Hutu, Tutsi, or Twa taboo, this does not apply to commemoration of the genocide (Thomson, 2013; Purdeková, 2015; Sundberg, 2016; Benda, 2019). Each of these archetypes 9 

This official history is disseminated to the public in the nation’s state-​funded genocide memorials (see, for example, Longman and Rutagengwa, 2004; Freedman et al., 2008; Burnet, 2012; Buckley-​Zistel, 2006; Jessee, 2017, pp. 45–​80), and in official and media accounts that circulate within and beyond Rwanda, among other sources.

336   Erin Jessee conveys ethnicity: explicitly, in the case of the innocent Tutsi victim/​survivor, and implicitly, in the case of the predominantly Tutsi combatants associated with the RPF and the predominantly Hutu perpetrators (Jessee, 2017, pp. 16–​17). As a starting point, many Rwandans reserve the term “victim” for those who were murdered, disappeared, or harmed irreparably to the point where they became entirely dependent on others for their survival. Thus, the term is seen as completely distinct from that of “survivor,” which references Tutsi civilians “who either experienced and escaped the genocide, or whose immediate families lived in Rwanda in 1994 while they were temporarily abroad,” excluding the possibility of Hutu or Twa survivors (Ibreck, 2010, p. 341). The term “combatant” or “ex-​combatant” is typically reserved for those individuals who fought with the Rwandan Patriotic Army (RPA)—​the military wing of the RPF, which currently rules Rwanda—​and had since been demobilized or incorporated into the Rwandan Defense Forces.10 While there is substantial evidence that some RPA soldiers committed crimes against humanity and war crimes against Rwandan civilians prior to, during, and after the 1994 genocide (Des Forges, 1999, p. 705; Umutesi, 2004),11 most of these atrocities have been dismissed by the Rwandan government as individual crimes motivated by extreme psychological distress after soldiers witnessed the horrible atrocities that Hutu Power extremists perpetrated against Tutsi civilians during the genocide.12 As such, the heroism of RPA combatants remains celebrated in Rwanda, and they are regarded as completely distinct from the génocidaires who perpetrated the genocide. As my fieldwork progressed, however, it became apparent that each of these labels carried social and political connotations of which not all Rwandans approved, and that by using them uncritically, I was unwittingly perpetuating an official narrative that for many Rwandans was, at best, problematic and, at worst, overtly harmful. As a result, I was forced to consider a more appropriate theoretical framework to better structure my analysis of the resulting narratives, which were typically far more politicized—​frequently constructed, to varying degrees, in opposition to the genocide archetype that they felt poorly or wrongly encapsulated their experiences of the genocide. I now turn to the narratives of three 10 While there were other combatant groups associated with the genocide—​ most notably, the Rwandan Armed Forces, the Interahamwe, and Impuzamugambi—​in the context of genocide memorials and other commemorative events, these groups were either referred to by name or grouped together as Hutu Power extremists, génocidaires, and other terms that clearly distinguished them from soldiers associated with the RPA and highlighted their guilt. 11  See also United Nations High Commission for Refugees (10 October 1994) “Summary of UNHCR Presentation Before Commission of Experts.” Available at: https://r​ ichardwilsonauthor.files.wordpress.com/​ 2010/​09/​gersony_​report.pdf (Accessed: March 15, 2019); and United Nations (August 2010) “Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003.” Available at: https://​www.ohchr.org/​Documents/​Countries/​CD/​DRC_​ MAPPING_​REPORT_​FINAL_​EN.pdf (Accessed: March 15, 2019). 12  One notable exception is the 2009 prosecution of four former RPA soldiers, prosecuted by the Rwandan government with assistance of the International Criminal Tribunal for Rwanda for the murder of thirteen Roman Catholic clergy in Kabgayi in June 1994, one month before the formal end of the genocide in Rwanda (see: Amnesty International (2009) “Amnesty International Report 2009—​ Rwanda.” Available at: https://​www.refworld.org/​docid/​4a1fadc72.html (Accessed: March 15, 2019)). The two captains who were prosecuted pleaded guilty and were sentenced to eight years in prison, while the other two accused were acquitted.

On the Margins    337 Rwandans whose experiences complicated the genocide archetypes assigned to them or which they claimed for themselves, amply demonstrating the relevance of a theoretical framework that allows for role-​shifting—​whereby people move between or engage simultaneously in actions that cross the perceived boundaries between victim/​survivor, bystander, rescuer, combatant, perpetrator, and so on—​surrounding genocidal violence in Rwanda, and beyond.

4.1. The innocent victim/​survivor Innocent’s life history began with the story of how his parents met.13 Both had dedicated themselves to the Roman Catholic Church: his father served as a priest, while his mother served as a nun. They fell in love, however, and so gave up their professions to marry. Innocent’s father subsequently became a professor, and his mother stayed home to raise their children, of which Innocent was the first born, in 1990. Innocent recalled very little from his life before the genocide, but he remembered that Habyarimana’s assassination caught the people in his community by surprise. He was playing outside with friends when a group of people spotted him and warned him that people were being killed, though Innocent did not remember if they explained why. Innocent ran to his grandmother’s house and found her dead—​presumably murdered by the Hutu Power extremists. Innocent then ran home, where he found his father gathering “weapons”—​specifically, household tools that they could use to defend themselves. Together, they ran to a nearby hill where Tutsi were gathering to fight their attackers. Soon after they arrived, however, the Hutu Power extremists surrounded them and began massacring the Tutsi men, women, and children, including Innocent’s father. Innocent could not remember precisely how he managed to escape, but he recalled fleeing with approximately 20 other young children into a forest where they hid. The perpetrators searched for them, but eventually grew tired and returned to their homes. After spending the night in the forest, Innocent joined a small convoy of Tutsi survivors who had decided to flee to the DRC in the hopes of waiting out the violence that had overwhelmed their communities. Shortly after they began walking, however, they were surrounded and attacked anew by the Hutu Power extremists. Once again, Innocent escaped the massacre and hid with two other children in a large drainage pipe. However, some of the attackers saw them climb into the pipe and began attacking them from either end with long spears, killing the children on either side of Innocent and leaving him with a large head wound. Innocent pretended to be dead and waited for his attackers to leave, but eventually thirst and hunger forced him to leave his hiding place. He was immediately spotted by a small group of Hutu Power extremists, however, who attacked him with machetes. Believing Innocent’s wounds were fatal, his attackers then dumped his body in an open mass grave.

13 I use pseudonyms throughout this chapter, in accordance with the wishes of the Rwandans I interviewed, and I largely summarize their life histories to avoid mentioning any personally identifying information they shared.

338   Erin Jessee Innocent’s wounds left him weak, confused, and unable to climb out. He believed he stayed there for two days waiting to die before he heard a man walking nearby, calling out quietly for survivors. Innocent responded, and the man threw him a rope that he used to climb free of the mass grave. The man carried Innocent to the local stadium, where local district officials were encouraging Tutsi to seek refuge. Unfortunately, this promise of refuge was a ruse aimed at disarming the Tutsi and gathering them in a place where they could be more easily surrounded and killed by the local Interahamwe. Innocent was there for less than a day before the Interahamwe attacked the stadium, but once again, he managed to escape the ensuing chaos. With nowhere to go, he joined a small group of “street kids.” Recognizing by this point that the violence was specifically targeting the Tutsi, Innocent told the street kids that he was Hutu whose family the extremists had attacked by accident. As the sole survivor of his immediate family by this point, and someone who was relatively unknown in the immediate community, there was no one who could contradict his story. The street kids believed him and accepted him into their group. Innocent’s narrative at this point clearly fits the archetype of the innocent survivor. His young age, in particular, his lack of understanding regarding the reasons for the genocidal violence, and his inability to defend himself against his attackers, make this particularly evident. Upon joining the street kids, however, Innocent’s experience of the genocide became increasingly complicated and more difficult for him to recall in a manner that granted him a sense of psychic comfort or “composure” (Dawson, 1994, pp. 22–​23), prompting him to adopt more indirect language and leave substantive gaps in his narrative. His association with the street kids meant he was increasingly prompted to make choiceless decisions that ultimately led him to engage in a range of criminal activities to ensure his survival that, upon reflection, he regarded as shameful—​despite the extreme circumstances of the genocide—​and left him questioning his “innocence” in the post-​genocide period. He recognized that the genocide was an unspeakably awful period in Rwandan history and that as a child, he had few options for survival, yet as he spoke of lying about his background, begging for money, and stealing food and clothing from people—​some of whom were Tutsi victims and survivors—​he expressed a distinct sense of shame. This peaked when, toward the end of one interview, he admitted that the street kids he associated with during the period frequently participated in killing Tutsi at roadblocks—​sometimes demonstrating great enthusiasm when they encountered someone they regarded as having been too proud or ungenerous toward them. I did not ask Innocent if he participated in these murders—​it seemed too painful a subject for him to discuss and I felt it important to respect the silence he maintained around it. However, he subsequently admitted that he did everything he could to convince the street kids that he was one of them, which I received as an indirect admission that he had likely witnessed and certainly been a “situated bystander” to the murders, if not a direct participant.14

14 

Genocide scholar Giorgia Donà introduced this term to highlight the multiple positionalities of the majority of Rwandan civilians whose actions did not fit the categories of victim or perpetrator related to the genocide, but whose support, opposition, or indifference was fundamental for shaping the violence in their communities (Donà, 2018, p. 2).

On the Margins    339 During my fieldwork, I encountered several survivors who acknowledged—​typically off the record and with great difficulty—​being forced by Hutu Power extremists to torture, sexually assault, and murder loved ones. Sometimes they were forced to perpetrate this violence prior to being nearly killed themselves, and other times—​particularly where there was a history of interpersonal conflict—​it seemed to have been designed by their attackers to demoralize and dehumanize both victims and survivors alike. Narratives of these atrocities reminded me of the Nazis’ efforts to eliminate Jewish leaders’ and civilians’ “political and moral armature” by making them complicit in the deportation and murder of their own people across Nazi-​occupied Europe during World War II (Levi, 1986, p. 29)—​one of myriad links that scholars have attempted to draw between the Rwandan genocide and the Holocaust.15 Their memories of their actions were often painful for them to recall in much detail, and yet they felt compelled to admit “the truth” about what they had done, often struggling with the moral weight of their choiceless decisions. While I struggle to imagine reasonable people regarding them as being criminally responsible for their crimes, particularly when committed under extreme duress, how survivors interpreted these crimes is significant because it is so clearly part of the “survivor guilt” and related sources of emotional distress they negotiated in the genocide’s aftermath.16 In Innocent’s case, living with the street kids left him suicidal, and he eventually decided to return to the stadium where he knew he would be killed. As he walked, he met a man who knew his parents, and who offered to hide him in his home. Innocent went with him, but the sanctuary came at a price. The man forced Innocent to work for him, and two days later a local Hutu Power extremist recognized Innocent as the sole survivor of his immediate family. The extremist insisted that the man kill Innocent to prove he was loyal to the Hutu Power movement, and so Innocent fled. Once again, Innocent found refuge with a group of street kids, but this particular group was composed primarily of Tutsi survivors of the genocide, and they “worked together” to protect each other. Innocent’s narrative offered the possibility that they used violence to protect themselves, though once again he was not explicit about this. However, as the genocidal violence continued and an increasing number of Hutu Power extremists arrived in their community ahead of the RPF advance, they realized that they would soon be outnumbered. They decided to flee together to the DRC, and this time, Innocent’s journey was successful. He lived in refugee camps for a few years where he claimed Hutu or Tutsi heritage, depending on the context—​a survival strategy that he claimed many Rwandans used to negotiate the difficult living conditions in the camps in the absence of family networks and related pre-​genocide forms of patronage. Once he felt safe formally admitting his Tutsi heritage to the aid workers, he was taken to an orphanage, where he was reunited with three children from his extended family. In 1999, a Rwandan government directive aimed at rehoming genocide orphans with their extended families made it possible for Innocent and 15 

See, for example, the debate between Mark Levene (1999) and René Lemarchand (2002) regarding whether such comparison between the Holocaust and the Rwandan genocide is appropriate or helpful for analysis. 16  The Diagnostic and Statistical Manual of Mental Disorders defines survivor guilt as an associated feature of post-​traumatic stress disorder resulting from “surviving when others have not or guilt about behavior required for survival.” See American Psychiatric Association. (1994 [2013]) Diagnostic and Statistical Manual of Mental Disorders (5th edition). Washington, DC: American Psychiatric Association.

340   Erin Jessee his remaining family to return to Rwanda. However, as all of the adults in Innocent’s family had been murdered, they were rehomed with a widow whose experiences of the genocide rendered her physically and emotionally incapable of caring for four young children. Thus, Innocent, as the oldest child, became the primary caregiver for their family. Like many people struggling with survivor guilt, he demonstrated remarkable resilience and increasingly dedicated his life to helping other survivors and establishing a renewed sense of community that eschewed ethnic identities. Indeed, we met through the survivors’ organization where he worked and was celebrated for his remarkable empathy in working with vulnerable people. However, Innocent found that the label of “survivor” and its connotations of innocence and moral superiority carried a powerful emotional weight, given the choiceless decisions that had made his survival possible. From our conversations, it seemed that the moments in his experiences of the genocide and its aftermath where his survival hinged upon his ability to role-​shift from innocent survivor to bystander, and perhaps even perpetrator, weighed heavily on him. In terms of his post-​genocide mental health, the psychological weight of his cumulative actions during the genocide seemed to exacerbate the negative effects of the extraordinary genocidal violence he had endured at the hands of the Hutu Power extremists.

4.2. The heroic combatant I first met Patrick when he was working in one of the prisons where I was conducting fieldwork, where we often chatted surrounding my meetings and interviews. He always wanted me to talk about my research interests, which led me to assume that the prison director or another official had asked him to befriend me as a way of learning more about my project. Over time, however, Patrick began opening up about his life, starting with his childhood in Burundi, where he was born to Rwandan parents who had fled political violence in Rwanda around the nation’s independence in 1962, and on whose behalf he had become fiercely dedicated to fighting for the right of Tutsi refugees to return to Rwanda. I asked him if he would be willing to contribute to the project, and he agreed, allowing me to explore a comparatively under-​researched perspective on the genocide: namely, the experiences of a respected former RPA combatant. Patrick’s life history began with his childhood in Burundi, where he was raised with his family’s stories of their idyllic life in pre-​independence Rwanda, and the heartbreak of having been forced—​as long-​term supporters of the monarchy—​to leave. While his childhood memories from Burundi were otherwise positive, by the time he was a teenager Patrick admitted that he had been radicalized by these stories and was determined to fight for the Tutsi refugees’ right to return to Rwanda. His family—​like so many Rwandans who lived in exile at that time—​vocally supported the RPF, and his father, in particular, was close with several RPF officials. Thus, as tensions in the region increased in the late 1980s, they were party to reliable information that the RPF was finally ready to abandon its diplomatic efforts to negotiate the Tutsi refugees’ return to Rwanda and was preparing to invade. In response, Patrick decided to join the RPA and traveled to Uganda where, after brief military training, he was sent to the 1990 invasion’s front line in northern Rwanda. The RPF’s stated purpose for the invasion was to enforce Tutsi refugees’ right to return to the country and force Habyarimana to accept a power-​sharing agreement that would bring

On the Margins    341 an end to the regional favoritism, oppression of the Tutsi, and corruption associated with his regime. In the first months of the invasion, Patrick recalled that the RPF invested a great deal of funding in propaganda to convince the predominantly subsistence agriculturalist Hutu in the north that the RPF meant them no harm, and made sure Hutu RPA officers were highly visible in the communities so the RPA did not seem like an entirely Tutsi invading force. He also noted that RPA troops were expected to adhere to strict guidelines to ensure that they treated Hutu civilians and injured or surrendered members of Habyarimana’s forces fairly to maintain good relations. For this reason, Patrick maintained that he never witnessed the RPA atrocities that Hutu Power extremists claimed prompted the mass flight of Hutu refugees from the north, nor did he believe it would have been possible for RPA troops to commit such atrocities during the civil war. With the emergence of the Interahamwe in 1993, however, Patrick recalled an important shift in the civil war. The Interahamwe immediately became a significant threat to the RPA troops and their civilian supporters in the north—​most of whom were Tutsi—​by committing torture, rape, and murder under the guise of being youth-​led civilian defense units. Patrick witnessed firsthand some of these atrocities, which he believed the perpetrators used to spread fear among the civilian population and undermine their support for the RPF. But the worst atrocities occurred after Habyarimana’s assassination, when the Hutu Power extremists in the community where Patrick was based decapitated several Tutsi community leaders and impaled their heads on spikes to signal the start of the genocide. As the genocide in this community escalated, a common form of execution that the extremists reserved for Tutsi men was called kandoyi and involved tying the victim’s elbows behind his back and then hanging him from his elbows so that his toes barely touched the ground. The victim was left hanging until it seemed he was ready to pass out from pain and exhaustion, at which point the Interahamwe would beat him about the head with nail-​studded clubs until he died. Those who were murdered in this manner were left hanging, which Patrick believed was meant to serve as a message to spread fear among the Tutsi and demoralize the RPA soldiers. The Hutu Power extremists also encouraged their supporters to rape Tutsi women and, after finishing, to impale them using sharped sticks or related objects to ensure they died a slow, agonizing death. The bodies of these women were also left exposed in public to humiliate and shame the extremists’ victims and those who survived them. On multiple occasions, Patrick and other RPA soldiers were ordered to give the victims of such atrocities a respectful burial, leaving him with some of his most powerful, nightmare-​ inducing memories of the genocide. Until this point, Patrick’s narrative largely fits the archetype of the heroic combatant. He sacrificed his education to support the RPF’s 1990 invasion of Rwanda, and he fought on the front lines against Habyarimana’s forces while working alongside his fellow soldiers to convince the predominantly Hutu civilians they encountered that the RPF invasion would be good for the nation long-​term. To this end, he was adamant that he never engaged in the human rights abuses of which RPA troops were accused by the Hutu Power extremists during the civil war, adhering to the “amplified silence” that persists in the post-​genocide period around “RPF-​perpetrated violence experienced by Rwandans of all ethnicities” (Burnet, 2012, p. 111). However, as our discussion of the genocide continued, Patrick began to resist this amplified silence by acknowledging that some RPA soldiers perpetrated revenge killings or otherwise killed Hutu Power extremists and their supporters when an opportunity presented itself. Patrick recalled that as the genocide continued, he and his fellow

342   Erin Jessee soldiers were frequently depressed and angry, and quick to lash out at the Interahamwe and interim government forces they encountered, preferring to kill them rather than permitting them to surrender. These atrocities constitute an admission of war crimes as defined by the First and Third 1949 Geneva Conventions, which uphold protections for wounded and sick soldiers, and combatants who surrender.17 However, Patrick maintained silence on the topic of alleged RPA atrocities against Rwandan civilians during and after the genocide, despite the aforementioned evidence to the contrary, though he was, throughout our conversations, dismissive of the idea of himself as a hero. Only Samuel, a former RPA combatant from Cyangugu whom I interviewed in 2008, would discuss this on the record, and then only in reference to his experiences in the DRC. He was understandably cautious about providing much life history background on the record, and he did not consent to being recorded. However, he wanted to talk about the atrocities he and his fellow soldiers had perpetrated between 1996 and 1998 in the DRC, where he claimed his unit had been given a mandate to pursue—​with the purposes of either capturing and returning to Rwanda or killing—​known génocidaires who were hiding among the two million refugees who had fled the genocide. Without going into much detail, he acknowledged that in their pursuit of génocidaires, they often used torture and disproportionate force against their targets and the civilians whom they believed were hiding them. In summarizing this period in his life, he told me, “it is important to understand that people have been cruel, worse than animals in the past.” He extended this statement to both the genocide, of which he was a survivor, and the subsequent atrocities he perpetrated in the DRC, his role in which he claimed he was still struggling to understand, noting “it takes time to understand such events.” The broader amplified silence that exists around RPA atrocities, however, was not always upheld by other Rwandans with whom I have worked over the years. Conversely, I have found that stories of RPA atrocities have emerged fairly consistently in my fieldwork in Rwanda, even when working on projects that were in no way related to the genocide. For example, while working on a project unrelated to the genocide, I interviewed a woman from eastern Rwanda. As part of her life history interview, we had been discussing how she came to be the head of her family and a leader in her community. She attributed this to the death of her husband, which had left her impoverished and forced her to seek work outside the home in order to support their children. When I asked her why she could not have turned to other members of her family for help, she replied that “they” had killed him and the other men in her family. She then clarified that RPA troops had killed most of the men in her community as soon as they took control of the area in 1994, allegedly because they saw the people as Hutu Power extremists and génocidaires. However, she claimed that the real extremists had fled the RPF advance some weeks prior to her husband’s murder, leaving behind only civilian bystanders.

17  Geneva

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention).

On the Margins    343 Such accounts were not uncommon, in my experience, in rural communities around Rwanda, supporting the conclusion that some RPA troops committed atrocities—​likely constituting war crimes and crimes against humanity—​ against civilian populations 18 in Rwanda during and after the 1994 genocide. As a result, I read these narratives as a complicating factor for the archetype of the heroic combatant and the broader official history that surrounded former RPA combatants’ accounts of the “war of liberation,” as the civil war period is referenced in official discourse. Indeed, one of several key points of ethnic and political tension that persists in the post-​genocide period emerges from the recognition among Rwandans that former RPA combatants were rarely punished or prosecuted for their war crimes and crimes against humanity perceived by others. Given the Rwandan government had invested in a decade-​long program of “universal accountability” that used the national courts and gacaca trials to prosecute all Rwandans who were accused of genocide-​ related crimes, from informing on Tutsi and looting the homes of the deceased to mass murder and rape (Gahima, 2013, p. xxxviii), many Rwandans—​and particularly convicted génocidaires, in my experience—​saw themselves as victims of victor’s justice (Jessee, 2017, p. 175).19

4.3. The guilty perpetrator This section leads to a third prevalent genocide archetype: the guilty perpetrator. Among the twenty convicted génocidaires that I interviewed in 2007 and 2008, most were fairly “typical” low-​level perpetrators.20 Among this cohort, Roger was one of the first of many convicted génocidaires who did not align with my preconceived notions of the potentially dangerous people I would be interviewing in the prisons.21 My preconceptions regarding 18 For

the purpose of the International Criminal Tribunal for Rwanda (ICTR), “crimes against humanity were defined as the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts” (Statute of the International Criminal Tribunal for Rwanda (adopted November 8, 1994) UNSC Res 955(1994), as amended, Article 3 (ICTR Statute). 19 The term “gacaca” (meaning “justice on the grass”) refers to a pre-​ colonial dispute resolution mechanism that was reinvented by the Rwandan government to address the estimated 150,000 Rwandans who were imprisoned after the genocide to await trial for their crimes (see Doughty, 2016; Ingelaere, 2016). Over a decade, it became a central feature of Rwanda’s transitional justice program, considering more than 1.9 million genocide-​related cases with varying degrees of success (Rutayisire and Richters, 2014). 20  Generally speaking, the majority of Rwanda’s génocidaires were, at the time of the genocide, young to middle-​aged men from rural communities with moderate levels of education and few prospects for advancement in their communities. Women were far more likely to engage in property crimes and other minor offenses than in killings and torture. Perpetrators rarely had criminal backgrounds or had engaged in violence prior to the genocide, and in terms of their motives for killing their Tutsi compatriots frequently cited factors that went well beyond the commonly cited ethnic hatred of the Tutsi (Mironko, 2004; Straus, 2006; Fujii, 2008, pp. 568–​97; McDoom, 2012; Jessee, 2015; Nyseth Brehm et al., 2016). 21  As I was not permitted to record interviews in the prisons, the following account is based on notes I took of the interviews with Roger, which I then verified with him in subsequent conversations to ensure he was comfortable with the resulting narrative and the conclusions I drew from it. We conducted these

344   Erin Jessee génocidaires were informed not only by the media, NGOs, and scholarly sources that were available to me in 2007, but also by conversations with Rwandan officials who expressed concern and, in the case of one prison director, astonishment that a young woman such as myself was interested in speaking to “these horrible génocidaires” who were “beyond rehabilitation.” Similarly, I was conscious of the possibility that ideologically motivated perpetrators might see my research project as an opportunity to imbue their personal political agendas with academic authority, justifying the massacre of Hutu political moderates or Tutsi or Twa civilians as a necessity due to their perceived inherent inferiority or contaminating presence, for example (Jessee, 2011). Yet upon meeting Roger in the prison where he was awaiting the results of his latest gacaca trial, he did not strike me as the kind of monster I had mentally prepared myself to meet. Conversely, he was soft-​spoken, respectful, and appeared remorseful and confused about how he had come to be a génocidaire. He began his life history by talking about his peaceful childhood in southern Rwanda prior to the genocide. Roger was born to a relatively wealthy family in 1974, soon after Habyarimana had taken power in a “bloodless coup.” His father was well-​educated and politically active and had long fought for equality and human rights in Rwanda. He was well-​respected in the community for having condemned the anti-​ monarchist violence that had overwhelmed the nation in the years surrounding independence, and hid friends and co-​workers who were targeted, saving their lives. For this reason, Roger claimed he could not recall any ethnic tensions during his childhood, nor was ethnicity a topic of conversation within his family. The only source of political tension that he could remember was regional, between northern and southern Rwanda: in his community, he noted that people were fairly united against the north, regardless of their ethnic heritage. Soon after the civil war began, however, the political climate in Roger’s community changed. Unlike most Rwandans his age, who learned about their ethnicity in school, Roger claimed that he first recalled learning about his ethnic identity in early 1991, when he was evicted from a Tutsi-​owned bar that he had visited with friends. He did not approve of ethnic divisionism, however, and so soon after he—​along with his father—​joined the Social Democratic Party (PSD) to fight the Hutu Power extremism that was gaining traction within the Habyarimana regime and in their community. As the civil war continued, Roger and his father were occasionally forced into hiding to escape political violence directed at members of the PSD, against whom the Hutu Power extremists increasingly incited violence for being ibyitso (“spies,” “accomplices of the enemy”). Indeed, after Habyarimana’s assassination, members of the PSD were some of the first victims of the atrocities, and Roger and his family hid until around April 20, 1994, when the violence in his community shifted away from political moderates to focus exclusively on the Tutsi. Roger and his family did not flee at this time, as they felt they could survive only if they stayed in the community where they were well known and had good relationships with people. interviews in private offices just inside the prison gate where the prison administrators worked, but we were removed from the main buildings where the prisoners lived. Due to this interview setting, we often encountered challenges in prompting people to speak openly about their experiences, as it was assumed that we were going to be biased in favor of the Rwandan government’s official history. It took time—​ again, a benefit of being able to conduct multiple interviews with each person—​to convince convicted génocidaires that I was interested in engaging with different perspectives on Rwanda’s history and the genocide, and would not divulge to officials the things they said (Jessee, 2017, pp. 149–​151).

On the Margins    345 When the genocide began, Roger—​despite significant risk to himself and his family—​ worked with his father to hide Tutsi family, friends, and co-​workers in various places around the community, including his own home. At that point, the Interahamwe had insisted that each family send at least one man to help with night patrols and maintain the roadblocks, but Roger’s family was able to avoid this by giving the Interahamwe money instead. His father also paid the Interahamwe to leave their home and properties alone, and for a few days, this strategy was successful. On the morning of April 28, however, soldiers arrived at Roger’s home, after his friends had told them he was hiding Tutsi. Roger felt he had no choice but to help them escort the two people he had been hiding to a nearby roadblock. He knew that they would kill him and his family if he refused, as several Hutu from his community had already been murdered for this reason. The soldiers forced Roger to carry a machete and lead one of the people himself, and when they arrived at the roadblock, they forced him to participate in executing the two people he had tried to rescue. From that day forward, the Interahamwe insisted that Roger come to the roadblocks every day to help “protect the community,” and that he attend political meetings where interim government officials told them that the Tutsi were the enemies of the country and gave them further instructions on how to fight them. Roger claimed he did not believe this propaganda, nor did he ever want to fight the Tutsi. However, he still presented himself at the roadblocks each day, where he waited for Tutsi to attempt to pass or for the local authorities to call them to hunt Tutsi who were believed to be hiding in the area. Roger ultimately lost track of how many Tutsi he killed in the weeks before the RPF took control of his community, but he claimed he always tried to be merciful and give them a “good death”—​by which he meant quick and without mutilating their remains—​so their spirits would have a better chance of resting peacefully in the afterlife. This was notably different, he claimed, from how the Hutu Power extremists approached these executions, particularly when dealing with Tutsi who attempted to resist their attackers or who had a bad reputation in the community. Similarly, Roger insisted that he never raped Tutsi women, and when, in May 1994, the authorities told them that women had no ethnicity and they could begin taking Tutsi women as wives, he refused to accept this “reward.” When the RPF wrested control of his community a few weeks later, Roger claimed he was happy and tried to settle back into regular life, though he was haunted by the crimes he had committed. Immediately after the genocide ended, however, Roger’s neighbors identified him to the RPF as having played a key role at the roadblocks. Roger was imprisoned immediately, which he accepted, as he recognized that he had “caused harm to the country.” And, when it was his turn to attend gacaca, he claimed that he confessed his crimes freely and apologized to those he harmed, wanting to support national unity and reconciliation. When we met, he was awaiting sentencing and was hopeful that his complicated position relative to the genocide—​first as a rescuer and resister of the violence, and only later under duress becoming a perpetrator—​would be taken into account. He admitted worrying about his trial’s outcome, however, as none of the people he tried to rescue had survived the genocide, and most of his friends, neighbors, and family had distanced themselves from him after his arrest. He feared that as a result he would be regarded solely as a perpetrator, and that none of his alleged efforts to rescue people or to resist the genocide in his community would be considered in determining an appropriate sentence. This complex narrative of genocide perpetration, and the role-​shifting it entailed, was not uncommon among the convicted génocidaires I interviewed. Indeed, I encountered

346   Erin Jessee few whom I could comfortably categorize as the monsters I had expected—​who celebrated or were remorseless of the atrocities they had perpetrated—​based on the narratives that were then prevalent in popular culture within and beyond Rwanda.22 Far more common were the narratives of people whose lives had been upended by the civil war—​sometimes accompanied by personal loss, such as the murder of loved ones—​and who had subsequently been drawn to the Hutu Power extremists’ agenda, or for other reasons came to regard the mass rape and murder of Tutsi as normalized such that they too began to participate in the violence. Similarly common were perpetrators’ accounts of rescues—​both successful and failed—​through which they attempted to save those Tutsi they knew personally and recognized posed no threat to them, even as they massacred other Tutsi who were strangers or with whom they had a history of interpersonal conflict. And, while this does not diminish the brutality or severity of the crimes they perpetrated, it points to the need for a more nuanced framework for making sense of their shifting actions surrounding the genocide.

5.  Conclusion: Role-​shifting among Complex Political Actors While there are occasional clear cases of innocent survivors, heroic combatants, and guilty perpetrators surrounding the genocide in Rwanda, many Rwandans understand their actions and those of their compatriots in much more complicated terms, making such labels inaccurate and at times painful for people to negotiate given the political and social capital associated with them. Unfortunately, there appears to be little space in Rwanda at present for public discussion of role-​shifting during the genocide that would consider these complexities in a meaningful way. Certainly, the Rwandan government argues that Rwanda’s recent genocidal past makes its future political stability uncertain, requiring authoritarian leadership, limited democratic reforms, and reduced, limited civil liberties until Rwandans come to view each other according to their shared national heritage, rather than ethnicity. This position is, to an extent, understandable given the unenviable task that the government is tackling in working to reconcile a nation whose citizens have been divided, not only by ethnicity, but also by political, regional, socio-​economic, and other tensions. However, there is also an arrogance to this position, one that treats the Rwandan people as incapable of reason and empathy across ethnic divides and requiring a strong hand in order to avoid future bloodshed. Among the Rwandans I have interviewed over the years, most lived in densely populated and tightly knit communities. For this reason, they demonstrated a striking degree of awareness of their neighbors’ actions surrounding the genocide, as well as throughout other periods of Rwanda’s past, even if the subjects could not be discussed openly. One sentiment that has been expressed by all the Rwandans with whom I have worked, regardless of ethnicity or political affiliation, is the desire to avoid future bloodshed. Given this common 22  I have published elsewhere about the few occasions where the génocidaires I interviewed seemed remorseless (see, for example, Jessee, 2011; and Jessee, 2015).

On the Margins    347 goal, and the widespread awareness of the different ways that Rwandans from different regions, clan lineages, and ethnic groups, for example, had been disadvantaged at different points in Rwanda’s past, there may be fertile ground for public discussion of Rwandans as complex political actors surrounding the genocide. However, given the work of facilitating post-​genocide reconciliation and social repair “among ‘intimate enemies’ . . . is contentious, suffused with hostility and instrumentality,” asking Rwandans to engage in this manner would not be easy or painless, particularly for survivors of the genocide and related mass atrocities (Doughty, 2015, p. 432). The broader literature on genocides and atrocity crimes suggests that an enhanced focus on role-​shifting among complex political actors might have merit for contexts beyond Rwanda, as well. There is already substantial support for similar theoretical frameworks within the emergent field of perpetrator studies, a key point of concern within which is the often-​politicized nature of the “perpetrator” label in different settings, as well as how to adequately encapsulate individual’s complex motivations and pathways to committing genocidal violence (Williams and Buckley-​Zistel, 2018, pp. 1–​15; Anderson, 2019; Smeulers et al., 2019, pp. 1–​10). Indeed, at present this seems to be a matter of pressing concern within the field, as scholars and related practitioners struggle to address the growing prevalence of genocide and related mass atrocities in the 21st century and mitigate the negative legacies of the resulting humanitarian crises. Given that the majority of people who serve on the front lines of genocidal violence typically have no prior criminal background and may not even be particularly ideologically motivated when engaging in genocide-​related violence, it is crucially important for people to realize how “easily” someone can be drawn into committing genocide. Beyond perpetrator studies, however, there is also value in exposing people to the complexities of how genocides and atrocity crimes take shape and their long-​term legacies for other kinds of actors caught up in atrocities so they do not perpetuate overly simplistic stereotypes that those who have survived genocide find harmful.

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348   Erin Jessee Burnet, J. (2012) Genocide Lives in Us: Women, Memory, and Silence in Rwanda. Madison: University of Wisconsin Press. Campbell, B. (2010) “Contradictory Behavior during Genocides.” Sociological Forum 25(2), pp. 296–​314. Campbell, B. (2009) “Genocide as Social Control.” Sociological Theory 75(2), pp. 150–​172. Dawson, G. (1994) Soldier Heroes: British Adventures, Empire, and the Imagining of Masculinities. London: Routledge. Degni-​Ségui, R. (29 January 1996) “Report on the Situation of Human Rights in Rwanda, Submitted by Mr. René Degni-​Ségui, Special Rapporteur of the Commission on Human Rights, under Paragraph 20 of Resolution S-​3/​1 of 25 May 1994.” Available at: http://​ hrlibrary.umn.edu/​commission/​country52/​68-​rwa.htm (Accessed: March 15, 2019). Des Forges, A. (1999) Leave None to Tell the Story: Genocide in Rwanda. New York: Human Rights Watch. Donà, G. (2018) “‘Situated Bystandership’ during and after the Rwandan Genocide.” Journal of Genocide Research 20(1), pp. 1–​19. Doughty, K. (2015) “Law and the Architecture of Social Repair: Gacaca Days in Post-​Genocide Rwanda.” Journal of the Royal Anthropological Institute 21(2), pp. 419–​437. Doughty, K. (2016) Remediation in Rwanda: Grassroots Legal Forums. Philadelphia: University of Pennsylvania Press. Freedman, S., Weinstein, H., Murphy, K., and Longman, T. (2008) “Teaching History after Identity-​Based Conflicts: The Rwanda Experience.” Comparative Education Review 52(4), pp. 663–​690. Fujii, L.A. (2008) “The Power of Local Ties: Popular Participation in the Rwandan Genocide.” Security Studies 17(3), pp. 568–​597. Fujii, L.A. (2009) Killing Neighbors: Webs of Violence in Rwanda. Ithaca, NY: Cornell University Press. Fujii, L.A. (2013) “Rescuers and Killer-​Rescuers during the Rwanda Genocide.” In: Semelin, J., Andrieu, C., and Gensburger, S. (eds.) Resisting Genocide: The Multiple Forms of Rescue. Oxford: Oxford University Press, pp. 145–​158. Gahima, G. (2013) Transitional Justice in Rwanda: Accountability for Atrocity. Abingdon: Routledge. Guichaoua, A. (2015) From War to Genocide: Criminal Politics in Rwanda, 1990–​1994. Madison: University of Wisconsin Press. Hatzfeld, J. (2005) Machete Season: The Killers in Rwanda Speak. New York: Farrar, Straus, and Giroux. Hilberg, R. (1993) Perpetrators, Victims, Bystanders: The Jewish Catastrophe, 1933–​1945. New York: Harper Perennial. Ibreck, R. (2010) “The Politics of Mourning: Survivor Contributions to Memorials in Post-​ Genocide Rwanda.” Memory Studies 3(4), pp. 330–​343. Ingelaere, B. (2016) Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide. Madison: University of Wisconsin Press. Jessee, E. (2011) “The Limits of Oral History: Ethics and Methodology amid Highly Politicized Research Settings.” Oral History Review 38(2), pp. 287–​307. Jessee, E. (2015) “Rwandan Women No More: Female Génocidaires in the Aftermath of the 1994 Rwandan Genocide.” Conflict and Society 1, pp. 60–​80. Jessee, E. (2017) Negotiating Genocide in Rwanda: The Politics of History. Cham: Palgrave Macmillan.

On the Margins    349 Jessee, E. (2019) “Beyond Perpetrators: Complex Political Actors Surrounding the 1994 Genocide in Rwanda.” In: Smeulers, A., Weerdesteijn, M., and Holá, B. (eds.) Perpetrators of International Crimes—​Theories, Methods and Evidence. Oxford: Oxford University Press, pp. 153–​174. Lemarchand, R. (1970) Rwanda and Burundi. New York: Praeger. Lemarchand, R. (2002) “Disconnecting the Threads: Rwanda and the Holocaust Revisited.” Journal of Genocide Research 4(4), pp. 499–​518. Levene, M. (1999) “Connecting Threads: Rwanda, the Holocaust, and the Pattern of Contemporary Genocide.” In: Smith, R. (ed.) Genocide: Essays toward Understanding, Early Warning and Prevention. Williamsburg, VA: College of William & Mary Press, pp. 27–​64. Levi, P. (1986) The Drowned and the Saved. New York: Simon & Schuster. Longman, T., and Rutagengwa, T. (2004) “Memory, Identity and Community in Rwanda.” In: Stover, E., and Weinstein, H. (eds.) My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge: Cambridge University Press. Luft, A. (2015) “Toward a Dynamic Theory of Action at the Micro Level of Genocide: Killing, Desistance, and Saving in 1994 Rwanda.” Sociological Theory 33(2), pp. 148–​172. Lyons, R., and Straus, S. (2006) Intimate Enemy: Images and Voices of the Rwandan Genocide. Brooklyn, NY: Zone Books. McDoom, O. (2012) “The Psychology of Threat in Intergroup Conflict: Emotions, Rationality, and Opportunity in the Rwandan Genocide.” International Security 37(2), pp. 119–​155. Meierhenrich, J. (2020) “How Many Victims Were There in the Rwandan Genocide? A Statistical Debate.” Journal of Genocide Research 22(1), pp. 72–​82. Mironko, C. (2004) “Igitero: Means and Motive in the Rwandan Genocide.” Journal of Genocide Research 6(1), pp. 47–​60. Newbury, C., and Atterbury, M.C. (1968) Revolution in Rwanda. Madison: University of Wisconsin Press. Nyseth Brehm, H., Uggen, C., and Gasanabo, J.D. (2016) “Age, Gender, and the Crime of Crimes: Toward a Life-​course Theory of Genocide Participation.” Criminology 54(4), pp. 713–​743. Purdeková, A. (2015) Making Ubumwe: Power, State and Camps in Rwanda’s Unity-​Building Project. New York: Berghahn Books. Rutayisire, T., and Richters, A. (2014) “Everyday Suffering outside Prison Walls: A Legacy of Community Justice in Post-​Genocide Rwanda.” Social Science and Medicine 120, pp. 413–​420. Scheffer, D. (2006) “Genocide and Atrocity Crimes.” Genocide Studies and Prevention 1(3), pp. 229–​250. Smeulers, A., Holá, B., and Weerdesteijn, M. (2019) “Introduction.” In: Smeulers, A., Weerdesteijn, M., and Holá, B. (eds.) Perpetrators of International Crimes –​Theories Methods and Evidence. Oxford: Oxford University Press, pp. 1–​10. Straus, S. (2004) “How Many Perpetrators Were There in the Rwandan Genocide? An Estimate.” Journal of Genocide Research 6(1), pp. 85–​98. Straus, S. (2006) The Order of Genocide: Race, Power, and War in Rwanda. Ithaca, NY: Cornell University Press. Straus, S. (2007) “What Is the Relationship between Hate Radio and Violence? Rethinking Rwanda’s ‘Radio Machete.’” Politics and Society 35(4), pp. 609–​637. Straus, S. (2019) “The Limits of a Genocide Lens: Violence against Rwandans in the 1990s.” Journal of Genocide Research 21(4), pp. 504–​524.

350   Erin Jessee Sundberg, M. (2016) Training for Model Citizenship: An Ethnography of Civic Education and State-​Making in Rwanda. New York: Palgrave Macmillan. Thompson, A. (ed.) (2007) The Media and the Rwanda Genocide. London: Pluto Press. Thomson, S. (2013) Whispering Truth to Power: Everyday Resistance to Reconciliation in Postgenocide Rwanda. Madison: University of Wisconsin Press. Umutesi, M.B. (2004) Surviving the Slaughter: The Ordeal of a Rwandan Refugee in Zaire. Madison: University of Wisconsin Press. Williams, T. (2018) “Thinking Beyond Perpetrators, Bystanders, Heroes: A Typology of Action in Genocide.” In: Williams, T., and Buckley-​Zistel, S. (eds.) Perpetrators and Perpetration of Mass Violence: Actions, Motivations and Dynamics. London: Routledge, pp. 17–​35. Williams, T., and Buckley-​Zistel, S. (2018) “Perpetrators and Perpetration of Mass Violence: An Introduction.” In: Williams, T., and Buckley-​Zistel, S. (eds.) Perpetrators and Perpetration of Mass Violence: Actions, Motivations and Dynamics. London: Routledge, pp. 1–​14.

CHAPTER 15

Child Sol di e rs Myriam Denov and Anaïs Cadieux Van Vliet 1.  Introduction Children have been implicated in armed conflict for centuries—​whether as participants, witnesses, or victims—​and definitions and conceptualizations of what and who constitutes a “child soldier” have shifted over time. The evolution of definitions and protections provided in legal instruments spans six decades (1949–​2007), illustrating how the understanding of child soldiers’ realities has deepened and evolved since the mid-​1900s. Key areas illustrating this evolution include the language used to frame the issue, changes in age limits, the recognition of indirect roles children take on in armed conflict, and the increased protections afforded to these children. Despite ongoing efforts at prevention, the recruitment of children into armed conflict continues unabated. This chapter provides an overview of the vital elements to understanding the child soldier phenomenon. In the first section, terms and definitions framing “who is a child soldier?” are unpacked. This section describes the difference in how child soldiering is framed and responded to “on paper” -​within legal instruments, as well as the changing definitions over time. In the second section of the chapter, we outline the current available statistics on the use of child soldiers. In the third section, we provide a description of the realities of child soldiers on the ground, with a particular focus on the experiences of girls, as well as media portrayals of child soldiers. The fourth section explores the tensions between the rights and protections afforded in international humanitarian law and the lived experiences of child soldiers, highlighting the complex ways these young people may both perpetrate, and simultaneously be victims of, atrocity crimes. We conclude with a discussion of recommendations for future policy and research.

2.  Child Soldiers: Unpacking Terms, Definitions, and Mechanisms of Protection The Fourth Geneva Convention (1949) and its 1977 Additional Protocols1 outline the rights of vulnerable people in international armed conflict, including minors (Machel, 2001) 1  Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention); Protocol

352    Myriam Denov and Anaïs Cadieux Van Vliet and prohibit the military recruitment and use of children under the age of 15. The Geneva Conventions provide a nascent framework on children directly involved in armed conflict, such as Article 51 of the Fourth Geneva Convention, which states that occupying forces shall not force children, under the age of 18, to work (Plattner, 1984). The United Nations Convention on the Rights of the Child (Article 38) (CRC)2 prohibited the recruitment of children under the age of 15 into state armed forces. The Optional Protocol to the CRC (2000)3 raised the minimum age of military recruitment, also prohibiting the conscription and participation of children under 18 years of age in non-​ state armed groups. Within a parallel timeframe, in an attempt to recognize, acknowledge, and address the critical, and multi-​faceted roles of children living within the context of armed groups, the Cape Town Principles,4 adopted in 1997, broadened the definition of a “child soldier” to include those not only participating directly in hostilities, but also those associated with armed groups in a variety of roles and contexts, including cooks, porters, messengers, and children recruited for sexual purposes and forced marriage. In 2007, the Paris Principles dropped the use of the term “child soldier” and instead employed “a child associated with an armed force or armed group”5 to better reflect the multiple roles of children within armed groups. The Paris Principles introduced the following designation, which represents the most current, internationally recognized definition of the phenomenon of children’s involvement in war: “A child associated with an armed force or armed group” refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys, and girls used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities (article 2).

The Paris Principles contain special recognitions for the needs of girls who have been recruited into armed conflict, children with disabilities, and/​or children with chronic health issues as a result of their participation, and other specific cases. The Principles also outline with more clarity the programming objectives and roles of various players (notably state actors, armed groups, and international aid workers and advocates) in preventing the

Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 609 (AP II). 2  Convention on the Rights of the Child (adopted November 20, 1989, entered into force September 2, 1990) 1577 UNTS 3 (CRC). 3  Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (adopted May 25, 2000, entered into force February 12, 2002) 2173 UNTS 222. 4  United Nations Children’s Fund (UNICEF). (1997) Cape Town Principles. Available at: https://​ www.unicef.org/​emerg/​files/​Cape_​Town_​Principles(1).pdf (Accessed: August 19, 2018). 5  United Nations Children’s Fund (UNICEF) (2007) The Paris Principles. Principles and Guidelines on Children Associated with Armed Forces or Armed Groups. Available at: http://​www.refworld.org/​ docid/​465198442.html (Accessed: August 17, 2018) (2007 Paris Principles).

Child Soldiers   353 recruitment of child soldiers and supporting their re-​integration. The Principles offer practical considerations for the implementation of legal instruments. More precisely, they explicitly build upon previous instruments while proposing concrete guidelines toward filling remaining gaps. For example, the Paris Principles highlight the importance of programming tailored to the local context, fostering the participation and guidance from children themselves, while capturing recurrent challenges and needs, such as the need to consider girls and their children born of wartime rape. Finally, the Paris Principles emphasize that children who have committed atrocities while in armed groups should first and foremost be treated as victims and not held legally accountable for their actions.6 The Vancouver Principles, introduced in 2017, seek to prioritize and further operationalize child protection within UN peacekeeping, with a focus on preventing the recruitment and use of child soldiers. The Vancouver Principles were conceived by the Government of Canada in partnership with the Roméo Dallaire Child Soldiers Initiative and developed in consultation with the UN Department of Peacekeeping Operations, UNICEF, the Special Representative to the Secretary General for Children and Armed Conflict, child protection actors and civil society partners, and UN Member States. The Principles are a set of political commitments focused on child protection in peacekeeping, including all stages of a conflict cycle. They comprise 17 principles that focus on preventing the recruitment and use of child soldiers by armed forces and groups and are designed to build upon and complement the existing framework on peacekeeping and child protection, most notably the Paris Principles.7 While the terms “child soldiers” and “children associated with armed forces” have been used to represent the realities of children actively engaged in armed conflict, neither of these terms adequately captures the realities of young people implicated in armed groups. Moreover, both these terms are inherently problematic. Although the term “child soldier” encapsulates the paradox of children’s involvement in wartime violence, particularly the blurring of constructed notions of childhood “innocence” with the brutality and violence of war, defining what is considered a “child” is invariably contentious. The CRC defines a child as “every human being below eighteen years” (Article 1). At the same time, critics argue that defining a childhood based solely upon age not only reflects a bias toward Western notions of childhood which are rooted in biomedical theory ( Rosen 2019), but also may overlook other salient cultural, social, economic, gendered, class, and other status determinants that extend well beyond the notion of age. “Childhood” is indeed a contested concept, and its meanings are socially constructed and vary in form and content across cultures, social groups, and localized understandings and values ( Bodineau, 2019; Rosen 2019). Age is not the only challenge when considering the concept of “child soldier.” The term “soldier” tends to conjure up archetypal symbols of uniformed men with extensive military training in active combat. These images are at odds with the realities of most of

6 

2007 Paris Principles, articles 3.6 and 8. of Canada (2017) The Vancouver Principles, “About.” Available at: https://​ www.vancouverprinciples.com/​(Accessed: January 5, 2019). 7 Government

354    Myriam Denov and Anaïs Cadieux Van Vliet the inadequately trained and outfitted child soldiers who fill the ranks of rebel groups in postcolonial wars. Moreover, the stereotypical portrayals of “soldier” conceals the many supporting roles that children take on during conflict as messengers, bodyguards, cooks, spies, porters, or in the realm of sexual exploitation and labor (Denov, 2010). Popular conceptions of who is a soldier (i.e., highly trained men) further obfuscate the reality of girls whose experiences of armed conflict may include sexual exploitation, child rearing (absent from popular narratives on “soldering”), as well as direct participation in hostilities (Denov, 2010). As Baines (2017) has explained, girls in armed groups might be thought of as “complex victims,” who were invariably victimized, especially through sexual violence, but who may have simultaneously participated in attacking civilian communities or enforced coercive practices within the armed group itself. As an example, in northern Uganda, some women within the Lord’s Resistance Army propagated sexual violence, whereby older women would “train” girls newly made into forced “wives” (Baines, 2017). While the term “children associated with armed forces” has been introduced into the vernacular—​largely in an effort to recognize the varied roles that children take on in war that extend far beyond combat—​the term fails to adequately connote children’s active contributions to contemporary war, implying that they remain at the periphery. Additionally, the use of such a term may deny children who have served in wartime supporting roles access to programs and privileges provided to those labeled as “combatants” in the period of disarmament, demobilization, and reintegration (DDR) (Bodineau, 2019). In other words, while the nomenclature has changed over time and in an effort to better capture the experiences of these children, none of these terms fully encompass the complex realities of young people involved in armed conflict.

3.  Global Realities of Child Soldiers Despite the international legal provisions and protections just outlined, children across the globe continue to be implicated in armed conflict. Gathering data on the number of child soldiers worldwide is a difficult task. Given that the recruitment of children in armed groups is a violation of international law, armed groups have a vested interest in hiding child recruitment. Moreover, gathering data is exceedingly difficult in the heat of conflict. Despite the challenges, a few advocacy groups (notably the Coalition to Stop the Use of Child Soldiers)8 have attempted to determine the number of child soldiers globally. However, these numbers need to be heeded with caution and may not be a true representation of the phenomenon. Several authors have highlighted the politics behind the formulation and use of these statistics, ultimately noting that current statistics may be skewed by the interests and agendas they serve. Pauls (2018) notes that data on child soldiers are sometimes used by NGOs for lobbying and fundraising purposes, and in some cases, the 8  Coalition to Stop the Use of Child Soldiers. (2008) Global Report. London: Coalition to Stop the Use of Child Soldiers. Available at: http://​reliefweb.int (accessed June 28, 2021)

Child Soldiers   355 estimates available may be inflated, inexact, or unreliable (Brett and McCallin, 1998 as cited in Pauls, 2018, p. 85). With this in mind, the 2004 Global Report published by the Coalition to Stop the Use of Child Soldiers estimated that 250,000 soldiers under the age of 18 were part of fighting forces in conflicts in 41 countries around the globe.9 By 2008, there was a reported drop in the number of child soldiers10 as tens of thousands had been released from armed groups and forces following peace agreements and demobilization programs in Afghanistan, Burundi, Cote d’Ivoire, DRC, Liberia, and South Sudan, among others.11 However, during this same period of time, conflicts in other countries, including Central African Republic, Chad, Iraq, Somalia, and Sudan (Darfur) were breaking out, reigniting, or intensifying, ultimately increasing child soldier recruitment. Child Soldier International estimated that since 2016, child soldiers were used in 18 countries, including seven countries where they were recruited and used by national state armies.12 The following section briefly outlines the realities of the child soldier phenomenon over the past two decades in Africa, the Americas, Europe, the Middle East, and Asia. Nearly all armed conflicts in Africa over the last two decades have involved children in armed groups as combatants and in supportive roles. In 2004, the Coalition to Stop the Use of Child Soldiers estimated that there were over 100,000 child soldiers associated with armed groups and forces in Africa, a figure that has fostered the perception of Africa as being the “epicenter” of the child soldier phenomenon (Singer, 2005). Over the past two decades, children have been recruited into armed groups in the wars in Angola, Côte D’Ivoire, Liberia, Mozambique, Rwanda, and Sierra Leone. They have also been recruited as soldiers in Burundi, Central African Republic, Chad, Democratic Republic of the Congo, Eritrea, Mali, Somalia, South Sudan, Sudan, and Uganda.13 Armed groups in Latin American countries such as El Salvador, Guatemala, and Peru have also involved thousands of children.14 Although the number of conflicts in Latin America appears to have declined in recent years, thousands of children were involved with armed groups in Colombia, including Fuerzas Armadas Revolucionarias de Colombia—​Ejército del Pueblo, the Unión Camilista-​Ejército de Liberación Nacional, and other paramilitary groups.15 While there are no reliable official statistics on the number of children who were

9 

Coalition to Stop the Use of Child Soldiers. (2004) Global Report. London: Coalition to Stop the Use of Child Soldiers. Available at: http://​reliefweb.int (accessed June 28, 2021) 10  A child soldier is defined as “any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities” (See p. 7 of 2007 Paris Principles.) 11  2008 Coalition to Stop the Use of Child Soldiers Global Report. 12  Child Soldiers International (2018) World Index. Available at: https://​childsoldiersworldindex.org/​ (Accessed: December 27, 2018) (2018 Child Soldiers International World Index). 13  2008 Coalition to Stop the Use of Child Soldiers Global Report. 14  2004 Coalition to Stop the Use of Child Soldiers Global Report. 15  Watchlist on Children and Armed Conflict (2012) No One to Trust: Children and Armed Conflict in Colombia. Available at: https://​watchlist.org/​publications/​no-​one-​to-​trust-​children-​and-​armed-​ conflict-​in-​colombia/​ (Accessed: January 2, 2019) (2012 Watchlist on Children and Armed Conflict).

356    Myriam Denov and Anaïs Cadieux Van Vliet associated with armed groups over the course of the conflict in Colombia, estimates range from 5,000 to 14,000 children.16 Although not a part of the world typically associated with the phenomenon of child soldiering, European countries have also recruited child soldiers. Over the last 30 years, children have been used as spies, messengers, porters of weapons and ammunition, and active fighters in armed groups in Bosnia-​Herzegovina, Chechnya, Nagorno-​Karabakh, Turkey, Kosovo, and Macedonia.17 More recently, the involvement of child soldiers has been reported in the conflict in Ukraine (Shevchenko, 2014). The United Kingdom has also attracted criticism by Child Soldier International18 and other advocacy groups for its deployment of five 17-​year-​old soldiers to Afghanistan and Iraq between 2007 and 2010, with one known to have participated in combat.19 Other countries in Europe, including France, Austria,20 Georgia, Estonia, and Norway, have also been known to recruit and/​or give military-​type training to boys and girls who are under 18.21 Over the past two decades, the Coalition to Stop the Use of Soldiers, among others, has raised concerns regarding the Middle East and Asia’s increasingly problematic patterns of recruiting children into armed groups.22 Between 2004 and 2007, child soldiers were recruited into armed groups in Afghanistan, India, Indonesia, Iraq, Burma, Nepal, Occupied Palestinian Territory, the Philippines, Sri Lanka, and Thailand.23 Between 2010 and 2012, Israel, Libya, and Yemen were added to this list. A practice that is not commonly seen in other regions, child soldiers have been reportedly used in suicide attacks, particularly in the ongoing conflicts in Afghanistan, Iraq, and Occupied Palestinian Territory.24 Child soldiers are said to exist in all regions of the world and, inevitably, wherever there is an armed conflict.25 Because the majority of reports and international initiatives continue to regard the notion of “child soldiers” as either male or gender neutral, the effects of armed conflict on young girls, and the gendered implications of children in combat, are often rendered peripheral or invisible. This is addressed in the next section in our exploration of the realities of child soldiers.

16  Watchlist on Children and Armed Conflict (2012) No One to Trust: Children and Armed Conflict in Colombia, p. 16. Available at: watchlist.org (Accessed June 28, 2021). 17  Coalition to Stop the Use of Child Soldiers (2001) Global Report. London: Coalition to Stop the Use of Child Soldiers. Available at: http://​reliefweb.int (accessed June 28, 2021). 18 Child Soldiers International (2012) Report: Louder than Words: An Agenda for Action to End State Use of Child Soldiers. London: Child Soldiers International. Available at : https://​resourcecentre. savethechildren.net/​library/​louder-​words-​agenda-​action-​end-​state-​use-​child-​soldiers (Accessed June 28, 2021). 19  2012 Child Soldiers International Report. 20 The Roméo Dallaire Child Soldiers Initiative. (2019) Reports of children used in hostilities. Available at: https://​childsoldiersworldindex.org/​hostilities (Accessed: September 10, 2019). 21  2012 Child Soldiers International Report. 22  See 2008 Coalition to Stop the Use of Child Soldiers Global Report; and Human Rights Watch (2019) UN New List of Shame Shortchanges Children: Ignores Evidence on Saudi Coalition, Israel, Afghanistan. Available at: https://​www.hrw.org/​news/​2019/​07/​30/​un-​new-​list-​shame-​shortchanges-​ children. (Accessed: September 10, 2019). 23  2008 Coalition to Stop the Use of Child Soldiers Global Report. 24  2008 Coalition to Stop the Use of Child Soldiers Global Report. 25  2008 Coalition to Stop the Use of Child Soldiers Global Report.

Child Soldiers   357

4.  Understanding the Experiences of Child Soldiers: Child Rights Violations during and following Armed Conflict Article 38 of the CRC establishes that children have the right to be protected during times of war, and that governments must do everything they can to prevent child recruitment into armed groups, and to protect and care for children affected by war. Despite such protections, children are implicated in armed conflict and contend with overwhelming rights violations, experiences of victimization, and insecurity on multiple levels (Denov, 2010; Bodineau, 2019). They often lack access to adequate food and nutrition, education, health care, and often live in contexts of dire poverty. As a result of separation from their families and communities, the security and survival of traditional communities, cultures, and values are put severely at risk. Moreover, children’s personal and physical security are constantly threatened through involvement in combat, being forced to perpetrate acts of torture, violence, and abuse, and being made victims of these same acts. The violence and victimization experienced by children may range along a continuum from verbal abuse to acts of physical and psychological cruelty. Command structures of the armed groups, as well as the ways in which the armed groups are formally organized and carry out their missions, are often forged and maintained within a framework of threats, fear, brutality, and violence. Moreover, the daily routines, values, and interactions within armed groups are often steeped in hierarchical and patriarchal power relations, threats, and fear, and may be similarly propagated and sustained through extraordinary violence. Researchers have pointed to a pervasive and overarching culture of violence within armed groups, whereby violence and the threat of violence often permeate every aspect of children’s daily lives (Denov, 2010; Bodineau, 2019). Systematic sexual violence against children has occurred on a massive scale in armed conflicts. According to UNICEF, children in conflict-​affected countries are the most vulnerable to sexual violence, with more than 150 million young girls and 73 million boys experiencing these atrocities every year.26 Research has documented that children, both boys and girls, associated with armed groups are particularly vulnerable to sexual violence and abuse (Denov, 2010; Worthen et al., 2010; Dolan, 2014). Moreover, some girls in armed groups may be forced to “marry” males within armed groups, thus becoming their sexual “property” and sometimes bearing children as a result of sexual violence (Coulter, 2009; Denov, 2015). The long-​term consequences of wartime sexual violence have been well-​ documented, including sexually transmitted infections like HIV/​AIDS, reproductive health problems, as well as profound socioeconomic realities of rejection, stigma, and exclusion (Denov, 2015; Denov and Lakor, 2018). Rights violations for children also include their active participation in war. Various factors may propel boys and girls into armed violence and combat: powerful indoctrination, 26 United Nations Children’s Fund (UNICEF) (2014) Hidden in Plain Sight. Available at: https://​ www.unicef.org/​publications/​files/​Hidden_​in_​plain_​sight_​statistical_​analysis_​Summary_​EN_​2_​Sept_​ 2014.pdf (Accessed: January 2, 2019).

358    Myriam Denov and Anaïs Cadieux Van Vliet harsh training, and use of threats and violence to promote terror and compliance (Bloom & Horgan, 2019). Where obedience is an imperative to survival, there is often little room for opposition. Thus, engaging in combat may be a fundamental strategy of survival. As this former girl soldier from Colombia noted: That was the worst thing that could happen to one in a lifetime. Over there [in the armed group], if someone refuses to participate in combat, they will kill them in front of everybody. . . . I saw three men killed because of that. It’s horrible but you have to. Otherwise if you don’t [do what they say] you don’t get out of there alive. The first time in combat . . . that was very hard (Denov and Marchand, 2014, p. 233).

In some contexts, children have reportedly attained powerful positions as leaders and/​or commanders in armed groups (Denov, 2010). Research has also found that within contexts of constant threats, subservience, victimization, and fear, brandishing a weapon may instill a sense of power and control for some child soldiers. This sense of wartime empowerment may mark a clear departure from the pre-​war context where many youths have felt disillusioned as well as socially and economically immobile (Wessells, 2016). For most child soldiers, however, wartime realities are likely to embody experiences of victimization and perpetration simultaneously. Rather than being indisputable victims or unequivocal perpetrators, children within armed groups often continually drift between committing acts of violence and atrocity, while simultaneously being targets of violence and atrocity (Denov, 2010). Drumbl (2016) has addressed this complex position of child soldiers. On the one hand, the Paris Principles state that child soldiers should be viewed as victims first and foremost. In practice, however, they are often viewed with suspicion and fear by their communities, who may have been the victims of atrocities committed by these young people.

4.1. Re-​integration With the end of conflict, or in the aftermath of participation in armed violence, comes critical transitions for children formerly associated with armed groups. In many cases, children leave their militarized surroundings and, in a relatively short period of time, are faced with the need to be reintegrated into norms and institutions from which they had been isolated, often for years. The term “re-​integration” is a contested one, as it intrinsically assumes that children return to their communities of origin, although this is rarely the norm. Post-​ demobilization experiences are inevitably shaped and constrained by many factors, including gender, ethnicity, socioeconomic status, ability, position within the community prior to and following the conflict, and access to social support, among others. Moreover, former child soldiers are not a homogeneous group—​their pathways and experiences are highly diverse. Some may emerge in the aftermath of armed violence as mothers, disabled, orphaned, injured, or none of these. This diversity needs to be acknowledged in the understanding of their post-​war lives. In relation to the post-​war context, Article 39 of the CRC articulates that: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or

Child Soldiers   359 abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-​respect and dignity of the child.

In a similar vein, the UN’s Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS) encourage child protection agencies to ensure inclusive and age-​ appropriate interventions for children (McMullin, 2011). These standards underscore the reality that children’s needs in the post-​war period are distinct from those of adults. A growing body of literature has sought to explore children’s experiences following demobilization, and the various rights violations that they may endure in the post-​war context. These include the limitations of disarmament, demobilization, and re-​integration programming, weakened educational and health infrastructures, as well as a climate of stigma and community rejection, which are addressed below.

4.2. Disarmament, demobilization, and re-​integration (DDR) programming Disarmament27, demobilization,28 and re-​integration29 are said to be crucial to increasing security, public safety, and protection in the aftermath of conflict, as well as promoting peace. While DDR programs are key to addressing CRC’s Article 39’s goal of promoting “physical and psychological recovery and social reintegration” in the aftermath of war, such programming has been criticized for failing to adequately address the post-​war needs of children affected by war (Bürge, 2011; Haer, 2017). Scholars and practitioners have argued that DDR programs do not sufficiently provide youths with the skills requisite for re-​ integration in the post-​conflict era, particularly in light of the frail economy in many post-​ war contexts (Bürge, 2011). By equipping former soldiers with vocational skills in areas such as bricklaying, carpentry, agriculture, auto mechanics, soap making, and hairdressing, it is often presumed that social and economic re-​integration will be achieved. Although the underlying objectives of DDR programs may be well-​intentioned, many have argued that they often fail to seriously consider numerous factors upon which their success depends, including the voiced needs, skills, and desires of children and youth emerging from war (Bürge, 2011). Significantly, DDR programs tend to concentrate on the supply of skilled labor, while overlooking the short-​and long-​term needs of local and national economies in terms

27  Disarmament is the collection, control, and disposal of small arms, ammunition, explosives, and light and heavy weapons of combatants and often also of the civilian population. Disarmament includes the development of responsible arms management programs. See United Nations. (2006) Integrated Disarmament, Demobilization and Reintegration Standards. Available at: http://​cpaor.net/​sites/​default/​ files/​cp/​UN-​2006-​IDDRS.pdf (Accessed: February 21, 2020), p. 2 (United Nations 2006). 28  Demobilization is the formal and controlled discharge of active combatants from armed forces or other armed groups (United Nations 2006, p. 2). 29  Re-​integration is the process by which ex-​combatants acquire civilian status and gain sustainable employment and income. Re-​integration is essentially a social and economic process with an open time frame, primarily taking place in communities at the local level (United Nations 2006, p. 2).

360    Myriam Denov and Anaïs Cadieux Van Vliet of specific skills and labor. Sierra Leone’s DDR program was a case in point. In the absence of market demand for skilled labor, the country was faced with a growing pool of unemployed, skilled, educated, and demoralized youth (Body, 2005). As Peters (2007) highlighted, 7,000 ex-​combatants opted out of the DDR program in search of alternative paths to re-​integration. The degree to which DDR was rejected should not be overlooked. This phenomenon, common to many post-​conflict settings, highlights DDR’s limited capacity to respond meaningfully to individuals’ and communities’ post-​war realities, rights, and needs. Critiques of DDR programming have also highlighted the inherent gender bias and exclusion of girls. Despite the growing recognition of girls in armed groups, there are clear indications that girls continue to be marginalized within DDR programming. DDR programs that have taken place in Angola, Mozambique, Sierra Leone, and Sudan provide salient examples of post-​conflict gendered exclusion, specifically the privileging of male combatants at the expense of women and girls. In many contexts, girls may actively choose to avoid DDR programs as a result of gender-​based violence and insecurity in DDR camps, fear of stigmatization, as well as lack of medical or hygienic facilities (McKay and Mazurana, 2004; Dunhill & Kidd, 2020). More recently, young mothers have been identified as being the most underserved population within DDR programs. The overall inattention to the needs of girls and girl mothers by national governments and the international community has been regarded as systemic and discriminatory (Worthen et al., 2010, p. 2). As a result of the exclusionary nature of many DDR programs, many girls formerly associated with fighting forces experience “spontaneous reintegration,” whereby girls assimilate directly into their communities, return to new communities, or drift to camps for the internally displaced in search of alternative forms of support (Dunhill and Kidd, 2020). Without formal mechanisms of assistance, many girls are left to fend for themselves and their children under challenging circumstances. Ultimately, in contexts where programming has downplayed the integral roles of females in armed groups, such programming can have the effect of extending gender-​based insecurity, rights violations, and power differentiation into the post-​conflict era.

4.3. Stigma and community rejection Children’s former affiliation with an armed group, including their exposure to and participation in acts of violence, may instigate suspicion and mistrust among family, community, peers, and the larger society. Research has confirmed that former child soldiers returning to their communities often experience rejection and stigma, though to varying degrees (Denov and Marchand, 2014). This climate of prejudice and stigma may bar youth from a variety of opportunities that are integral to their survival and in safeguarding their rights, including employment, education, health, as well as social and community support. For girls, social exclusion may be particularly challenging. Research has uncovered that girls may be ostracized in the post-​war period as a result of the gender norms that they have transgressed through their involvement in armed conflict, their experiences of sexual violence, and having borne children in armed groups (Dunhill & Kidd, 2020). Frequently, without the support of family, they may be forced to build new support networks, often

Child Soldiers   361 within a hostile context. The realities of stigma and marginalization may push many to live “underground,” concealing their status as former child soldiers (Denov and Marchand, 2014). Stigma, community rejection, lack of support, and economic and social exclusion further undermine former child soldiers’ right to recovery and healing in the post-​conflict era, specifically by rendering them even more susceptible to violence, poverty, and marginality. Without opportunities in the formal labor market, many former child soldiers, particularly those without family, have little choice but to engage in potentially dangerous activities in order to survive, including sex work and petty crime (Cubitt, 2012; Denov and Buccitelli, 2013). In these settings, children’s rights violations run rampant. For instance, in northern Uganda, former child soldiers, including those engaged in sex work, are commonly exposed to sexual violence, abuse, and exploitation (Spitzer and Twikirize, 2013). Former child soldiers in post-​war Sierra Leone have been similarly exposed to rights abuses. Many former child soldiers in this country flocked to urban areas in order to carve out new livelihoods. However, these young people often contended with homelessness, police harassment and aggression, material deprivation, as well as physical, sexual, and psychological violence (Denov and Buccitelli, 2013).

5.  The Unique Experiences of Girls Literature dedicated to the experiences of girls within armed groups has led to an increasingly complex understanding of their roles, contributions, and wartime and post-​war realities. The realities of girls affected by armed conflict are highly contextual, and girl soldiers are in no way a homogeneous group. The historical, socio-​cultural, political, and economic context of the armed conflict, as well as individual trajectories, shape and inform the experiences of girls, which preclude any universalized assertions. And yet, while generalizations are inappropriate, there are similarities in many of their wartime and post-​ war life circumstances and realities. Despite their overall marginalization and invisibility in academic and policy discussions of armed conflict, girls are currently embroiled in armed conflict far more widely than is commonly reported. Between 1990 and 2003, girls were associated with fighting forces in 55 countries and were active participants in conflict in 38 countries around the globe30 (McKay and Mazurana, 2004). Girls appear to be most often present in armed opposition groups, paramilitaries, and militias, yet they are also present in government forces. While the proportion of girls in armed groups and forces varies according to geographic region, it is estimated to range from 10 percent to 30 percent of all combatants (Bouta, 2005). In Africa, girls are said to comprise 30 percent to 40 percent of all child combatants.31

30 These international and civil conflicts include Angola, Burundi, Colombia, DRC, El Salvador, Ethiopia, Eritrea, Guatemala, Lebanon, Liberia, Macedonia, Nepal, Peru, Philippines, Sierra Leone, Sri Lanka, Sudan, Zimbabwe, and others (Mazurana et al., 2002). 31  United Nations Youth Envoy (2015) Red Hand Day: 4 out of 10 Child Soldiers Are Girls. Available at: https://​www.un.org/​youthenvoy/​2015/​02/​4-​10-​child-​soldiers-​girls/​ (Accessed: December 27, 2018).

362    Myriam Denov and Anaïs Cadieux Van Vliet Our knowledge of girl soldiers has undergone various stages of awareness and understanding. Initially, scholarly discussions of girls focused primarily on their vulnerability and their experiences as victims. Indeed, girls are subjected to grave violations of their human rights through forced recruitment, killing, maiming, sexual violence, sexual exploitation, abduction, forced marriage, and increased exposure to HIV/​AIDS. The direct effects of armed conflict on girls include victimization through acts of murder, terrorism, torture, and rape, while the indirect effects include displacement, loss of home or property, family separation and disintegration, poverty, and illness. For girls in armed groups, the chronic quest for safety and security, regardless of the nature of their roles, is particularly challenging due to the vulnerability exacerbated by their gender, age, and physical disadvantage (Baines 2017;). That girls within the context of armed conflict are frequently victims of harsh violence, often under the threat of a gun, is evident. While highlighting girls’ victimization is critical to advancing our understanding of girls’ experiences of war and the profound insecurities, human rights abuses, and challenges they face both during and following armed conflict, girls are not merely voiceless victims, devoid of agency (Baines, 2017). Research on girl soldiers has provided a richer portrait of girls’ experiences, shedding light on their multifaceted and sometimes contradictory roles within armed groups (Wessells, 2006) and their complex re-​integration process (McKay, 2006).

5.1. Life in the aftermath of war for girl soldiers Girl soldiers face the difficult transition from their militarized environments to a civilian life in the aftermath of their participation in fighting forces, whether or not the conflict has officially ended (Coulter, 2009). When leaving fighting forces, girls must readjust to norms and institutions from which they have been disconnected and isolated, often for many years. While demobilization can occur abruptly and in a short period of time, the social reintegration process is long-​term and often complex. The post-​demobilization experiences of girl soldiers are diverse, and this diversity should be acknowledged in the understanding of their post-​conflict lives (Dunhill and Kidd, 2020, Baines 217). At the same time, there are key factors that influence the experiences of girl soldiers in the post-​conflict period, including gender, ethnicity, socioeconomic status, position within the community prior to and following the conflict, and access to social support. Other such war-​related impacts as displacement, living in camps, and family separation may also influence girls’ post-​war lives. Some girl soldiers may be injured and left disabled, while others suffer sexual violence with severe health and psycho-​social outcomes. In some cases, girls end up “married” to a commander, often through coercion or as a way to survive (Baines, 2017). Some girl soldiers return from armed groups with children. Despite the highly diverse paths of girl soldiers and the critical roles they played during the conflict period, girls are frequently rendered invisible and marginalized in the aftermath of the conflict. Additionally, the dual roles of the girls within armed groups—​as both victims and perpetrators of violence—​often complicate their re-​integration process (Denov, 2010). Some of the key issues that former girl soldiers face in the aftermath of armed conflict include their exclusion from the programs aimed at former child soldiers, as well as the specific features of their gendered experiences related to social stigma, their economic realities,

Child Soldiers   363 and the psycho-​social impacts and outcomes of wartime experiences on their sense of self and identity, with a particular attention to motherhood.

6.  Iconography and Child Soldiers Alongside growing academic research in the realm of child soldiers, the Western news media and even Hollywood, through films such as Blood Diamond, have also shown an increased interest in the issue. However, several authors have noted the oversimplification and sensationalization of the representations of child soldiers presented in the media (Denov, 2010; Drumbl, 2012). As Booker (2007, p. 354) notes, “The weakness of Blood Diamond is that it does not give the viewers a realistic picture of the plight of child soldiers. . . . Female child soldiers are not mentioned at all.” Various scholars have argued that media producers configure the awareness and experience of each of us, as we may internalize what is shown in the mass media (e.g., McLuhan, 1964). Moreover, the media is frequently considered the consummate ideological tool, shaping and reflecting particular worldviews: “Media images help shape our view of the world and our deepest values: what we consider good or bad . . . moral or evil . . . who has power and who is powerless, who is allowed to exercise force and violence and who is not” (Kellner, 1995, p. 5). With this in mind, it is of interest to explore the common representations of child soldiers in the print news media. During the early 1990s to mid-​2000s, media representations appeared to turn on the categorical themes of child soldiers as “the dangerous and disorderly,” “the hapless victim,” and “the hero” (Denov, 2010, pp. 6–​14). More recent media portrayals have essentially remained the same, though some recent depictions have offered increased nuance. An analysis of the earlier timeframe is thus addressed in the following section, followed by more recent portrayals, to better illustrate the evolution (or lack thereof) in the depictions of child soldiers in the media over the last three decades.

6.1. Dangerous and disorderly Rosen (2005) and Skinner (1999) note that child soldiers have tended to be stigmatized in the popular media as “bandits,” “vermin,” “monsters,” and “barbarians”—​they were portrayed as fully aware of their actions. In numerous Western newspaper reports, child soldiers have been described as holding little remorse for their victims (Denov, 2010). Particularly apparent when examining discussions of Africa, Western news media content in the 1990s suggested that myriad interrelated circumstances have created a dangerous new class of young, armed thugs: “Ugandan Child Soldiers Have Been Warped by War” (Wasswa, 1997); “Liberian Boy Soldiers Leave a Swathe of Ruin” (Maier, 1993). Significantly, the violent actions of child soldiers are often assumed to continue in the war’s aftermath. Perceived to be lost in a cycle of unrelenting violence and iniquity, children who have participated in armed conflict have generally been assumed to be permanently damaged (Denov, 2010). These portrayals of child soldiers as dangerous and disorderly have also influenced the language of policy makers. The French foreign minister, keynote speaker

364    Myriam Denov and Anaïs Cadieux Van Vliet at a conference on child soldiers in 2007, warned that child soldiers “are a time bomb that threatens stability and growth.”32 By portraying child soldiers as largely threatening and uncivilized, the bulk of international news reporting, and much of academic and policy-​oriented discourse, has tended to “pathologize” children in armed conflict. Their images are used to convey the horror of childhood perverted from its “natural” course of innocence, fragility, and purity. Such depictions also encourage those who seek to present warfare in the developing world as inexplicable, brutal, and disconnected from the “civilised” world order (Aning and McIntyre, 2004). Highly racialized and imbued with stereotypes, depictions of child soldiers as “dangerous” and “disorderly” work to underscore the perceived moral superiority of the North as compared to the “savage” South (Macmillan, 2009). Such representations, past and present, dehumanize child soldiers and their societies, and ultimately present a site where colonial themes are played out.

6.2. The victim In stark contrast to the construction of child soldiers as dangerous is the portrayal of child soldiers as “victims” (Shepler, 2005; Rosen, 2005). Within this construction, children associated with fighting forces are frequently depicted as the pawns of deceitful yet powerful warlords, as well as broader undemocratic regimes. Such children have been referred to in the print media as “permanently scarred” (Kilgour, 1998) and “lost young souls” (Simmons, 1999). Such depictions draw from some of our most romanticized contemporary Western conceptions of childhood and its association with innocence and vulnerability. Several authors have noted that representations of child soldiers as quintessential victims have sometimes been strategically propagated by some non-​governmental organizations (NGOs) in order to capture world attention (Rosen, 2005). While such portrayals may help to garner international attention and advocacy for child soldiers, they nonetheless have important negative implications. Burman (1994, p. 246) has named the imagery of children used in humanitarian emergencies—​specifically in the Global South—​as “the iconography of emergencies” or “disaster pornography”—​terms which describe the gruesome fascination with depicting and commercially benefiting from people’s suffering and degradation. Burman (1994, p. 246) warns that while the victimizing imagery of children in disasters in the Global South may evoke sympathy, sympathy is a double-​edged tool, as “its evocation can threaten to be patronising and render recipients as ‘other.’ ” Children in such contexts become signifiers of distress and are dehumanized. They are rendered as passive objects of a Western gaze which “seeks to confirm its own agency and omnipotence to ward off its own insecurities” (Burman, 1994, p. 238). The victim portrayal ultimately disempowers, decontextualizes, and eradicates any potential agency or active decision-​making.

32 “Child Soldiers ‘Are a Time Bomb.’  ” (2007) BBC News, February 5. Available at: http://​ news.bbc.co.uk/​2/​hi/​europe/​6330503.stm (Accessed: December 13, 2018).

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6.3. The hero Heroic representations of young soldiers have long existed. For example, during the American Civil War, hundreds of boys who served as drummer boys in the Union and Confederate armies were featured in newspapers and books as heroic adventurers (Marten, 2004). Moreover, in many contemporary contexts around the world, children (largely boys) may gain unique social and cultural rewards of heroism through participation in a liberation struggle (Wessells, 2006). Nonetheless, it is only quite recently that Western media discourses have linked contemporary child soldiers with heroism, often assigning celebrity status to former child soldiers, particularly those living in the Global North. These youths have been portrayed as brave survivors of extreme violence who have overcome great adversity and ultimately, despite their participation in violence, have been redeemed. An example of this construction is the news media’s early portrayal of former child soldier and author Ishmael Beah, whose memoir on his life as a child soldier in Sierra Leone gained him international attention. Beah’s journey in and out of armed violence was, however, documented by some journalists as a heroic transformation from violence to redemption. As these newspapers reported: “Once a Drugged Child Soldier, Beah Reclaims His Soul” (Guthmann, 2007); “From Child Soldier to Poster Boy” (Gumbel, 2007). The three depictions of child soldiers outlined in this chapter hold important elements in common. In each portrayal, child soldiers are exoticized, decontextualized, and essentialized. The complexity of their wartime and post-​war lives is lost.

6.4. Invisible girls, emblematic victims When exploring representations of child soldiers (most often, images of boys carrying guns), one would assume that girls have no presence in contemporary armed groups. Scholarly literature shows similar patterns of gender (in)visibility. Until relatively recently, much of the scholarly and policy literature has portrayed child soldiery as a uniquely male phenomenon. Indeed, officials, governments, and national and international bodies frequently cover up, overlook, or refuse to recognize girls’ presence, needs, and rights during and following armed conflict (McKay and Mazurana, 2004). Importantly, when girls within armed groups are discussed, whether in academia, policy making, or the media, there has been a tendency for them to be portrayed predominantly as silent victims—​particularly as “wives,” in tangential supporting roles, and as victims of sexual violence (Baines, 2017).

6.5. More recent depictions: Hollywood and Netflix The issue of child soldiers is gaining greater attention in the Global North. Yet, have depictions of child soldiers altered or evolved significantly over time, especially in the last decade-​Are we seeing more complex representations? Through a combined quantitative and qualitative content analysis, Tassava (2017) explored the portrayals of child soldiers in

366    Myriam Denov and Anaïs Cadieux Van Vliet seventeen documentaries and Hollywood films. She found that while girls were portrayed in contemporary Hollywood films and documentaries on child soldiers more often than expected, the unique challenges and complexities they face are often overlooked. Netflix has addressed the child soldier issue through the release of the series La Niña and the film Beasts of No Nation, both of which have garnered significant popular attention. The series La Niña portrays a girl soldier in Colombia, while Beasts of No Nation is based on Uzodinma Iweala’s 2005 novel of the same name. In less than two weeks of the film’s release, more than three million people watched it online—​underscoring the film’s powerful impact (O’Bryan 2015). Yet not all have found the portrayal of child soldiers in the film as accurately depicting the complexity of the child soldier issue. O’Bryan (2015, p. 1) offered the following analysis of the film: Beasts of No Nation represents a missed opportunity to challenge the stereotypes that exclude thousands of children in conflict zones from rehabilitation programs. Policymakers and filmmakers alike have a responsibility to challenge such simplifications. For as long as our views of these children remain distorted by stereotypes, they will continue to cycle in and out of war.

While the realities of the re-​integration experience and the roles of girls in armed conflict appear more frequently in current media portrayals, it would appear that more recent depictions of child soldiers have continued to rely on depictions of child soldiers as “heroes,” as “dangerous and disorderly,” and as “victims.”

6.6. The persistence of reductive portrayals: A note on empirical evidence Importantly, reductive depictions of child soldiers persist despite a growing literature pointing to the contrary. Empirical studies conducted in a variety of contexts have underscored the complexity of experiences associated with child soldiering (see Honwana, 2006; Wessells, 2006; Utas and Jörgel, 2008; Denov, 2010). In particular, this evidence has challenged the portrayals of girls associated with fighting forces as primarily victims and sex slaves. In her study of former female child soldiers in Ethiopia, Veale (2003) highlights that none of the women regarded themselves as having been powerless or having been victimized. The women felt they were changed by their experience as fighters, and overwhelmingly saw this as a positive change. Similarly, West (2004) conducted interviews with women in Mozambique who served as children in the Frente de Libertação de Moçambique. These women viewed their participation in combat as empowering and as releasing them from colonial rules and patriarchal dominance in Mozambican society. Research has also challenged the assumption that former child soldiers are destined to a post-​war life of violence. Annan et al. (2007) reveal that violent behavior rarely persisted among former child soldiers in Northern Uganda. Similarly, Boothby’s (2006) longitudinal study of former child soldiers in Mozambique demonstrated that most respondents became productive, capable, and caring adults who actively engaged in the collective affairs of their communities.

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7.  Tensions and Contradictions There are inherent tensions and contradictions between the experiences of child soldiers and the formal initiatives that have been put into place to prohibit and prevent their recruitment into conflict. A key example of such contradictions is the reality that some governments may contravene their official commitments as signatories to various legal instruments. For example, the African Charter states: “State Parties [ . . . ] shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.”33 However, of the 22 African countries cited as having children engaged in armed groups over the last two decades, all have ratified this Charter (Huynh et al., 2015). Further exemplifying the extent of these contradictions, in 1998, the Rome Statute of the International Criminal Court defined “conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities” as a war crime.34 The Special Court of Sierra Leone determined that child soldiers between the ages of 15 and 18 could be found guilty of heinous crimes, would not be imprisoned, but could be “sentenced” to a truth and reconciliation mechanism (Frulli, 2000; Romero, 2004). This decision sparked intense debate about whether children who had voluntarily joined the ranks of armed groups should be deemed responsible for their actions. As Novogrodsky (2013, p. 361) notes: These artificial groupings [victim, perpetrator, bystander] are both interesting and problematic as identities are fluid, particularly in armed conflict. The same person can occupy all three roles such that an individual could be victim, victimizer, and/​or observer. In addition, it is crucial to note that our ability to develop a capacious understanding of child soldiering is impeded by rigid categories. But even a cursory review of the case law demonstrates that international criminal law relies heavily on distinct labels that separate wrongdoers from sufferers and an almost reflexive discomfort with multiple identities.

Further exemplifying tensions between legal instruments and protections, popular opinion, and the realities of child soldiers on the ground, on February 4, 2021, Dominic Ongwen, a former high-​ranking member of the Lord’s Resistance Army (LRA), was found guilty of 61 counts of crimes against humanity and war crimes committed after July 1, 2002 in northern Uganda (ICC, 2021). What makes his case unique is that he himself was a child soldier—​ abducted as a young child and forced to participate in the LRA and atrocities committed in its name and by its members. While he was tried only for acts committed after his 18th birthday, his case highlights the difficulty in navigating and handling the complex status of child soldiers as both victims and perpetrators of atrocities.

33  African Charter on the Rights and Welfare of the Child (adopted July 11, 1990, entered into force November 29, 1999) CAB/​LEG/​24.9/​49 (1990), Article 22. 34  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute), Article 8 (b)(xxvi).

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8.  Conclusion By unpacking terms and definitions in legal instruments and policy documents, presenting common media portrayals, sharing the realities of child soldiers, and discussing the failure of states to uphold their commitments, this chapter has highlighted the complexities of the child soldier phenomenon as simultaneously victims and participants in atrocity crimes, and the gaps that exist between theory and practice in terms of their protection. These gaps highlight key areas warranting further attention both in research and policy development. First, it is imperative that the perspectives of child soldiers are incorporated to better capture the breadth of their needs, developing more appropriate programming tailored to these diverse needs, as well as the urgency of expanding DDR programming to provide adequate support to children exiting armed conflict, particularly over the long term. Researchers can also play an important role in bridging the gap between theory and practice through the expansion of knowledge on girl soldiers in order to develop more tailored programming to meet their unique needs. Moreover, research and expanded public discussions are needed to better respond to the profound ethical and legal questions that child soldiers raise. In particular, their dual status as victims and perpetrators of atrocity crimes warrants further attention. These questions have significant real-​world ramifications for post-​conflict reconstruction for some of the most vulnerable members of our communities. Much work also remains to be done on the ground. The 2017 Vancouver Principles35 offer some hope toward better aligning interventions with the lived realities of child soldiers. More precisely, the Vancouver Principles seek to prioritize and further operationalize child protection within UN peacekeeping with a focus on preventing the recruitment and use of child soldiers. The Principles also call for tailored DDR programming for child soldiers. However, until more is done to bolster state commitments, ensuring that formal protections result in appropriate, concrete action, developing further guidelines may have limited success.

References Aning, K., and McIntyre, A. (2004) “From Youth Rebellion to Child Abduction: The Anatomy of Recruitment in Sierra Leone.” In: McIntyre, A. (ed.) Invisible Stakeholders: The Impact of Children on War. Pretoria: Institute for Security Studies, pp. 67–​86. Annan, J., Blattman, C., Carlson, K., and Mazurana, D. (2007) The Survey of War Affected Youth: Making Reintegration Work for Youth in Northern Uganda. Boston: Feinstein International Center. Baines, E. (2017) Buried in the Heart: Women, Complex Victimhood and the War in Northern Uganda. Cambridge: Cambridge University Press. Bloom, M. & Horgan, J. (2019). “Pathways to engagement”. In Bloom, M (Ed) Small arms: Children and terrorism. NY:Cornell University Press.

35 Government of Canada (2017) The Vancouver Principles, “About.” Available at: https://​ www.vancouverprinciples.com/​(Accessed: January 5, 2019).

Child Soldiers   369 Bodineau, S., 2019. Droits de l'enfant en praxis: la protection des enfants kadogos en République démocratique du Congo. Canada: Université Laval [doctoral thesis] Body, T. (2005) Reintegration of Ex-​Combatants through Micro-​Enterprises: An Operational Framework. Clementsport: Canadian Peacekeeping Centre. Booker, T.A. (2007) “Blood Diamond.” Political Communication 24(3), pp. 353–​354. Boothby, N. (2006) “What Happens When Child Soldiers Grow Up? The Mozambique Case Study.” Intervention 4(3), pp. 244–​259. Bouta, T. (2005) Gender and Disarmament, Demobilization and Reintegration: Building Blocks for Dutch Policy. Netherlands: Clingendael Conflict Research Unit. Brett, R., & McCallin, M. (1998). Children-​the Invisible Soldiers. Rädda Barnen. Bürge, M. (2011) “Riding the Narrow Tracks of Moral Life: Commercial Motorbike Riders in Makeni, Sierra Leone.” Africa Today 58(2), pp. 59–​95. Burman, E. (1994) “Innocents Abroad: Western Fantasies of Childhood and the Iconography of Emergencies.” Disasters 18(3), pp. 238–​253. Coulter, C. (2009) Bush Wives and Girl Soldiers: Women’s Lives through War and Peace in Sierra Leone. Ithaca, NY: Cornell University. Cubitt, C. (2012) “Political Youth: Finding Alternatives to Violence in Sierra Leone.” In: Maina, G. (ed.) Opportunity or Threat: The Engagement of Youth in African Societies. Durban: African Centre for the Constructive Resolution of Disputes (ACCORD), pp. 15–​53. Denov, M. (2007) Is the Culture Always Right? The Dangers of Reproducing Gender Stereotypes and Inequalities in Psycho-​Social Interventions for War-​Affected Children. Available at: https://​www.child-​soldiers.org/​shop/​is-​the-​culture-​always-​right-​the-​dangers-​ of-​reproducing-​gender-​stereotypes-​and-​inequalities-​1 (Accessed: December 27, 2018). Denov, M. (2010) Child Soldiers: Sierra Leone’s Revolutionary United Front. Cambridge: Cambridge University Press. Denov, M. (2015) “Children Born of Wartime Rape: The Intergenerational Complexities of Sexual Violence and Abuse.” Ethics, Medicine and Public Health 1(1), pp. 61–​68. Denov, M., and Buccitelli, A. (2013) “Navigating Crisis and Chronicity in the Everyday: Former Child Soldiers in Urban Sierra Leone.” Stability: International Journal of Security and Development 2(2), pp. 1–​18. Denov, M., and Lakor, A.A. (2018) “Post-​War Stigma, Violence, and ‘Kony Children’: The Responsibility to Protect Children Born in Lord’s Resistance Army Captivity in Northern Uganda.” Global Responsibility to Protect 10(1–​2), pp. 217–​238. Denov, M., and Marchand, I. (2014) “‘One Cannot Take Away the Stain’: Rejection and Stigma among Former Child Soldiers in Colombia.” Peace and Conflict: Journal of Peace Psychology 20(3), pp. 227–​240. Dolan, D. (2014) Into the Mainstream: Addressing Sexual Violence Against Men and Boys in Conflict. Overseas Development Institute. Drumbl, M.A. (2012) “Child Soldiers and Clicktivism: Justice, Myths and Prevention.” Journal of Human Rights Practice 4(3), pp. 481–​485. Drumbl, M.A. (2016) “Victims Who Victimize: Transcending International Criminal Law’s Binaries.” Washington & Lee Legal Studies Research Paper Series. Available at: https://​ papers.ssrn.com/​sol3/​papers.cfm?abstract_​id=2724662 (Accessed: December 20, 2018). Dunhill, A., & Kidd, A. (2020). “How Definitions of ‘Child Soldiers’ Exclude Girls from Demobilisation Efforts. In Muraszkiewicz et al. (eds) Human Trafficking in Conflict (pp. 257–​276). Palgrave Macmillan, Cham. Frulli, M. (2000) “The Special Court for Sierra Leone: Some Preliminary Comments.” European Journal of International Law 1(4), pp. 857–​869.

370    Myriam Denov and Anaïs Cadieux Van Vliet Gumbel, A. (2007) “Escaping the Battle: From Child Soldier to Poster Boy.” The Independent, January 22. Available at: https://​www.independent.co.uk/​news/​world/​americas/​escaping-​ the-​battle-​from-​child-​soldier-​to-​poster-​boy-​433138.html (Accessed: March 7, 2019). Guthmann, E. (2007) “Once a Drugged Child Soldier, Beah Reclaims His Soul.” San Francisco Chronicle, February 27. Available at: https://​search.proquest.com/​docview/​ 411809751?accountid=12339 (Accessed: March 19, 2019). Haer, R. (2017) “The Study of Child Soldiering: Issues and Consequences for DDR Implementation.” Third World Quarterly 38(2), pp. 450–​466. Honwana, A. (2006) Child Soldiers in Africa. Philadelphia: University of Pennsylvania Press. Huynh, K., D’Costa, B., and Lee-​Koo, K. (2015) Children and Global Conflict. Cambridge: Cambridge University Press. ICC (2021, February) Dominic Ongwen declared guilty of war crimes and crimes against humanity committed in Uganda. Available at: icc-​cpi.int (Accessed June 28 2021). Keen, D. (2003) “Greedy Elites, Dwindling Resources, Alienated Youths: The Anatomy of Protracted Violence in Sierra Leone.” International Political Sociology 2, pp. 67–​94. Kellner, D. (1995) Media Culture: Cultural Studies, Identity and Politics between the Modern and the Post-​Modern. London: Routledge. Kilgour, D. (1998) “The Lost Children of Sierra Leone.” The Ottawa Citizen, May 13. Available at: https://​www.proquest.com (Accessed: March 7, 2019). Machel, G. (2001) The Impact of War on Children: A Review of Progress Since the 1996 United Nations’ Report on the Impact of Armed Conflict on Children. New York: Palgrave. Macmillan, L. (2009) “The Child Soldier in North-​South Relations.” International Political Sociology 3, pp. 36–​52. Maier, K. (1993) “Liberian Boy Soldiers Leave a Swathe of Ruin.” The Independent, March 27. Available at: https://​www.independent.co.uk/​news/​world/​libetias-​boy-​soldiers-​leave-​ a-​trail-​of-​ruin-​some-​of-​the-​fiercest-​fighters-​in-​the-​civil-​war-​are-​1500102.html (Accessed: March 7, 2019). Marten, J. (2004) Children for the Union: The War Spirit on the Northern Home Front. Chicago: Ivan R. Dee. Mazurana, D.E., McKay, S.A., Carlson, K.C., and Kasper, J.C. (2002) “Girls in Fighting Forces and Groups: Their Recruitment, Participation, Demobilization, and Reintegration.” Peace and Conflict: Journal of Peace Psychology 8(2), pp. 97–​123. McKay, S. (2006) “The Inversion of Girlhood: Girl Combatants during and after Armed Conflict.” In: Boothby, N., Wessells, M., and Strang, A. (eds.) A World Turned Upside Down: Social Ecological Approaches to Children in War Zones. Bloomfield, CT: Kumarian Press, pp. 89–​109. McKay, S., and Mazurana, D. (2004) Where Are the Girls? Girls in Fighting Forces in Northern Uganda, Sierra Leone, and Mozambique. Montreal: Rights & Democracy. McLuhan, M. (1964) Understanding Media: The Extensions of Man. Cambridge, MA: MIT Press. McMullin, J. (2011) “Reintegrating Young Combatants: Do Child-​Centered Approaches Leave Children—​and Adults—​Behind?” Third World Quarterly 43(4), pp. 743–​764. Novogrodsky, N.B. (2013) “After the Horror: Child Soldiers and the Special Court for Sierra Leone.” In: Jalloh, C.C. (ed.) The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law. Cambridge: Cambridge University Press, pp. 361–​372. O’Bryan, T. (2015) “Who Are the Real Child Soldiers?” Foreign Policy, October 28. Available at: https://​foreignpolicy.com/​2015/​10/​28/​who-​are-​the-​real-​child-​soldiers/​ (Accessed: December 16, 2018).

Child Soldiers   371 Pauls, E. (2018) Unravelling the Poster Child: The International Norm Against Child Soldering in Sierra Leone and Myanmar. PhD Thesis, London: London School of Economics. Peters, K. (2007) “From Weapons to Wheels: Young Sierra Leonean Ex-​Combatants Become Motorbike Taxi-​Riders.” Journal of Peace, Conflict and Development 10, pp. 1–​23. Plattner, D. (1984) “Protection of Children under International Law.” International Review of the Red Cross 240. Available at: https://​www.icrc.org/​eng/​resources/​documents/​article/​ other/​57jmat.htm (Accessed: September 15, 2018). Romero, J.A. (2004) “The Special Court for Sierra Leone and the Juvenile Soldier Dilemma.” Northwestern Journal of International Human Rights 2(1), pp. 2–​29. Rosen, D.M. (2019) “Child soldiers in historical and comparative perspective: creating a space for data-​driven analysis.” In Drumbl, M.A. & Barrett, J. (eds) Research Handbook on Child Soldiers. UK: Edward Elgar Publishing. Rosen, D. (2005) Armies of the Young: Child Soldiers in War and Terrorism. New Brunswick, NJ: Rutgers University Press. Shepler, S. (2005) “The Rites of the Child: Global Discourses of Youth and Reintegrating Child Soldiers in Sierra Leone.” Journal of Human Rights 4(2), 197–​211. Shevchenko, V. (2014) “Ukraine Conflict: Child Soldiers Join the Fight.” BBC News, 26 November. Available at: http://​www.bbc.com/​news/​world-​europe-​30134421 (Accessed: February 20, 2015). Simmons, A.M. (1999) “Saving Sierra Leone’s Ex-​ Child Soldiers; Africa: Nation Faces Challenge of Weaning Youths from Violence. Problem Is Worldwide.” Los Angeles Times, October 18. Singer, P.W. (2005) Children at War. New York: Pantheon Books. Skinner, E. (1999) “Child Soldiers in Africa: A Disaster for Future Families.” International Journal on World Peace 16(2), pp. 7–​22. Spitzer, H., and Twikirize, J.M. (2013) “War-​Affected Children in Northern Uganda: No Easy Path to Normality.” International Social Work 56(1), pp. 67–​79. Tassava, J. (2017) “The Portrayal of Child Soldiers in Documentaries and Hollywood Film.” Butler Journal of Undergraduate Research 3(10), pp. 158–​171. Utas, M., and Jörgel, M. (2008) “The West Side Boys: Military Navigation in the Sierra Leone Civil War.” The Journal of Modern African Studies 46(3), pp. 487–​511. Veale, A. (2003) From Child Soldier to Ex-​Fighter: Female Fighters, Demobilisation and Reintegration in Ethiopia. Pretoria: Institute for Security Studies. Wasswa, H. (1997) “Uganda’s Children Have Been Warped by War.” Kingston Whig Standard, December 20, p.14. Wessells, M. (2016) “Reintegration of Child Soldiers: The role of social identity in the recruitment and reintegration of child soldier”. In McKeown,S et al. (eds.), Understanding Peace and Confl ict Through Social Identity Theory. NY: Springer publishing. https://​ link.springer.com/​chapter/​10.1007/​978-​3-​319-​29869-​6_​7 Wessells, M. (2006) Child Soldiers: From Violence to Protection. Cambridge, MA: Harvard University Press. West, H. (2004) “Girls with Guns: Narrating the Experience of War of FRELIMO’s ‘Female Detachment’.” In: Boyden, J., and de Berry, J. (eds.) Children and Youth on the Front Line: Ethnography, Armed Conflict and Displacement. New York: Berghahn Books, pp. 105–​129. Worthen, M., Veale, A., McKay, S., and Wessells, M. (2010) “‘I Stand Like a Woman’: Empowerment and Human Rights in the Context of Community-​Based Reintegration of Girl Mothers Formerly Associated with Fighting Forces and Armed Groups.” Journal of Human Rights Practice 2(1), pp. 49–​70.

CHAPTER 16

N on-​S tate Ac tors a nd Atro cit y C ri me s Uğur Ümit Üngör 1.  Introduction Al-​Qaeda in Iraq blows up the Imam Ali mosque in Najaf, killing about 100 people. The Tamil Tigers conduct a suicide truck bomb attack against a military convoy, killing approximately 100 off-​duty sailors. The Lord’s Resistance Army (LRA) surrounds Congolese villages and churches, slaughters 620 worshipers and kidnaps 160 children. Employees of Blackwater Security Consulting shoot dozens of Iraqi civilians, killing 17. The Zetas drug cartel hijacks a number of Mexican buses and massacres 193 passengers. All of these instances of violence are examples of non-​state actors (NSAs) committing atrocities. There is a long and complex ongoing history of atrocities perpetrated by NSAs across the world. This chapter examines the involvement of non-​state actors in atrocity crimes, focusing on four exemplary cases from four different continental and national contexts, which demonstrate a broad range of atrocity crimes. The chapter conceptualizes non-​state actors and violence, examines the four cases, synthesizes their similarities and differences, and finally concludes, setting an agenda for future research. A non-​state conflict is defined by the Uppsala Conflict Data Program as “the use of armed force between two organized armed groups, neither of which is the government of a state, which results in at least 25 battle-​related deaths in a year.”1 This chapter extends this definition to include conflicts between a state and a non-​state actor, which in the literature is often described as insurgencies and counterinsurgencies. The post–​Cold War period has seen an overall increase in mass atrocity crimes committed by NSAs, including by terrorist organizations that have sought to elevate their public profile not only through military battles, but also through atrocity tactics: widespread and systematic attacks against civilians (Hoffman, 2003).

1  Uppsala Universitet, Department of Peace and Conflict Research. (n.d.) Uppsala Conflict Data Program Definitions. Available at: https://​www.pcr.uu.se/​research/​ucdp/​definitions/​ (accessed April 24, 2019).

374   Uğur Ümit Üngör The concepts “non-​state actor” and “atrocity crimes” connect to a range of phenomena that have been widely studied in history, comparative politics, anthropology, and sociology. Therefore, to avoid confusion, any discussion of NSA atrocities must engage with cognate research fields in which experts have published empirical re-​creation, developed concepts, and laid out theories that are immensely useful for understanding atrocities committed by NSAs. Two areas stand out in their relevance to the topic: civil war studies (in particular research on rebel conduct), and terrorism studies (especially critical terrorism studies). There is a very sizeable and sophisticated body of research on rebel organizations, motives, and their contributions to the dynamics of civil war, including atrocities. These works have shed light on the strategies, tactics, and uses of violence of rebel groups, as one of the main NSAs, in civil wars and other armed conflicts (Santarelli, 2013). Two major assumptions can be taken from this literature: first, there are significant differences in the forms of violence of NSAs seeking political legitimacy, and those who do not. Armed groups that are not primarily motivated by acceptance of their legitimacy in national or global politics generally have lower inhibitions for committing violence against civilians. Second, indiscriminate violence committed by insurgent groups against civilians is highly dependent on the dynamics of the conflict, for example political and territorial contestation, combat between armed factions, and civilian resistance (Kalyvas, 2006; Weinstein, 2006; Cherian Mampilly, 2012; Jo, 2015; Arjona, 2016). The vast (and expanding) field of terrorism studies also has a lot to offer us in examining NSAs, especially when it comes to ideologies, forms, and motives of violence, and the practical organization of small cells for the targeting of particular groups for atrocities (Schmid, 2011; Jackson, 2016; Chenoweth et al., 2019). This chapter will draw on civil war and terrorism studies’ areas of expertise when appropriate, but will also develop a discussion that is autonomous from the styles and cultures of particular sub-​disciplines.2

2.  Non-​state Actors and Violence Before we examine the nature and dynamic of non-​state actors, a preface on state actors is necessary, since atrocities are often seen as a matter of the state, and any examination of state actors must depart from two assumptions: first of all, the state is neither a monolithic nor an organic entity. It is reductive to think of the state as a monolith, for it is a hodgepodge of bureaucracies and actors with competing and often contradictory goals, interests, and beliefs. States consist of a complex set of institutions that operate alongside, above, under, and beyond each other, and therefore must be disaggregated so their influence and dynamics can be properly examined.3 These institutions are both formally existing physical

2 Definitions of “rebels” versus “terrorists” are largely normative and subjective exercises, often from states’ perspectives. Rather than entering those debates, this chapter suffices by maintaining parsimonious definitions of “non-​state actors” and pointing out that both literatures (on rebels and terrorists) are useful for the current discussion. 3  For discussion on the role of the state, in its various manifestations, in atrocity crimes see Chapter 18 by Christopher Mullins in this volume.

Non-State Actors and Atrocity Crimes    375 agencies, encapsulated in buildings and ministries, but also intangible social institutions that comprise networks, cells, cultures, and norms that differ substantially in scope, purpose, and resources (Migdal, 1994). Second, non-​state actors are a similarly complex phenomenon, in that the distinction state/​non-​state as a dichotomy is highly problematic. In various national and historical settings, some groups such as paramilitaries have been conceived of as: self-​sustaining anti-​ state armed groups that operate on their own behalves and motives, pro-​state actors that are fully accountable under the state’s official structures, and agents of the dual state (Fraenkel, 1941), shadowy figures and groups which operated on behalf of some autonomous deep state, parallel state, or para-​state characters that were formed beyond regular state institutions (Üngör, 2019). Although these characterizations all bear a modicum of truth, they are also incomplete, do not sufficiently cover the variation within non-​state armed groups, and reveal why a dichotomous structure between non-​state/​state actors is inadequate. NSAs are generally understood as synonymous with rebel groups, but in fact are a much broader collection of organized human activity in civil society, such as NGOs (like Greenpeace), multi-​national corporations (like Mercedes), relief agencies (like Oxfam), and organized crime groups (like the Yakuza). All of these can be seen as non-​state actors, but this chapter will focus on armed non-​state actors, since they are often (but not exclusively) responsible for atrocities. A binary categorizing of which groups exactly are and are not NSAs, or attempts at precise pinpointing of essential features or exclusive differences, are doomed to fail, and some have argued to abandon the state/​non-​state dichotomy altogether (Goodhart, 2006). Moreover, NSA is a snapshot concept: some NSAs carry out coups and revolutions and eventually even take hold of state power, thereby becoming the state, such as the Irish Republican Army (IRA) in Ireland, the Front de Libération Nationale in Algeria, the Communist Party of Cuba, the Iraqi Ba’ath Party, the Khmer Rouge, the Rwandan Patriotic Front in Rwanda, and even Islamic State of Iraq and the Levant (ISIS), considering its monopoly of violence and functional differentiation (see the next section). Finally, defining non-​state actors in relation to the state inadvertently means relating their violence to the state. In fact, no violence of non-​state actors, including atrocity crimes, can be understood without its dialectical relationship with the state. The examples examined in this chapter are no exception: the Irish Republican Army, the Zetas drug cartel, the Lord’s Resistance Army, and the Islamic State (IS) (in Iraq and Syria) cannot be understood without placing them in the broader context of, respectively, British, Mexican, Ugandan, and Iraqi/​Syrian state violence. It is more useful to bind the concept by placing two buoys in the conceptual landscape along an axis of state involvement. NSAs can then be conceived of as an umbrella concept that covers a wide continuum, distinguished by levels of state involvement. At one end of this spectrum, there are spontaneous, bottom-​up initiatives such as local vigilantes, mob groups, and self-​defense groups, and on the other end of the continuum stand the much more organized, top-​down, ideological rebel groups with clear political agendas (Tilly, 2003, pp. 27–​28). In between, we can place vigilantes, such as neighborhood patrols well known in gated communities. Moving to the other end, we would see transnational terrorist groups and mercenary militias, such as private military companies, that do not command the institutional support and manpower of territorially bound rebel groups but are nevertheless anti-​state. Next are the organized, armed rebel groups who generally enjoy popular support, entertain ideological convictions, and (aspire to) control territory in intrastate civil wars.

376   Uğur Ümit Üngör High state involvement

Low capacity

High capacity

Low state involvement

Figure 16.1  A Model for Distinguishing Non-​State Actors Created by the author

This category includes nationalist liberation movements confronting an occupying force and insurgent guerrillas that aim to weaken or destroy a ruling government. Beyond this are groups that are autonomous free agents that often operate, in different ways, for the state and therefore do not fall within the spectrum of non-​state groups.4 This continuum mostly pertains to the key issues of levels of organization, politicization, mobility, and firepower—​ all in all, their capacity. All of these groups are taken as different expressions of the same analytical category and are thus under examination in this chapter. Taken together, as shown in Figure 16.1. state involvement and capacity can be placed on two separate axes: Considering the complexity of states and non-​state actors, how can we theorize non-​state actors’ involvement in atrocity crimes? The interaction between NSAs and the state takes on various forms, such as bargaining, signaling, and deliberation. Mulaj (2010, p. 7) adds that “state and non-​state actors interact, coexist, cooperate, or conflict tacitly and implicitly.” As such, NSA violence is generally a form of interaction with the state or with the civilians that (ostensibly) support that state. This violence can take on a range of shapes, including all that is defined in the 1949 Geneva Conventions: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions

4  Since non-​state actors are most generally understood as anti-​state actors, pro-​government armed groups are not part of this NSA discussion.

Non-State Actors and Atrocity Crimes    377 without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (Article 3 Common to the 1949 Geneva Conventions)

War crimes are not the only crimes NSAs commit, and many of them have also committed crimes against humanity and genocide. Whereas crimes against humanity are a fairly low-​ threshold category of violence, genocide, as a large-​scale process that typically requires extensive coordination, control of territory, and populations, is particularly dependent on capacity. Hence, not many NSAs have been able to commit genocide.5 Virtually all armed NSAs have committed all of the previously cited categories of violence, but in different roles. Beyond capacity and legitimacy-​seeking, a third axis of tension in examining NSAs’ atrocities is political accountability to its own constituency, i.e., to what extent NSAs care about their support and have to account to people for their violent acts. Besides internal accountability to the citizens they claim to fight for, NSAs also experience external accountability, as in acknowledgement by states of their political goals and being allowed to sit at negotiation tables. NSAs usually do not command the bureaucratic governance and large-​scale military capacities of states, nor are they held to the same levels of national and international political accountability as states. These two variables are relevant for all cases of NSA atrocities, and will also be examined in the case studies that follow. These examples have been chosen for their geographic spread and variety of their atrocity crimes.

3.  The Irish Republican Army The Irish Republican Army has its roots in the Irish Republican Brotherhood of 1858, which developed into the IRA during the Irish war of independence in 1922. Its ideology is an amalgam of Irish-​nationalist and Marxist views that, in any case, was about the constitutional status of Northern Ireland. The Northern Ireland conflict, as an ethno-​religious (or sectarian) conflict, is in essence about coexistence of two collective identity groups. The conflict escalated after riots and mass mobilization in the 1970s, known euphemistically as “The Troubles,” which escalated from riots, mass protests, and acts of civil disobedience to low-​intensity civil war, residential segregation, a series of sectarian tit-​for-​tat killings, and the emergence of no-​go areas (Coogan, 1995). As militias armed and mobilized, gaining membership in loyalist paramilitary groups and committing violence for them was admired by young Protestant and Catholic boys. Having entered the paramilitary world, they rarely foresaw the consequences of their actions. Indeed, paramilitarism became the catchword of the Northern Irish conflict: both Catholic and Protestant militias, as anti-​state and pro-​ state paramilitaries, respectively, committed violence against both combatants and civilians (Bruce, 1992; English, 2003). Paramilitarism became such a prominent part of the fabric of Northern Irish society that a rich body of academic knowledge developed on the armed, secretive paramilitary groups such as the IRA, but also the loyalist Ulster Volunteer Force

5 

See Chapter 37 by Kjell Anderson on IS’ genocide of Êzidîs (Yezidis) in this handbook.

378   Uğur Ümit Üngör (UVF) and the Ulster Defence Association (UDA). Whereas the IRA targeted mostly British security personnel, the majority of UDA and UVF killings were of ordinary Catholic civilians, the vast majority having no connection with the IRA. British security forces played the double role of policing Northern Irish society as well as counterinsurgency against republicans, but likely failed in both as the IRA was never militarily or ideologically defeated, and only a political peace process succeeded (Smithey, 2011). In the Troubles, about 3,500 people were killed, roughly half of whom were civilians. The IRA was responsible for three types of violence: against (pro-​)British military targets, against Protestant civilians, and against Catholic civilians. All three vectors of violence served different purposes, and at least five strategies can be considered atrocities: assassinations of civilians, car bombings, kidnappings, torture, and forced disappearances. The IRA committed a long list of assassinations of civilians as well as combatants, including local security force personnel, high-​ranking public servants, judiciary, and politicians (Dingley, 2012, pp. 105–​128). For example, in the year 1972, the IRA killed a total of 468 people, 323 civilians, 103 army personnel, and the rest Loyalist paramilitaries (Coogan, 2002, p. 284). Some of these assassinations were selective killings of high-​profile targets: the IRA came close to assassinating Margaret Thatcher (in 1984) and John Major (in 1991) in well-​prepared, coordinated attacks against the heads of state. Other assassinations were mostly of individuals who were identified as British security personnel, Royal Ulster Constabulary members, members of Loyalist paramilitary groups UVF and UDA, but also Catholic “traitors” and “touts” who collaborated with the British government (Moloney, 2003, p. 321). Finally, there were clear, indiscriminate killings along sectarian lines. For example, on January 5, 1976, the IRA stopped a mini-​bus with ten Protestant textile workers in Kingsmill, South Armagh. The militiamen ordered everyone out, verified their sectarian identities, and all Protestants were gunned down at close range with automatic rifles. The one Catholic in the van was identified and ordered to get out of the bus and run (McKay, 2008, pp. 78–​81). Some of these assassinations had been vetted by the IRA top command, but others had been initiatives taken by local groups. The IRA committed a host of other atrocity crimes, from car bombs, to kidnapping, torture, and forced disappearances. Car bombings were perhaps its most signature terrorist tactic (Mullin, 1980; Davis, 2017, pp. 53–​60). Over the course of three decades, the IRA ran a sustained bombing campaign, detonating many bombs that injured, maimed, and killed hundreds of people, mostly civilians, across the United Kingdom. It began with bombing the Old Bailey on March 8, 1973 (one dead, 200 injured), then bombed Westminster on December 18, 1973 (60 injured), the Tower of London on July 17, 1974 (one dead, 41 injured), and, most murderously, two pubs in Birmingham on November 21, 1974 (21 dead, 182 injured). The bombing campaign continued into the 1980s and 1990s, with decreasing numbers of victims (Oppenheimer, 2008). The IRA also used kidnapping and torture as a method of gaining information, eliminating informers and opponents, and spreading terror. Many of these victims were first interrogated under torture, and then executed (Coogan, 2002, pp. 438–​463). Most bodies were either dumped in public or left to be found by police. But a small number of IRA victims, fewer than 20, were “forcibly disappeared.” One particularly infamous case occurred in December 1972, when masked IRA militants broke into an apartment in Belfast and kidnapped 38-​year old Jean McConville, who was never seen again. Close research based on documents and oral histories concluded decades later that IRA members Dolours Price and Brendan Hughes had ordered the assassination on

Non-State Actors and Atrocity Crimes    379 the accusation that she was an informer. The duo admitted to having dragged McConville out of her home, children clinging on her legs, driven her in a car across the border to the Republic, and executed her on a beach. Her corpse was not found until 2003 (Keefe, 2019). The violence of the Irish Republican Army (and its offshoots the Provisional IRA, Real IRA, and Continuity IRA), was based on a clear strategy intended to stop information leakage, provoke the UK government to heavy-​handed interventions, and demoralize Protestant activists and militants. From its inception, the IRA conceived of itself explicitly as an army involved in a just war, a legitimate uprising against British “occupation.” This meant that the IRA in principle did not follow a blanket policy of targeting civilians, but pursued mainly military and paramilitary targets, according to the legal and moral principles of warfare (Shanahan, 2008). All in all, the IRA had medium-​low capacity but fairly high accountability, mainly as a consequence of the organization’s policy of seeking legitimacy. However, even though legitimacy-​seeking was one of its key principles, it nevertheless committed atrocity crimes. IRA atrocities emanated from the dynamic of the conflict with the British government and loyalist paramilitaries. They included calculated atrocities with a clear purpose and vision, as well as local, private conflicts, and tit-​for-​tat killings with no real strategic focus or concrete results. Finally, some atrocity crimes were consequences of mistakes in planning, timing, and actions gone awry.

4.  The Zetas Drug Cartel For decades now, Mexico has been embroiled in a complex, multi-​vector armed conflict between drug cartels (armed organizations producing and distributing illegal psychotropic substances) and the Mexican state. The figures of this “drug war” are frightening: from 2006 on, the Mexican government has deployed 260,000 soldiers and 35,000 Federal Police officers, whereas the combined manpower of the cartels exceeds 100,000 men under arms. The war has killed over 150,000 people since then, with no end in sight (Beittel, 2011). All actors in these very violent conflicts have been responsible for atrocity crimes, including the various cartels: Sinaloa, Gulf, Los Zetas, Jalisco, Juárez, Tijuana, Beltrán-​Leyva, and La Familia Michoacana (Grillo, 2012). The sources of the drug cartels’ power are manifold: astounding firepower, a steady flow of recruits, and seemingly endless finances. However, most important, they influence the state at all levels of government: municipal, state, and federal. Cartels buy this influence for state officials to engage in crimes of commission and omission: for example by bribing local police officials to carry out, prevent, or disregard a murder (Pansters, 2018). Cartel violence is directed against other cartel members, civilians, and Mexican state officials, and an important distinction needs to be made between their attacks on military targets versus those on civilian targets. Among all of Mexico’s cartels, the Zetas are widely seen as the most violent, surpassed in power only by the Sinaloa Cartel (which was commanded by “El Chapo”). The Zetas used to function as the armed wing of the Gulf Cartel but split from them in 2010, sparking a war for supremacy between cartels that was exceptionally brutal, even for Mexican cartel standards (Grayson, 2012). After the breakaway, the Zetas’ influence was profound on the east coast of Mexico. Among the long list of the Zetas’ atrocity crimes are the twin San Fernando massacres of August 2010 and April 2011, and many other abductions, videotaped tortures,

380   Uğur Ümit Üngör mutilations, and decapitations. In August 2010, the Zetas intercepted a passenger bus with 72 undocumented immigrants, and they kidnapped, tortured, and executed them near the northeastern Mexican city of San Fernando. In the second massacre of early April 2011, the Zetas intercepted several buses of migrants on Mexican Federal Highway 101, kidnapping and executing 193 civilians on a ranch near San Fernando, dumping their bodies in mass graves that were later discovered by the Mexican army. Furthermore, the cartel organized gladiator fights by giving hammers, machetes, and sticks to able-​bodied men, and forcing them to fight to the death. The winners were recruited as hitmen for the cartel (Schiller, 2011). In both cases, the victims were Central American migrants who were kidnapped, imprisoned, insulted, tortured, extorted, mutilated, and finally executed, face down in a ditch. According to the Zetas’ own testimonies, the massacres resulted from the immigrants’ refusal to work for the Zetas, as well as suspicions that the migrants were reinforcements for the rival Gulf Cartel. The Zetas were (and are) responsible for a range of atrocities, including the practice of mass executions; in fact, it was the Mexican cartels that started the trend of videotaping beheadings (Grayson, 2012, p. 117). Their victims were innocent civilians or members of other cartels who had been taken captive. These atrocities were particularly brutal as their videotaping and uploading on the internet traumatized much broader sections of Mexican society than the direct social environment of the victims. They were intended to terrorize the civilian population and rival cartel members, but through this tactic of spreading gore, the Zetas also undermined the Mexican government’s promises of offering security. For example, on May 12–​13, 2012, the Zetas decapitated 49 people, whose bodies were found dumped on a highway outside the city of Monterrey. According to the Blog del Narco, there were 68 victims, whose bodies had been quartered, making the identification of bodies difficult. Later, a seven-​minute YouTube video emerged of the perpetrators disposing of the butchered bodies on the highway.6 Furthermore, the Zetas are also responsible for recruiting and training child soldiers. They have set up military training camps for 15-​to-​18-​year-​old boys, who are taught how to handle assault rifles, grenade launchers, and explosives. They also undergo rigorous physical fitness training, including martial arts and other violent skills (Grayson, 2011, pp. 185–​187). If we add to this litany of atrocity crimes the torture of their victims, and rape of kidnapped women, the Zetas can be counted among the most violent NSAs in the world. There are three main explanations of the Zetas’ policy of committing atrocity crimes. First and foremost, the cutthroat competition in the Mexican drug market offers a lot to gain, and a lot to lose. Many billions of dollars can be earned by controlling territory in order to produce and smuggle drugs like marihuana, cocaine, crystal methamphetamine, or to tax its trafficking. With many ruthless competitors, the Zetas leadership believes that only ham-​fisted methods produce results. Second, the Zetas are the only group that has significantly recruited men with military backgrounds, as they hark back to the Gulf Cartel’s recruitment of the well-​trained but underpaid elite troops of the Mexican security forces. This is reflected, for example, in the Zetas’ weapons arsenal, which includes the most modern, high-​caliber automatic rifles, highly sophisticated explosives, and even helicopters (Brands,

6 “Masacran a 68 Personas en Nuevo León.” (2012) Blog del Narco, May 12. Available at: http://​ www.blogdelnarco.com/​2012/​05/​masacran-​68-​personas-​en-​nuevo-​leon.html (Accessed: April 24, 2019).

Non-State Actors and Atrocity Crimes    381 2009). But it also shows in the Zetas’ attitudes to killing: to put it simply, their sicarios (assassins) are efficient and professional killers who have been conditioned not to hesitate in the face of the “tasks” of atrocities. Third, the deployment of pro-​government paramilitary groups significantly brutalized the conflict between the Zetas and the state, as the paramilitaries used ruthless tactics, including torture and extra-​judicial executions of cartel members and affiliated civilians of all ages and professions: small entrepreneurs, journalists, government officials, farmers, indigenous villagers, etcetera. As a response, the Zetas, too, attacked the civilian population, both as revenge against civilians who stood on the side of the Mexican government, and in order to extract more intelligence and economic services which the escalation of the war necessitated (Correa-​Cabrera, 2017, p. 141). The war between the Zetas and other cartels and the Mexican government demonstrates well how NSA violence cannot be understood in isolation from state violence. All in all, the Zetas are an NSA with very high capacity and very low accountability, and do not seek political legitimacy but merely economic and political space to perpetuate their criminal enterprises.

5.  The Lord’s Resistance Army The Lord’s Resistance Army is an NSA that launched an insurgency against the Ugandan government in 1987, and ever since has been active in the wider borderlands of Northern Uganda, including South Sudan, and the north of the Democratic Republic of the Congo. The LRA relies heavily on the Acholi ethnic group in Northern Uganda for fighters and civilian support but is not nominally an ethnic insurgency. The conflict has brought immense human and societal destruction to the entire region. According to Ugandan government estimates, within the first decade of the conflict, the death toll of the war was 300,000 people—​50 percent of the entire Acholi population (Otunnu, 1998). Atrocities were part and parcel of this very brutal conflict since the beginning of the rebellion. The LRA has committed a series of massacres against local populations and has abducted an estimated 30,000 children. In 2005, the four main leaders of the LRA were indicted by the International Criminal Court for dozens of counts of crimes against humanity and war crimes, including murder, enslavement, sexual enslavement, rape, inhumane acts of inflicting serious bodily injury and suffering, cruel treatment of civilians, intentionally directing an attack against a civilian population, and forced enlisting of children.7 The person responsible for the LRA’s atrocities is its founder and leader Joseph Kony, who was the main suspect in the ICC indictment. One Sudanese government official reported that he had heard from Kony that “those who commit the worst atrocities are the closest to God. The killing is not even a crime. God is passing judgment. God is punishing a generation” (Eichstaedt, 2013, p. 100). This generation, according to Kony, was the entire Acholi people, who needed to be “punished” because they had rejected him, a self-​proclaimed prophet sent to establish a new world order based on the Ten Commandments. By rejecting him, the Acholi had rejected God, which was a major sin that had to be responded to

7  The Prosecutor v. Joseph Kony and Vincent Otti. (Warrant of Arrest) ICC-​02/​04-​01/​05 (8 July 2005, amended September 27, 2005).

382   Uğur Ümit Üngör violently. Explanations of LRA atrocities in the news media have ranged from the nihilism of violence committed for no good reason, to the religious fanaticism of crazed madmen (Fisher, 2011). Kony is depicted in the Ugandan national media as a barbarian living in the bush, and, in any case, made “little effort in presenting a coherent and rational face to the world, or even to their Acholi brethren” (Blattman and Annan, 2010, pp. 154–​155). But others have criticized these obfuscating and orientalist approaches by arguing that the LRA leadership, in fact, has beliefs that are rational, and practices that are functional, if brutal, and serve concrete purposes (van Wyk, 2017). Atrocities are then approached as “rational decisions” and a “strategy of choice” (Allen, 2006, p. 44), and Schomerus (2007, p. 16) has argued that beyond the myths of a cabal of aging religious cult leaders abusing child soldiers, “the LRA is a well-​trained armed group answering to a very strong, centralized command.” The LRA’s atrocities include several important massacres of civilians. In one of the largest single massacres in LRA history, between 14 and 17 December 2009, the LRA carried out a large-​scale massacre in the Makombo area of Haut Uele district in northeastern DRC. In this well-​planned operation, the LRA used deception and encirclement to kill more than 321 Congolese civilians and abduct more than 250 others, including about 80 children. The LRA entered the villages in the Makombo area in two batches: a first group of Lingala-​speaking men in (Ugandan army) uniforms entered the villages, holding brief conversations with the locals and shopping at the local markets to make the locals feel at ease. Then, a second group of disheveled plainclothesmen followed behind and committed the massacre: Most of those killed were tied up before the LRA hacked them to death with machetes or crushed their skulls with axes, clubs, or heavy sticks. The victims were often deliberately taken away to be killed in the more remote forest and brush land away from village centers or roads, possibly in an attempt to cover up the crime. Some were tied to trees before their skulls were crushed with axes.8

The killing was a massive shock to an uninformed, relatively naïve community that had no stake in the Ugandan insurgency and was taken by surprise. Due to the isolated location of the area, help arrived too little, too late, and the perpetrators escaped without ever exchanging fire with any army.9 The LRA’s hallmark atrocity has always been their crimes against children: the kidnapping of boys and girls, sexual slavery and forced marriage of girls, and recruitment of boys as child soldiers. Ehrenreich (1998, pp. 80–​81) argued that “what makes this conflict unusually vicious is that the LRA rebels target young children for abduction, virtual enslavement, and even death—​all part of their campaign of civil terror and as a principal means of military recruitment.” Through the media and popular culture, the LRA became synonymous with child soldiering, and this was certainly justified. Research on abduction demonstrated first that the number of abductions is likely to be over 60,000, and second, that most

8  Human Rights Watch. (2010) Trail of Death: LRA Atrocities in Northeastern Congo. New York: Human Rights Watch (HRW 2010), p. 18. 9  HRW 2010, p. 18.

Non-State Actors and Atrocity Crimes    383 abductees were adolescents between 12 and 16, and not younger boys (Blattman and Annan, 2010). This suggests that, whereas abduction and child soldiering were fairly widespread, the worst stories of atrocities were also fairly rare, such as the infamous stories of killing one’s own parents, siblings, and friends as acts of hazing and initiation. It was much more common that the LRA killed the children’s parents and dragged the children off.10 Other LRA atrocities should not be forgotten either, such as land mines placed near water sources or along footpaths, deliberately to hurt civilians. A final example of an atrocity crime is the desecration of corpses, including the chopping up of bodies or the boiling of people. In October 2002, a group of LRA fighters pursued an LRA defector to his hometown and killed 28 civilians to force civilian compliance and cooperation. Some of the corpses were chopped up and boiled in pots in the middle of the road. Even a former LRA member opposed the cooking of human bodies “as though a fish” (Dubal, 2018, pp. 79–​80). While this violence appears unnecessary, LRA atrocities can be explained like many other atrocities and were the products of decisions made by rational actors. Eichstaedt (2013, p. 102) asked high-​ranking LRA officer Francis Okwonga Alero about the atrocities, and Alero explained that the cutting off of hands, lips, and ears was “a soldier’s recognized duty.” But it was more a form of messaging to the Ugandan government and to the local population not to resist the LRA or collaborate with the Ugandan army. Alero continued: “To show [that] making alarm is bad, they cut off arms and lips so that the next time, they will not make [an] alarm. . . . Cutting off the hands comes from the use of bow and arrow and spears.” These atrocities were functional as they rendered people incapable of using weapons, sent unmistakable messages to state and society, and spread fear of the LRA, which increased compliance. The atrocities were also a snapshot in the wider dynamic of the violence between the Ugandan army and the LRA. For example, the LRA attacks on numerous Congolese villages from December 2008 to January 2009 killed over 865 civilians and was a retaliation for the Ugandan army’s botched military campaign, “Operation Lightning Thunder,” against the LRA’s bases in northeastern Congo. These atrocities served the LRA’s strategic purpose of using fear to control civilians’ behavior in Northern Uganda (Van Acker, 2004; Vinci, 2005). The legitimacy question relates to the LRA in a contradictory way. Unlike other NSAs like the Irish Republican Army or the Kurdistan Workers’ Party (PKK), the LRA did not have a “political wing” that pursued domestic and international legitimacy through conventional politics. However, LRA manifestos have formulated a clear political agenda: the restoration of multi-​party politics and free and fair elections, the introduction of constitutional federalism, the need for better socioeconomic balance in Uganda, and an end to corruption. In these manifestos, the LRA singled out Museveni in particular, censuring him for the authoritarian concentration of power in his hands (Finnström, 2008, pp. 99–​130). All in all, on the capacity-​accountability axis, the LRA has overall commanded fairly high capacity and very little accountability.

10  Human Rights Watch (1997) The Scars of Death: Children Abducted by the Lord’s Resistance Army in Uganda. New York: Human Rights Watch.

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6.  IS The Islamic State grew out of the combination of global jihadism and the power vacuum that the U.S. invasion of Iraq generated in 2003. The ensuing erosion of the Iraqi state, dispersion of the Iraqi army, and marginalization of Sunni Iraqis was capitalized on by al-​ Qaeda in Iraq, which in time transformed into ISI, then ISIS, and later Islamic State. Since it was established in 2006 in Iraq, it committed a range of atrocities, first in the Iraqi civil war of 2006–​2008, and then in Syria, which it invaded in the spring of 2013, and then again in Iraq, where it conquered most of central and northwestern Iraq (Moubayed, 2015; Weiss and Hassan, 2016). Throughout these periods and areas of rule, IS has imposed a strict Islamist agenda and committed different forms of violence against civilians. But it has also captured global attention by committing spectacular terrorist attacks on African, American, Asian, European, and Middle Eastern targets. For this reason, in the popular representation, IS is often reduced to a purely transnational terrorist organization attracting foreign fighters, and its analysis suffers from an over-​focus on ideology (Cockburn, 2015; Wood, 2015). But more detailed studies raise a series of questions, including the dynamics of its territorial control, logic of violence, and transformation of societal relations as an NSA (Atwan, 2015; Byman, 2015). A key, unexplored aspect of IS rule is the function and logic of its atrocities, because where it seized power, it has committed widespread violence against civilians. Indeed, IS atrocities are varied, brutal, and large-​scale: individual and mass executions of dissidents, gay people, atheists, journalists, and prisoners of war, massacres of civilians, recruitment of child soldiers, vandalism, forced conversion, and sexual violence. First and foremost, IS’ main form of atrocity is the mass murder of entire categories of civilians, including prisoners of war regardless of origin; professionals such as doctors, activists, technicians, and journalists who refuse to bow to them; and complete ethnic and religious minorities such as Shiites, Yezidis, Kakai’s, Shabaks, Sabians, Kurds, and Turkmens. The Camp Speicher massacre is a good example: on June 12, 2014, IS executed about 1,700 Shia cadets in an attack on the military base Camp Speicher near Tikrit. IS fighters overran the base, separated the non-​Sunni soldiers from others, and murdered them in a series of mass executions. Some were laid in trenches or open fields and sprayed with bullets from AK-​47s, others were executed one by one, assembly-​line style, on the banks of the Tigris and dumped in the river. IS then released a propaganda video, entitled Upon the Prophetic Methodology, which depicted the capture of the army base and showed the executions in graphic detail (Anderson, 2017, p. 143). One of the survivors was Ali Hussein Kadhim, a 23-​year-​old Shi’ite, who was captured and lined up with others to be executed. He heard a bullet whizz by his ear, dropped himself in the mass grave, and waited until nightfall before he escaped in an incredible survival story (Arango, 2014). This was only one of IS’ many massacres against Shi’ites: from the car bombs targeting Shia neighborhoods in Baghdad to the suicide attacks on Shia mosques, these atrocities are distinguished by their group-​ selective and murderous nature. IS atrocities consist of more than “mere” killings, and some of its violence pursues the destruction of abstract identities. Its policies against Yezidis are the clearest examples of the comprehensively genocidal nature of their atrocities, which consist of massacres and executions, but also include the recruitment of child soldiers; forced conversion to Islam;

Non-State Actors and Atrocity Crimes    385 large-​scale, systematic sexual violence; and mass destruction of cultural and religious heritage (Gerges, 2016). Barely two months after the Speicher massacre, on Friday, August 1, 2014, the Islamic State embarked on a major military offensive in northern Iraq. Within ten days, the extremist movement had conquered a vast new territory, including Sinjar and Qaraqosh, where mostly Yezidis and Christians lived. Anyone who could not flee fell into the hands of IS, which began to ruthlessly persecute these minorities. Christians were given three choices as “People of the Book” (ahl al-​kitaab): convert to Sunni Islam, pay special taxes to continue living under IS rule, or die. The Yezidis, followers of a non-​Muslim ancient religion, were not given these options and were much more profoundly attacked: IS massively murdered the men, sold the women as (sex) slaves, and recruited the orphans as child soldiers (Moradi and Anderson, 2016; Dinç, 2017). For example, in the village of Kocho, IS drove all men, including the Yezidi sheikh, together in the village school. An IS militant then loudly announced that they had to convert to Islam. The sheikh refused, so IS took their money, cell phones, and valuables, and took the men, packed in pick-​up trucks, to the desert. There, along ditches, IS executioners massacred the Yezidis in groups of 40. Khalid Murad 32, was riddled with bullets, but he survived by pretending to be dead. After waiting among the corpses for a few hours, he crawled out from under them and walked toward Mount Sinjar, where the Kurdish YPG militia brought him to the hospital. His seven brothers were all dead (Kingery, 2018). Then, in a second atrocity enabled by an inimical, inimitable exegesis of the Quran, IS stated that it was legitimate to marry off Yezidi women against their will and sell them as “slaves” (sabaya). Video clips appeared on the internet, showing IS members laughingly selling Yezidi girls on markets in an unvarnished rape campaign, aimed to provide free sex to its own warriors, break the morale of affected communities, and enforce accommodation through fear. Until IS’ 2019 territorial defeat in the Syrian border town of Baghuz, many hundreds of women lived as sex slaves in the IS territory (Otten, 2017a). A third atrocity was forced conversion of the Yezidis. In the immediate aftermath of the Sinjar attack, IS published a typically edited and choreographed propaganda video in which a group of terrified Yezidi men publicly distance themselves from their ancient religion and convert to Islam. A fourth atrocity crime was the extensive destruction of Yezidi (and other) heritage and material culture. IS systematically blew up all Yezidi places of worship under the guise of “cleansing the earth from the temples of the unbelievers” (Otten, 2017b).11 This demolition was intended to erase all traces of Yezidi identity, including its memory. IS’ assault on the Yezidis is instructive and stands out, even from other IS atrocities. The combination of mass executions, forced conversion, sexual violence, and mass vandalism to eradicate a vulnerable religious minority was a systematic, pre-​planned campaign that IS ideologically openly justified and logistically thoroughly organized. Second, the destruction focused on the abstract group identity of Yezidis, regardless of their behavior or political preferences. It was therefore almost immediately recognized as genocide by the United States Holocaust Memorial Museum in Washington, D.C., a large number of genocide scholars, and a UN Commission of Inquiry. It is appropriate to end this examination of four NSAs with IS, because IS blurs the distinctions between non-​state and state. Domestically, it could have been considered a state because of its very stable monopoly of 11 

Interview conducted by the author in the Yezidi village of Aknalich, Armenia, May 15, 2019.

386   Uğur Ümit Üngör violence, surprising levels of internal legitimacy, and functional differentiation with many “ministries” and offices. Internationally, it could not be considered a state because it was an unrecognized entity and never sought or enjoyed international legitimacy: except for brief recognition by the Taliban, it never opened an embassy anywhere nor was welcomed into the United Nations. Finally, IS’ genocide of Yezidis is one of the few atrocity crimes by NSAs in which the perpetrating NSA’s capacity was at maximum and its accountability at minimum. No other NSA controlled a large swath of territory and a population of millions as IS did, and therefore no other NSA had the capacity to commit genocide on the scale that IS did.

7.  Causes and Forms of Atrocity Crimes All of the previously mentioned NSAs were and are responsible for a range of atrocity crimes: assassinating and massacring civilians, employing child soldiers, using sexual violence, and committing genocide. Atrocity crimes by NSAs can be compared along many axes and themes, but this section is limited to three major analytical frameworks of comparison: forms of NSA atrocity crimes, causes of NSA atrocity crimes, and the relationship between states and NSAs. First and foremost, atrocity crime is a very broad legal and analytical category, which contains a range of different forms of violence. A conceptual distinction needs to be drawn between lethal violence (assassinating, executing, massacring, etc.) and non-​lethal violence (injuring, torturing, sexual violence, etc.) because of their different impact on society and in death tolls. All of the discussed NSAs have committed both forms of violence, but at different times and against different targets. All have committed massacres against (enemy) civilians, either through mass executions or bombings, and whether these atrocities were committed in the Mexican plains, the Ugandan jungle, Northern Irish cities, or the Iraqi desert, they share major similarities, such as the dynamic of conflict escalation, ethnic and religious sectarianism, situational power differences, and intra-​NSA competition. There are also key differences in the scope of atrocity crimes, and three of them stand out: first, it matters a lot whether an NSA controls territory or not. The main difference between underground rebel insurgencies like the IRA and those like the LRA and IS that openly control territories and populations is the difference in the extraction, production, and import of resources, such as weapons and fuel. The control of territory and population is an enormous boost for NSAs’ capacities, a major, influential factor in their conduct. A second difference in this comparison is the distinct historical development in the coercive capacities of NSAs. Increasingly sophisticated weapons and communications technology has empowered current-​day NSAs in ways that were unimaginable in the 1970s. Whereas the IRA had, at best, car bombs at its disposal in the 1970s, IS was rumored in 2016 to develop the capacity to use chemical weapons (Warrick, 2019). If an NSA has access to surface-​to-​surface missiles, they are able to commit long-​distance massacres, a type of violence distinct from intimate, face-​to-​face massacres. Finally, the political successes of some NSAs, such as the Palestinian Liberation Organization, the African National Congress, and the Irish Republican Army, in using violence to achieve political objectives seems to have opened up space for new NSAs to target civilians as well.

Non-State Actors and Atrocity Crimes    387 What are the causes of NSA atrocity crimes? The literature on violence against civilians during civil wars is increasingly broad and varied, and it includes state violence in addition to non-​state actors’ violence. Most studies explain the causes of violence against civilians as serving to enhance or reduce civilian collaboration, to extract or destroy resources, and/​or to project or undermine control (Hultman, 2014). If we leave out state violence and focus on non-​state actors, first and foremost, it is important to see their atrocity crimes not as isolated incidents, but snapshots emanating from the internal developments of these organizations, as well as the dynamic of their asymmetrical conflicts with the state. From that perspective, targeting civilians is widely perceived by combatant groups as serving strategic purposes. However, both broad quantitative research and deep ethnographic and historic case research demonstrates that civilian victimization seems to be a consequence of victory (or defeat) more than a cause (Downes, 2008). A second major cause of NSA atrocity crimes is when they seek but do not receive legitimacy, domestically and internationally. If armed NSAs are allowed to enter the political sphere, they “will then have less incentive to resort to violence unnecessarily” (Jo, 2015, p. 93). This necessitates the armed NSA to have a political wing that is a) interested in complying with international norms, and b) has effective control of the military wing of the movement. A sustained denial of legitimacy can push NSAs into more radical action, including atrocities against civilians. An NSA’s balance in its capacity-​accountability axis is equally relevant: the higher its capacity and the lower its accountability, the higher the likelihood of atrocities. The IRA’s low-​capacity and high-​accountability combination led to fewer atrocities, whereas IS, the LRA, and the Zetas enjoyed high capacity and low accountability, leading to more and worse atrocities. A third and final point is about the distinction between non-​state actor and state actors. NSAs entertain two types of relationships with the state: an antagonistic one with the incumbent state they are fighting, and a strategic or cordial one with a patron state they feel allied to and receive external support from. In Mexico, for example, relations between the drug cartels and the Mexican state are rooted in decades of animosity, which structures the violence the cartels are willing and able to inflict upon state officials. Yet the levels of violence differ from government to government and from state to state: whereas the Zetas entertained a modus vivendi with the government under President Vicente Fox, his successor, President Felipe Calderón, launched a drug war (under U.S. pressure) that would dramatically escalate the violence and usher in an era of cartel atrocities. Then again, under the following government of Enrique Peña Nieto, cartels colluded with, infiltrated, and intimidated the government in various ways and at various levels, which influenced the course of atrocities (Hernández, 2013). Second, some if not all NSAs entertain relationships with one or more states other than the one they are fighting. These can be foreign sponsors that offer them covert financial, military, and logistical support, or those that overtly treat them as veritable proxies (San-​Akca, 2017). The examples in this chapter are no exception: the LRA was supported by the Sudanese government of Omar al-​ Bashir, which allowed the LRA to build bases in South Sudan in exchange for supporting Khartoum’s efforts to crush the South Sudan rebellion (Prunier, 2004). To what extent the IRA was supported by the Republic of Ireland remains a mystery, but there were a number of individual examples of collusion and support (Hayes & McAllister, 2005). The Northern Ireland conflict could even be seen as a “double proxy war,” with elements in the Republic of Ireland supporting the IRA, and some British government officials colluding with the Loyalist paramilitaries. Finally, a hotly debated issue is the way whether, and if so how,

388   Uğur Ümit Üngör IS ever enjoyed support from Middle Eastern states (Gerges, 2016: 286). Only a comprehensive, profound research project based on IS’ own primary sources and key interviews would yield insights into it; at the time of writing, everything else remains speculation. All in all, we can argue that those NSAs that rely on foreign sponsors with human rights policies seem to be more likely to comply with legal and moral norms, and refrain from atrocities against civilians (Jo, 2015).

8.  Conclusion This chapter has looked at atrocities by non-​state actors. The main paradox of NSA atrocities is that on the one hand, they are the weaker party, but on the other hand, they commit horrific atrocities as the “weapons of the weak” (Scott, 1987). Violent NSAs are often the party of lower capacity in an asymmetric conflict and therefore invest heavily in mobilizing the means to pursue their strategies, including human and financial capital, arms, and logistical support. It is relatively easy for NSAs to commit atrocities. So much so, that even individuals with a decent amount of planning can commit very serious atrocities, as the mass shootings of African American churches and synagogues in the United States, and of the mosques in New Zealand demonstrate. Nevertheless, historically, theoretically, and empirically, NSA atrocities continue to pale in comparison with state violence. Regardless of the disproportionate attention that “terrorism” receives in (social) media and public discussions, it remains a fact that on an average day in the government-​orchestrated 1994 Rwandan Genocide (about 8,800 deaths), three times more people were killed than in all of the September 11, 2001 attacks by an NSA (2,996 deaths). In other words, as violent and destructive as NSA atrocities can be, only to the extent that they have state-​like capacities can they have the potential to cause as much damage and impact. Downes and Cochran (2010, p. 23) argue: “Despite a fruitful literature that has arisen in the last decade to explain the causes of civilian targeting, the effectiveness of civilian victimization for achieving belligerents’ war objectives remains an open question.” Although progress was made in addressing this question, nearly a decade after, there are still many open questions, partly because old questions on existing NSAs have lingered, and partly because new NSAs (and questions) have emerged. New directions of scholarship on NSA atrocities must probe into two transformations in this research landscape. First, it should examine how NSAs go from non-​violent politics to violent contestation, in other words, why NSAs take up arms. NSAs are human groups with pasts and futures, and snapshots of atrocities can only be understood by examining their entire “biography.” A second, corollary question is why NSAs engaged in armed struggle turn to atrocities, in other words, why they target civilians. Consolidating case studies in comparative, synthetic research requires both quantitative and qualitative research on NSA involvement in violent conflict. Both questions deserve more attention, as they relate to the broader question of the distinctions between legitimate violence between armed groups (war), and illegitimate violence such as atrocities (massacres and genocide). These two approaches will further understandings of NSA atrocities and solidify their integration into political violence research more generally.

Non-State Actors and Atrocity Crimes    389

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Non-State Actors and Atrocity Crimes    391 Otten, C. (2017b) With Ash on Their Faces: Yezidi Women and the Islamic State. New York: OR Books. Otunnu, O. (1998) “The Path to Genocide in Northern Uganda.” Refuge 17(3), pp. 4–​13. Pansters, W. (2018) “Drug Trafficking, the Informal Order, and Caciques: Reflections on the Crime-​Governance Nexus in Mexico.” Global Crime 19(3–​4), pp. 315–​338. Prunier, G. (2004) “Rebel Movements and Proxy Warfare: Uganda, Sudan and the Congo (1986–​99).” African Affairs 103(412), pp. 359–​383. San-​Akca, B. (2017) States in Disguise: Causes of State Support for Rebel Groups. Oxford: Oxford University Press. Santarelli, N.C. (2013) “Nonstate Actors.” Oxford Bibliographies in International Law. Available at: https://​www.oxfordbibliographies.com/​view/​document/​obo-​9780199796953/​obo-​ 9780199796953-​0085.xml (Accessed: June 23, 2019). Schiller, D. (2011) “Mexican Crook: Gangsters Arrange Fights to Death for Entertainment.” Houston Chronicle, June 11, at: https://​www.chron.com/​news/​nation-​world/​article/​ Mexican-​crook-​Gangsters-​arrange-​fights-​to-​death-​1692716.php (Accessed: April 24, 2019). Schmid, A. (2011) The Routledge Handbook of Terrorism Research. London: Routledge. Schomerus, M. (2007) The Lord’s Resistance Army in Sudan: A History and Overview. Geneva: Small Arms Survey. Scott, J. (1987) Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven, CT: Yale University Press. Shanahan, T. (2008) Provisional Irish Republican Army and the Morality of Terrorism. Edinburgh: Edinburgh University Press. Smithey, L. (2011) Unionists, Loyalists, and Conflict Transformation in Northern Ireland. Oxford: Oxford University Press. Tilly, C. (2003) The Politics of Collective Violence. Cambridge: Cambridge University Press. Üngör, U.Ü. (2020) Paramilitarism: Mass Violence in the Shadow of the State. Oxford: Oxford University Press. Van Acker, F. (2004) “Uganda and the Lord’s Resistance Army: The New Order No One Ordered.” African Affairs 103(412), pp. 335–​357. van Wyk, J. (2017) “Joseph Kony and the Lord’s Resistance Army.” In: Varin, C., and Abubakar, D. (eds.) Violent Non-​State Actors in Africa: Terrorists, Rebels and Warlords. New York: Springer, pp. 225–​250. Vinci, A. (2005) “The Strategic Use of Fear by the Lord’s Resistance Army.” Small Wars & Insurgencies 16(3), pp. 360–​381. Warrick, J. (2019) “Exclusive: Iraqi Scientist Says He Helped ISIS Make Chemical Weapons.” The Washington Post, January 21. Available at: https://​www.washingtonpost.com/​world/​ national-​security/​exclusive-​iraqi-​scientist-​says-​he-​helped-​isis-​make-​chemical-​weapons/​ 2019/​01/​21/​617cb8f0-​0d35-​11e9-​831f-​3aa2c2be4cbd_​story.html (Accessed: April 24, 2019). Weinstein, J. (2006) Inside Rebellion: The Politics of Insurgent Violence. Cambridge: Cambridge University Press. Weiss, M., and Hassan, H. (2016) ISIS: Inside the Army of Terror. Updated Edition. New York: Simon & Schuster. Wood, G. (2015) “What ISIS Really Wants.” The Atlantic, March. Available at: www.theatlantic.com/​magazine/​archive/​2015/​03/​what-​isis-​really-​wants/​384980 (Accessed: April 24, 2019).

CHAPTER 17

The Involv e me nt of C orp orat i ons i n Atro cit y C ri me s Wim Huisman, Susanne Karstedt, and Annika van Baar 1.  Introduction The last decades of the 20th century were defined by a new phase of globalization with an unprecedented reach and role of multi-​national corporations. The activities of multinational corporations considerably increased, and they operated in more countries around the world, including challenging sociopolitical contexts like conflict and war zones, weak states, or authoritarian and often corrupt regimes (Ruggie, 2013, p. 33). Neither governments nor companies were prepared for the challenges of the emerging international human rights regime that gained momentum at the same time. With the beginning of the 1990s, a process of proliferation and consolidation of individual accountability for atrocity crimes took place, culminating in the Rome Statute1 and the establishment of the International Criminal Court in 2002. Kathryn Sikkink (2011) has termed this process a “justice cascade” involving international institutions like the international criminal tribunals for the former Yugoslavia and Rwanda, as well as regional courts like the Inter-​American Court of Human Rights and national courts in Latin America. The global spread of truth (and reconciliation) commissions was another decisive element of the justice cascade (Olsen et al., 2010). As part of the justice cascade, business and human rights “became an increasingly prominent feature on the international agenda in the 1990s” as the Special Representative of the Secretary-​General on the issue of human rights and transnational corporations, John Ruggie, (2013, p. XXV) noted. While business activities became increasingly global, and human rights violations apparent, regulation of businesses remained almost exclusively at

1 

Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute).

394    Wim Huisman, Susanne Karstedt, and Annika van Baar the national level, lacking focus on human rights violations. Governments were unable or unwilling to force corporations into compliance with, and observance of, human rights. Multi-​national corporations lacked awareness and instruments needed “to manage the risks of their causing or contributing to human rights harm through their own activities and business relationships” (Ruggie, 2013, p. XXVI), and they did not even take notice of the costs accrued in operating in challenging environments and evolving conflicts (Franks et al., 2014). After the language of human rights emerged as a powerful narrative in the wake of the justice cascade, advocacy groups and non-governmental organizations (NGOs), often together with local communities, organized campaigns against multi-​national corporations with the aim to resist harmful impacts of “big businesses.” As a result of these developments, the United Nations set up the UN Global Compact, the first global corporate social responsibility initiative. The Global Compact provides voluntary sustainability norms for businesses, some of which refer to human rights. Since then, a proliferation of “soft law norms,” that is, agreements, protocols, and voluntary adoption of regulations, has taken place involving international organizations like the UN, the Organization for Economic Co-​operation and Development (OECD), states, and financial and industry associations as well as large multi-​national corporations themselves (for an overview, see Ruggie, 2013; Bernaz, 2016). While not being legally binding, these norms are at an embryonic stage of producing “hard” law, such as international treaties and state law (Cerone, 2016, p. 20). As a case in point, a binding treaty on business and human rights is currently being proposed by the UN Human Rights Council (Blichitz, 2016). The accountability norms consolidated within the justice cascade concerned those crimes that qualified as atrocity crimes—​genocide, crimes against humanity, and war crimes—​ which constitute the most serious and most harmful of human rights violations that affect individual victims as well as communities, regions, or nation states. Consequently, multi-​ national corporations were not only pushed to comply with human rights obligations, but also increasingly accused of involvement in atrocity crimes, be it directly or in complicity with state and non-​state actors. Proceedings were started in domestic as well as international courts, and both criminal as well as civil procedures were launched across borders (e.g., for genocide Kelly, 2016). A number of recent cases brought forward at international and national courts illustrate the dynamics of the justice cascade. These include a criminal complaint filed at the International Criminal Court (ICC) against the Spanish company Ferrovial for alleged crimes against humanity committed in the operation of Australia’s off-​shore detention center at the island of Nauru (Doherty and Kingsley, 2016); a civil suit launched against Shell in The Netherlands by the widows of men who were hanged by Nigeria’s military government in the 1990s, accusing Shell of complicity in their husbands’ executions (Ratcliffe, 2017); and a lawsuit filed in Paris against the French bank BNP Paribas, alleging complicity in the Rwandan Genocide.2 Other instances of recent involvement of corporations in genocide include China’s state oil company (China National Petroleum Corporation) in Darfur, and German chemical corporations in the Kurdish Genocide in Iraq (Kelly, 2016).

2  Reuters (2017) NGOs file suit alleging BNP Paribas complicity in Rwandan Genocide. Available at: https://​www.reuters.com/​article/​rwanda-​bnp-​paribas-​lawsuit/​ngos-​file-​suit-​alleging-​bnp-​paribas-​ complicity-​in-​rwandan-​genocide-​idUSL8N1JQ28V (Accessed: February 3, 2019).

The Involvement of Corporations in Atrocity Crimes    395 The history of corporate involvement in atrocity crimes starts with the invention and foundation of modern multi-​national corporations during the period of European colonization in the 17th century. Both the Dutch East India Company and the British East India Company were involved in mass atrocities and massacres amounting to genocide avant la lettre in the 1700s. These atrocities included mass killings, burning down villages, looting, and deporting the population into slavery (Robins, 2002; Kelly, 2016, pp. 17–​26). However, the starting point of judicial accountability for corporations involved in atrocity crimes did not arrive until the 20th century. At the Nuremberg Trials, held between 1945 and 1949 by the Allied powers in the aftermath of the International Military Tribunal, corporate actors were charged with atrocity crimes before a criminal court (Bush, 2009; Karstedt, 2015a; Kelly, 2016). The leaders of large German corporations stood trial for their involvement in and complicity with the crimes of the Nazi regime during World War II, including war crimes and crimes against humanity. The program of the Allies to put the leadership of Nazi Germany on trial was unprecedented (and has not been repeated since). The trials included party, political, military, and governmental, as well as corporate, leadership (Karstedt, 2015a.b). Representatives of large corporations and industrial leaders, as well as owners and managers of smaller businesses directly involved in the Holocaust, were convicted of, among other charges, forced labor, crimes committed by conducting medical experiments under their auspices, and looting of property in occupied countries. Defendants included representatives of large international corporations like IG Farben, the armament industry, and a member of the board of Dresdner Bank. The Nuremberg Trials were the most visible part of the efforts to hold corporate elites accountable; smaller subsidiaries or specialized businesses like those which had delivered Zyklon B to the death camps were tried in separate courts by the Allies, or in national courts in Germany after 1949 (Ebbinghaus, 1999; Hayes, 2004). Notwithstanding this forceful start, it took two decades until the international community was alerted to the role of corporations in sustaining the Apartheid regime of South Africa and supporting atrocity crimes against the population. It took another 30 years until these crimes came under scrutiny at the Truth and Reconciliation Commission’s hearings.3 Against the distant backdrop of the Nuremberg prosecutions of corporate involvement in atrocity crimes, the justice cascade gained momentum and started to engulf corporations and their leaders. The role of corporations in the conflicts in Latin America and their complicity with authoritarian regimes in committing atrocity crimes there came to light as these countries embarked on processes of transitional justice during the 1980 and 1990s (see Michalowski, 2013). These included Mercedes Benz (DaimlerChrysler) in Argentina (De Haan, 2020) and Nestlé in Colombia (Kaleck, 2013), as well as financial institutions that propped up the Argentinian dictatorship (Bohoslavsky and Opgenhaffen, 2010). Subsequently, in the context of the “African World War” (1998–​2003), a UN Panel of Experts established by the UN Security Council found that 157 corporations were directly or indirectly involved in illegal exploitation of natural resources.4 The proceeds of these

3 

South African Truth and Reconciliation Commission (1998) Report. Cape Town: Juta & CO Ltd. Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo (23 October 2003) UN Doc S/​2003/​ 1027. 4  UNSC

396    Wim Huisman, Susanne Karstedt, and Annika van Baar illegally exploited resources were used by the different parties to the conflict to purchase arms and enabled, as such, the continuation of war, and propped up perpetrators of war crimes and crimes against humanity on all sides of the conflict in the Democratic Republic of the Congo (DRC). This chapter will broadly explore involvement of corporations in atrocity crimes. Involvement means that a link between the company, its activities, and the commission of atrocity crimes can be identified. We first focus on the defining features of corporate involvement in atrocity crimes, and then provide an empirical overview of involvement of corporations in different types of crimes since 1945. The overview, as well as the next section on “crime scripts” that details the processes and mechanisms of such involvement, uses a data set of cases collected by the authors encompassing 105 cases of corporate involvement in atrocity crimes since World War II (Huisman et al., 2020; TransCorpHRV (Transnational Corporations and Human Right Violations)). An in-​depth analysis of two historical cases from Germany and the DRC contrasts involvement in crimes by an authoritarian regime with involvement in crimes in a fragile state and juxtaposes the involvement of a medium-​ sized local business in the Holocaust with the actions of the multi-​national corporation Anglo-​Gold Ashanti in the DRC.

2.  Business and Atrocity Crimes: Charting the Global Landscape 2.1. Collective actors in a collective enterprise Atrocity crimes are defined by their collective nature: being committed from within and by collectivities and targeting collectivities. Perpetrators are part of a group or an organization and act as unified members, be it an army, a police force, a paramilitary group, another entity of a state bureaucracy, or a business corporation (Karstedt, 2014). Atrocity crimes are collective actions, that is, the crimes are collectively and collaboratively committed by groups of actors, and with the knowledge and backing of a group or an organization. Governments as state actors and non-​state actors “order, encourage, favour or tolerate” the commission of these crimes (van Sliedregt, 2012, p. 28), and the organizational context provides the motivation, opportunity, and means to commit them.5 Victims are targeted as members of a group, or even collectively when they are deported, killed, dispossessed, and displaced, or subjected to the destruction of their livelihoods. This applies to the individual union member who was disappeared during the Argentinian dictatorship as well as to the ethnic group that is targeted in mass atrocities and genocidal events. The collective nature of the crimes and the fact that perpetrators act as part of and from within organizations make the involvement of corporations in atrocity crimes the most “intransigent legal problem” for international and national criminal justice (Brants, 2007, 5  For a discussion of the involvement of non-​state actors in atrocity crimes see Chapter 16 by Uğur Ümit Üngör in this volume. For a discussion of the role of the state in atrocity crimes see Chapter 18 by Christopher Mullins.

The Involvement of Corporations in Atrocity Crimes    397 p. 312). In a sense, the Nuremberg Trials were designed and conducted to address these crimes as collective wrongdoing. Both crimes and criminals were collectivized, and this laid the foundation for the collective criminality theory first proposed by Murray C. Bernays (Smith, 1982, pp. 33–​37; van Sliedregt, 2012). The theory shaped the Nuremberg Trials in two important ways. First, the defendants represented the different organizations that had orchestrated the murderous aims of the Nazi regime. The grouping of defendants in cases represented the connections, collaborations, and networks among the Schutzstaffel (SS), the government bureaucracy, and the economy. Exemplary of the grouping of crimes and perpetrators according to their collaborative networks was the fact that the only member of the leading German banks charged in the Nuremberg Trials was included in the “Ministries Case” against the Foreign Office (Karstedt, 2015b). Second, the theory opened the route toward criminalizing organizations that had been implicated in the atrocities, like the SS, the Gestapo, and the High Command of the German Armed Forces (Jørgensen, 2009; Karstedt, 2014). In contemporary international criminal justice, concepts like “superior responsibility” and “joint criminal enterprise” have been further developed and used by tribunals and courts in order to address the collective nature of atrocity crimes (van Sliedregt, 2009, 2012; Jørgensen, 2009). Most recently, the Malabo Protocol, which provides the foundational statutes for the future African Court of Justice and Human Rights, established a corporate criminal liability for atrocity crimes and also for crimes against the environment and corruption (van Sliedregt, 2019). Adopted by the African Union in 2014, this Protocol thus opens the door to the prosecution of corporations which have been involved in wars and conflicts in Africa or have been complicit in other gross human rights violations on the continent. The Nuremberg Trials had uncovered the collaboration among corporations, the state, and its organizations in the commission of genocide and other atrocity crimes. Continuing today, contemporary corporate involvement in atrocity crimes is typically state-​corporate crime, as most atrocity crimes are committed by state actors or their subsidiaries (Michalowski and Kramer, 2006; Karstedt, 2014; van Baar, 2019). State-​corporate crime occurs on a continuum of state involvement and corporate complicity in state-​organized criminal activity. Kauzlarich et al.’s (2003, p. 247) “continuum of state complicity” is based on two dimensions: (i) the actual commission of harms and crimes; and (ii) the extent to which illegal and criminal action is explicit or implicit. Their continuum includes four distinct types of state-​corporate interaction in crimes from “omission–​implicit” to “commission–​ explicit.” While implicit omission generates harmful, but not illegal, outcomes, the other three categories include illegal and criminal organized action by state and corporate actors, like a lack of bureaucratic and regulatory oversight, tacit encouragement of corporate crimes and environmental destruction or tacit support on the part of the corporation, and direct involvement in mass atrocities and genocide as “explicit commission.” State-​corporate collaboration ranges from loose and informal to formal collaboration. Either the state or the corporation can be actively involved, while the other side turns a blind eye or explicitly or implicitly encourages such criminal activity. Corporations navigate this continuum of involvement as actors independent to the state. Thus, state-​corporate collaboration assigns a political role and responsibility to corporations that extends beyond what is covered in their usual social responsibility. In particular, this role requires due diligence in the assessment of risks in the environment where the corporation operates or plans to do so (Wettstein, 2010; Schrempf-​Stirling, 2018).

398    Wim Huisman, Susanne Karstedt, and Annika van Baar In legal scholarship on corporate complicity to human rights violations, classifications of complicity focus on the effects of corporate activity on the commission of international crimes. The International Commission of Jurists has identified a “zone of legal risk” for corporate complicity in international crimes, thus acknowledging the fluid boundaries between co-​perpetration and complicity. The Commission distinguishes between three types of involvement of corporations: enabling, exacerbating, or facilitating the commission of international crimes.6 Clapham (2001) distinguishes between direct corporate complicity (knowingly assisting a state in human rights violations, which would include atrocity crimes), beneficial corporate complicity (benefitting from human rights abuses), and silent complicity (staying silent in the face of human rights abuses). While both the criminological and legal typologies offer distinct qualifications of the nature of the involvement of a corporation, neither of them gives much insight into the processes—​the scripts—​in which corporations become involved, interact, and collaborate with the main actors in the commission of atrocity crimes. In the following sections we will shed light on these processes, types of crimes, and corporate involvement since World War II.

2.2. Crime types, prevalence, and development in the 20th and 21st century In 2008, a report by the Special Representative of the Secretary-​General, John Ruggie, on human rights and transnational corporations gave the first comprehensive overview of the involvement of businesses in human rights violations.7 The report was based on a survey of Fortune Global 500 firms about their human rights policies and management practices (Ruggie, 2006). As the report focused on human rights generally, the overwhelming majority concerned labor-​related rights, and atrocity crimes were not separately reported.8 Nonetheless, it gave an indication where such violations are concentrated. The majority were located in Asia and the Pacific, Africa, and Latin America; the largest number of corporations belonged to the extractive sector of industries, that is, mining and oil companies, followed by the sector of retail and consumer products.9 Given the focus of the report, workers were mostly affected by the abuse and violations of basic labor rights, including child and slave labor, or repression of union activity. Entire communities and large numbers of victims could be affected by a single instance of alleged abuse, for example, in

6 

International Commission of Jurists (2008) Corporate Complicity and Legal Accountability. Geneva: International Commission of Jurists. Available at: https://​www.icj.org/​report-​of-​the-​icj-​expert-​legal-​ panel-​on-​corporate-​complicity-​in-​international-​crimes/​ (Accessed: January 29, 2020) (International Commission of Jurists 2008), p. 10. 7  United Nations Human Rights Council (2008) Report of the Special Representative of the Secretary-​ General on the issue of human rights and transnational corporations and other business enterprises. Addendum: Corporations and human rights: a survey of the scope and patterns of alleged corporate-​ related human rights abuse, A/​HRC/​8/​5/​Add.2 (2008 UN HRC Report). 8  These are the largest firms by revenue. 300 firms were contacted by the UN Secretary-​General’s Special Representative for Business and Human Rights and collaborated in the survey. See Ruggie (2006) for further details of the methodology. 9  2008 UN HRC Report, paras. 8 and 9.

The Involvement of Corporations in Atrocity Crimes    399 illegal waste and hazardous safety practices.10 The majority of corporations were directly involved, due to the mostly labor-​related rights abuses, and a minority indirectly, for example, through their supply chains or other support for the main perpetrators. In this chapter we rely on our own data set to outline the extent and nature of corporate involvement in atrocity crimes specifically. This comprehensive database covers the period since World War II until 2019, and presently includes 105 cases of corporations for which accusations of such involvement could be substantiated from a range of sources (Huisman et al., 2020).11 The database uses a broad definition of corporate involvement as outlined in Section 2.1. Most corporations were involved in atrocity crimes over extended time periods, depending on the nature of the conflict, the type of involvement and decisions by the corporations, and consequently in numerous atrocity crimes.12 For each corporation, information about its involvement was collected from academic literature, NGO reports, journalistic articles and documentaries, as well as legal documents, if available. The reliability of the information was checked and cross-​checked for each corporation on a case-​by-​case basis. Information collected and subsequently coded includes the nature of the corporation and its activities, periods and types of crime and involvement, actors and context, as well as reactions ranging from legal procedures to boycotts or civil lawsuits. Categorization of atrocity crimes was based on the Rome Statute and followed the description and categorization that was used in the sources utilized for the data set.13 During the period covered, 90 corporations were involved in crimes against humanity, 51 in war crimes, and 18 in genocide. The corporations involved in cases of genocide include 16 from the Holocaust, and two contemporary cases: energy company ExxonMobile involved in Aceh during the Indonesian mass atrocities, and Canadian energy provider Talisman with involvement in Sudan in relation to ongoing mass atrocities in Darfur. The database thus covers two different contexts, World War II and the Holocaust in Europe, and global involvement in the subsequent period until 2019. Figure 17.1 gives an overview of the development of corporate involvement across global regions since World War II. The early cases include a considerable number of corporations that were part of the Nuremberg Trials or related procedures. Between 1950 and 1989, only a handful of cases of corporate involvement, mostly related to the Apartheid regime in South Africa, are recorded. From 1990 onward, an exponential growth of cases of corporate involvement is registered, with a peak at the beginning of the 21st century. The global distribution of corporate involvement in atrocity crimes across this period is indicative of the environment and zones of risk that are conducive to corporate involvement. 10 

2008 UN HRC Report, paras. 32 and 33. data set exclusively focuses on atrocity crimes as covered by the Rome Statute: war crimes, crimes against humanity, genocide. See for a more encompassing data set Payne et al. (2020). 12 For example, corporations in Germany could be involved in the dispossession of the Jewish population starting in the 1930s, or directly in the Holocaust starting in the 1940s, resulting in distinctly different periods of involvement; corporations in South Africa during the Apartheid regime might have been involved throughout the period that Apartheid was in place, up to several decades. 13 This is not necessarily an authoritative legal definition. Various sources were checked for the categorization used, whether as crimes against humanity, war crimes, or genocide. As far as possible, detailed descriptions of the incidents and events were used for the final categorization as one (and only one) of the three crime categories. However, a corporation can be involved in more than one type of crime during the period of its involvement, and often allegations and accusations also include multiple crimes. 11  This

400    Wim Huisman, Susanne Karstedt, and Annika van Baar 18

Number of corporations

16 14 12 10 8 6 4 2 0 f

e or

be

45

54

19

– 45

64

19

19

19

– 55

19

Africa

74

19

– 65

19

Europe

84

19

– 75

19

94

19

Asia and Oceania

04

14 20

20

19

– 85

– 95

19

20

– 05

t

en

es

r –p

15 20

Latin America

Figure 17.1  Corporate Involvement in Atrocity Crimes across Global Regions in the 20th and 21st Century Source: TransCorpHRV 2020; N = 105 No reported cases of corporate involvement in North America region

Ongoing conflicts are seedbeds of such involvement, and in particular authoritarian regimes actively facilitate such corporate activities or at least tacitly encourage them, often profiting from them. Before 1950 Europe was the theater of war, where corporations were involved in the Holocaust and in the policies of annihilation, destruction, and pillage. The ongoing conflicts and authoritarian regimes in Latin America are reflected by the first peak of cases during the 1970s, followed by the second one in the 1990s related to major and protracted civil wars and conflicts in this region. The South African Apartheid regime is related to cases between 1950 and 1970. However, Africa experiences a peak in such cases in the two decades between 1990 and 2009, reflecting the impact of civil wars and conflicts and major mass atrocities during this time. After the “Arab Spring” of 2011, cases are brought to courts against corporations enabling brutal dictators to stay in power in this region. In the early 2000s, corporate involvement in atrocities in Asia increases exponentially; this includes cases of corporations doing business with the military dictatorship in Myanmar and cases of corporations getting entangled in civil wars for independence in Indonesia and Papua New Guinea. Transnational corporations operate across borders, in their countries of origin or home countries, and in the host country, where their activities take place and involvement occurs on the ground. Figure 17.2. gives an overview of the operational bases of corporations, the global regions of the home country of the corporation, and of the host country where the activities and operations took place that led to involvement in atrocity crimes. Across the period, the majority of corporations are located in and operate from Europe, followed by North America. In contrast, host countries of corporate activity are mostly in Africa, followed by Asia and Latin America. The division into an economically powerful Global North and

The Involvement of Corporations in Atrocity Crimes    401

Number of corporations

60 50 40 30 20 10 0

Africa

Europe

Asia and Oceania

Home Country

North America

South America

Host Country

Figure 17.2  Host and Home Countries of Corporations Involved in Atrocity Crimes across Global Regions in the 20th and 21st Century Source: TransCorpHRV 2020; N = 105 No reported cases of corporate involvement in host country in North American region

much weaker Global South is apparent from the 1960s onward, and certainly represents the typical cases of corporate involvement in the second half of the 20th and first decades of the 21st century. Corporate involvement before this period is related to the Holocaust and differs from this pattern: these cases took place either in the home country of the corporations, Germany, or in the European countries occupied by Germany. In that way, corporate involvement in the Holocaust equally crossed borders, in particular when corporations used forced labor from occupied countries and looted and exploited the industrial and corporate base in these countries. In any case, cross-​border corporate involvement in atrocity crimes is predicated on substantive disparities of power, either economic or military. Corporate involvement in atrocity crimes generally extends over considerable periods and includes multiple types of crimes. Categorization as to crime against humanity, war crime, or genocide generally depends on the context and the situation in which these crimes are committed. In the course of the period of corporate involvement in a country, types of crimes and types of involvement can also vary, often depending on the environment in which the corporation is active (e.g., for Latin America see Kaleck 2013; de Haan 2020). In addition, as corporations are mostly not directly involved in atrocity crimes, the role of the main actors and perpetrators define the type of corporate involvement. The majority of corporations are involved in crimes against humanity (87 percent of all corporations), followed by war crimes (50 percent), and genocide (17 percent).14 Tables 17.1 to 17.3 give an overview of the typical crimes in which corporations were involved since World War II.

14   All corporate involvement in the Holocaust was classified and coded as genocide, even if genocide was not a charge at the Nuremberg Trials. In this we followed subsequent and contemporary sources, where this classification is common.

402    Wim Huisman, Susanne Karstedt, and Annika van Baar Table 17.1: Types of Corporate Involvement: Crimes against Humanity (% of

corporations) Crimes against Humanity (specified)

% corporations (N)

Murder Extermination Enslavement Deportation or forcible transfer of population Imprisonment or other severe deprivations of physical liberty Torture

48.9 (44) 15.6 (14) 27.8 (25) 26.7 (24) 41.1 (37) 46.7 (42) 35.6 (32)

Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender basis Enforced disappearance of persons The crime of apartheid Other inhumane acts of a similar nature Not specified N of cases

16.7 (15) 18.9 (17) 20.0 (18) 28.9 (26) 12.2 (11) 305

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to multiple types of involvement by one corporation. Includes only cases of corporations involved in crimes against humanity (90).

Table 17.2: Types of Corporate Involvement: War Crimes (% of corporations) War crimes (specified)

% corporations (N)

Willful Killing Torture or inhuman treatment, including biological experiments Wilfully causing great suffering, or serious injury to body or health Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly Compelling a prisoner of war or other protected person to serve in the forces of a hostile power Unlawful deportation or transfer or unlawful confinement Taking of hostages Other serious violations of the laws and customs applicable in international armed conflict Other serious violations of the laws and customs applicable in armed conflicts not of an international character Not specified N of cases

45.1 (23) 33.3 (17) 25.5 (13) 49.0 (25) 23.5 (12) 25.5 (13) 2.0 (1) 25.5 (13) 17.6 (9) 9.8 (5) 131

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to multiple types of involvement by one corporation. Includes only cases of corporations involved in war crimes (51).

The Involvement of Corporations in Atrocity Crimes    403 Table 17.3: Types of Corporate Involvement: Genocide (% of corporations) Genocide (specified)

% of cases (N)

Killing members of the group Causing serious bodily or mental harm to members of the group Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part Imposing measures intended to prevent births within the group Forcibly transferring children of the group to another group Not specified N of cases

55.6 (10) 55.6 (10) 50.0 (9) 22.2 (4) 22.2 (4) 44.4 (8) 45

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to multiple types of involvement by one corporation. Includes only cases of corporations involved in genocide (18).

Crimes against humanity, as shown in Table 17.1, are dominated by murder, torture, imprisonment, and deprivation of liberty. Corporations are less frequently involved in enslavement, sexual violence, deportation, and enforced disappearances. This distribution of involvement seemingly reflects two situations of extremely repressive state violence: the Apartheid regime in South Africa and the conflicts and repression in Latin American countries. The most common crime types are those that are mainly committed by police and other security forces, including the military. The case of a Dutch multinational corporation and its involvement in the state repression in Argentina between 1976 and 1983 epitomizes the “silent complicity” of the corporate management in abduction, torture, and disappearance of local workers and union activists (de Haan, 2020). The 51 cases of corporate involvement in war crimes are indicative of the armed conflicts of which they are part. Table 17.2, shows that excessive and criminal violence, like willful killing, torture, and serious bodily injuries, are defining features of corporate involvement in theaters of war. This includes killings (45.1 percent of all corporations), and other serious violence against civilians, like torture (33.3 percent) and serious injuries (25.5 percent). Corporate involvement in war crimes is, however, dominated by destruction of property (49 percent of all corporations). A quarter of the corporations involved in war crimes are complicit in each of these two crimes: violations against prisoners of war (23.5 percent), and deportation, confinement, and detention in camps (25.5 percent). They are involved in violations of the laws of international conflict (25.5 percent) as well as the laws applicable to civil and ethnic wars and domestic conflict (17.6 percent). Corporate involvement in genocide is dominated by the Holocaust, to which 16 of the cases are related. Table 17.3 demonstrates that half of the corporations were involved in the acts of violent destruction of a group, the Jewish population of Europe, including killing (55.6 percent), serious bodily harm (55.6 percent), and inflicting life conditions with the aim of destruction of the group (50 percent). In a number of cases, corporate involvement was of a more indirect nature, as, for example, in the cases of transport of the population by

404    Wim Huisman, Susanne Karstedt, and Annika van Baar Table 17.4: Involvement of Industry Sectors in Atrocity Crimes (% of cases) Industry Sector

% corporations (N)

Extractives Manufacturing and industry IT and telecommunications Infrastructure & utilities Agriculture, food Pharmaceuticals and chemicals Financial services Private military Other N of cases

39.8 (41) 21.4 (22) 9.7 (10) 8.7 (9) 7.8 (8) 6.8 (7) 9.7 (10) 4.9 (5) 5.9 (6) 118

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to multiple activities in different industry sectors by one corporation.

national railway corporations of Germany or France, providing technical equipment to the Nazi regime, or profiting from the murder of the Jewish population. Industry sectors differ widely in terms of corporate involvement, as shown in Table 17.4. The distribution of corporations involved in atrocity crimes mirrors the one found by Ruggie (2006) for human rights violations more generally. In particular, corporations in the extractive industries sector are not only at a high risk of violating human rights more generally, but also lead involvement in atrocity crimes with 39.8 percent of all cases of corporate involvement. About a fifth (21.4 percent) of the corporations operate in manufacturing and in both heavy and light industries. Other industry or agricultural sectors contribute between 5 percent and 10 percent, with IT and telecommunications businesses represented with nearly 10 percent. The service sector is represented by financial industries with 9.7 percent, and private military and security forces with 4.9 percent. Notwithstanding a concentration of risks of involvement in extractive and manufacturing industries, Table 17.4 demonstrates a wide range of sectors of goods, production, and services, involving all types of industry. As corporations mostly contribute to the commission of atrocity crimes, rather than directly perpetrating these crimes (see next section), they collude with the main actors and perpetrators. Corporations often cooperate not only with one of the main perpetrator groups, but also with several different actors, for example, with state agencies and state-​ funded militias, or even with both conflict groups, including state security forces as well as rebel groups. Table 17.5 gives an overview of accomplices and partners across the period of corporate involvement measured in our data set. State actors are the most common partners. More than half (57.1 percent) of the corporations became involved in atrocity crimes through cooperation with the military and one-​third (36.3 percent) through cooperation with security forces. Collusion with other state agencies takes place in a quarter of the cases (27.5 percent). State-​funded militias are counted among state actors, given their proximity to state agencies and their causes, however, they have a minor role as partners in corporate

The Involvement of Corporations in Atrocity Crimes    405 Table 17.5: Corporate Complicity: Main Actors and Partners Involved (% of

corporations) Industry Sector

% corporations (N)

State military State security agencies (non-​military) State agencies (other) Militias and/​or paramilitaries (state-​funded and related) Militias (not state-​funded) Rebel and warlord groups Corporations (private) Corporations (state-​owned) N of cases

57.1 (52) 36.3 (33) 27.5 (25) 8.8 (8) 5.5 (5) 13.2 (12) 23.1 (21) 6.6 (6) 162

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to one corporation engaging with multiple actors and partners. Includes only corporations with other actors/​accomplices in the commission of crimes.

involvement (8.8 percent). About one-​fifth (18.7 percent) of corporations cooperate with non-​state actors, like militias not funded by the state and mostly acting independently (5.5 percent), or rebel and warlord groups (13.2 percent).15 The private sector, including both private and state-​owned corporations, has a substantive presence as accomplices and business partners in networks of perpetrators, with nearly one-​third of the cases of corporate involvement (29.7 percent). This distribution reflects the dominance of state agencies, military, security forces, police, and state-​supported militias as perpetrators of atrocity crimes across the entire period since World War II. In sum, the major global patterns and trends of corporate involvement in atrocity crimes reflect those of general human rights violations as found by Ruggie (2006). Given the nature of atrocity crimes, corporate involvement is most prevalent in conflict zones with fragile and weak states and in repressive regimes. Generally, trends, as shown in Table 17.1, mirror the trajectories of hot spots of violent conflicts around the globe (Karstedt, 2012). The typical patterns corroborate that corporate involvement is characterized by state-​corporate collaboration and is indeed most often committed as state-​corporate crime. Such similarities between Ruggie’s findings for human rights violations more generally and the characteristics of corporate involvement in atrocity crimes as presented here speak to the connectivity between corporate human rights violations and atrocity crimes, where the former might generally flag a risk of corporate involvement in the most serious international crimes.

15 

Generally, state agents are those serving the government, while groups opposing the government are counted as non-​state actors. Militias and paramilitaries are mostly funded by the state, either openly or clandestinely, and consequently often counted among state actors, depending on their proximity to state agencies. Militias, which are not state funded and operating on their own, are defined as non-​state actors (see Karstedt, 2013).

406    Wim Huisman, Susanne Karstedt, and Annika van Baar

3.  The Crime Scripts of Corporate Involvement in Atrocity Crimes The analysis of “crime scripts” provides more in-​depth analysis of the ways companies become involved in atrocity crimes. Crime script analysis maps the sequence of actions used by offenders during crime commission and identifies points of vulnerability suitable for regulatory intervention (Levi and Maguire, 2004, p. 429). It conceptualizes criminality as rational, goal-​oriented, and purposive behavior. Understanding the sequence of decision making in the process leading to criminal activity, the points in the chain of actions when such decisions are made, and how the ensuing behaviors are related is decisive for mapping suitable intervention mechanisms onto such “scripts” of action (Lord et al., 2017). Crime script analysis can involve general “universal scripts” as well as more specific “tracks” within the general script (Lord et al., 2017). When applied to corporate crime, it is very similar to models of organizational decision making in organizational science (Huisman, 2016). As crime script analysis focuses on the processual and dynamic nature of involvement in crime, it is particularly suitable to trace the pathways of corporations into atrocity crimes. Based on the analysis of 105 cases of corporate involvement that were included in our database, we identified a number of ways in which corporations become involved in atrocity crimes. First, corporations’ employees can themselves be the actual perpetrators of atrocity crimes, such as employees of private military firms executing innocent civilians, or torture and abuses by private contractors, the use of forced labor by industrial manufacturers, and the destruction of the environment and the livelihood of tribal societies by mining companies. More often, however, corporations are involved in atrocity crimes primarily committed by the perpetrators described earlier as their partners. The contribution of corporations can either enable, facilitate, or exacerbate these crimes.16 Corporations can contribute to the commission of atrocity crimes in roughly two ways: as buyers or as suppliers. Buyers can become involved when the extraction or the production of the product involves atrocities or when the revenues paid by the corporation are used to fund armed conflict, in the course of which the conflict parties commit atrocity crimes. Several companies have been accused of financing conflict and the commission of atrocity crimes by buying conflict commodities such as ores and minerals; others have paid armed factions for concessions for the extraction of such natural resources, for instance companies trading conflict minerals from the Democratic Republic of Congo.17 Suppliers, in turn, can become involved if their products or services are used to execute the atrocity crimes. Examples of these products can be arms, chemicals, private military services, and even surveillance technology. These products can be tailor-​made for the commission of these crimes, but in many cases, these are “dual use” products that also have a neutral utilization (Burchard, 2010). Such a neutral commodity might also be money, as

16 

Enabling refers to making the crime possible, facilitating to making the commission of the crime easier, and exacerbating to worsening the harms of the crime. Cf. International Commission of Jurists 2008; see note 6. 17  2010 UN High Commissioner for Human Rights Report.

The Involvement of Corporations in Atrocity Crimes    407 Table 17.6: Types of Indirect Involvement (% of cases) Indirect Involvement

% corporations (N))

Supply of goods Logistical support Funding and finance Other N of cases

39.1 (34) 34.5 (30) 43.7 (38) 8.0 (7) 109

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to multiple types of involvement by one corporation. Includes only corporations with indirect involvement; Holocaust cases were defined as direct involvement.

banks have been blamed for financing dictatorial regimes and contributing to their economic survival by providing investments and loans (Dowell-​Jones, 2013). Corporations can also provide logistical support, for example letting corporate facilities and infrastructure be used for the commission of atrocity crimes (McBeth, 2008) and providing information such as names and locations of trade union members that lead to their arrest and subsequent torture and disappearance at the hands of security forces (Verbitzky and Bohoslavsky, 2016; de Haan, 2020). Table 17.6 shows the types of indirect support provided by corporations to perpetrators of atrocity crimes.18 Supply of goods and logistical support are directly related to the business activities of the corporations involved: 39.3 percent of corporations, which we classified as indirectly involved in atrocities, supplied goods that were used by actors when committing atrocity crimes, and one-​third (34.5 percent) of such corporations provided logistical support for perpetrators of the crimes. Funding and financing are the most common types of indirect involvement with 43.7 percent and reflect the role of supply-​and-​demand chains in which corporations operate. This proportion includes all revenues from buying, selling, and concessions for the main actors in the crimes, and in particular reflects the engagement of extractive industries and their support for the perpetrators. As facilitators of atrocity crimes, corporations can profit from their involvement, for instance because of the revenues of the products and services they sell. However, corporations can also profit from crimes committed by the main actors without directly facilitating these crimes. Instances of such “silent complicity” and profiting include the violent repression of protests against a company’s activities by the police or security forces, forced displacement of people for mining, or the use of cheap but forced labor. The potential profits and substantive gains from involvement are powerful incentives for companies to engage in business in areas where they run the risk of becoming accomplices to atrocity crimes. As shown earlier, spatial and temporal patterns of corporate involvement in atrocity crimes are defined by war and conflict; these equally provide opportunities, often tied to

18  All 16 cases of corporate involvement in the Holocaust were classified as direct involvement given their activities; they are excluded from table 17.6.

408    Wim Huisman, Susanne Karstedt, and Annika van Baar certain types of regimes. Authoritarian rulers may, on the one hand, restrict corporate activities to those that fit governmental interests as well as individual interests within government. On the other hand, by doing so, they offer lucrative governmental contracts to corporations. The strive for self-​sufficient, autarkic economies by the German Nazi regime and the South African Apartheid regime provide ample examples (van Baar, 2019). Armed conflict is generally bad for business, as it negatively impacts the local economy and makes it unsafe for companies to operate (Le Billon, 2003). However, armed conflict can also bring interesting business opportunities, such as a sudden demand for certain goods and services, no-​bid contracts, and a monopoly position for already operating businesses (van Baar, 2019). Corporations are collective actors, and as such their involvement develops along a series of decisions and actions; this process is the very idea behind the concept of corporate criminal liability, which makes the corporation accountable. Brants (2007, p. 315) outlines the context and “bureaucratic nature of organizational and collective decision making,” which applies to corporations as well as to governments and state agencies (Karstedt, 2014). This includes the division of labor and dispersion of responsibility; the prominence of organizational goals that coincide with denial of harm for victims; and generally, a distance from victims. Further, organizations shape a collective mentality that guides and legitimates action and choices, both for decisions at the level of the organization and corporation, and for the individual decision maker. Importantly, corporations do not decide on their operations because they want to become involved in atrocity crimes. Their operations are motivated instead by factors such as increasing profits or production, safeguarding access to raw materials, or/​and maintaining a competitive market position for the company (Stel and Naudé, 2016, p. 595). Looking at the cases at hand, we can differentiate two pathways into corporate involvement in atrocity crimes. First, corporations can make the decision to start operating in a situation where the risk is comparably high that they will become involved in such crimes, making them therefore potentially liable in the end. For instance, mining or energy companies may decide to become involved in the operation of ore-​veins or oil fields that are newly discovered in countries with authoritarian rule and poor human rights records or in areas of armed conflict. By doing so, they take the risk of becoming involved in atrocity crimes (Huisman, 2010). Even if they do not plan to become involved, their business activities can aid the principal offender of those crimes. However, operating in a conflict zone or in a country of authoritarian rule is not always the result of a decision to do so. In various cases, companies are already present in a country in which the political situation changes, when dictators come to power or civil war breaks out. This scenario represents a second pathway to involvement. When corporations decide to stay, for instance to protect corporate assets, they may find themselves accused of contributing to the crimes of the new leadership in their area of operation (Prosansky, 2007). Not every company runs the same risk of becoming involved in atrocity crimes, as was illustrated by differing prevalence rates in different industry sectors (Table 17.4.). The (over) representation of specific sectors of industry points at risks associated with the nature of their business or the places in which business actually can be done the most profitably for the company. The latter is certainly true for the extractive industries, as their business is often found in fragile states, where atrocity crimes are committed (Ralph, 2017). This includes corporations involved in extracting natural resources, such as minerals (fossil fuels, ores,

The Involvement of Corporations in Atrocity Crimes    409 and gems), and in agricultural, horticultural, and forestry products such as tropical timber, rubber, and cocoa. Exemplary for a business prone to human rights abuses are private military services, as illustrated by various lawsuits against private military companies or their contractors for alleged involvement in war crimes (Ryngaert, 2008). Certain products are particularly risky as they are used in the commission of atrocity crimes. Arms are the obvious example, but other strategic goods serve a similar purpose. For instance, a number of IT companies have been accused of developing surveillance software for authoritarian regimes that is used to track down political opponents, and thus facilitates violent repression and human rights violations against such opposition. Not surprisingly, private military companies and their contractors have been accused of atrocity crimes committed in the context of their operations in conflict areas (Welch, 2009). Less obvious are “dual use” goods that have civil as well as military purposes. Dutch businessman Frans van Anraat was sentenced to 19 years in prison for complicity in Saddam Hussein’s war crimes. In his case, the Dutch prosecutor was able to prove that the chemical products he provided were not used to produce fertilizers but rather chemical weapons (Huisman and Van Sliedregt, 2010). Money seems to be the most neutral commodity, as the saying goes, pecunia non olet: money does not stink, and its flows are often hard to follow. Yet, several banks have been tracked down and accused of involvement in atrocity crimes, either by giving loans to authoritarian regimes that commit these crimes, by laundering the criminal proceeds of these regimes, or by investing in companies that are involved in such crimes (Dowell-​Jones, 2013). Table 17.7 represents the range of gains and benefits that may have guided decision making and incentivized involvement for companies. This includes benefits from trading and selling, gains in operations and production, like competitive advantages, and advantages from securing safe and uninhibited operations. Nearly half (44.7 percent) of the corporations in our data set were simply led to involvement in atrocity crimes because of the type of goods produced and sold, which were of a high-​risk nature in the context of conflict zones

Table 17.7: Gains and Benefits from Involvement (% of cases) Gains from involvement

% corporations (N)

Trading and delivering goods and services (e.g., arms, chemicals, military services, surveillance) Trading in conflict commodities Exploitation/​pollution of the natural environment Displacement of civilians for extraction/​business Exploitation of labor (forced labor, slavery) Security from attacks Strikes and local protests suppressed Union activity suppressed N of cases

44.7 (38) 10.6 (9) 23.5 (20) 12.9 (11) 18.8 (16) 16.5 (14) 9.4 (8) 12.9 (11) 127

Source: TransCorpHRV 2020; Percentages add up to more than 100% due to multiple gains and benefits by one corporation. Includes only corporations for which a clear gain or benefit was identified.

410    Wim Huisman, Susanne Karstedt, and Annika van Baar and authoritarian regimes: trading in arms, military services, or surveillance. Ten percent of corporations participated in the trade of conflict commodities, mostly as part of their “business as usual.” Exploitation of the environment (22.9 percent) and displacement of civilians for resource extraction (12.9 percent) constitute advantages in operations for corporations from extractive industries and are mostly achieved with the support of state agencies. Corporations involved in the Holocaust and World War II profited from forced labor (18.8 percent) in close collusion with the German administration in occupied countries (e.g., in Poland, Roth, 2009). Generally, “silent complicity” by corporations in response to repressive actions of the state leads to indirect gains for businesses; this includes security of operations and state interventions ensuring the smooth running of business, which in turn encourages corporations to become involved in atrocity crimes (de Haan, 2020). In 38.8 percent of the cases of corporate involvement, corporations profited by receiving security from attacks in a conflict (16.5 percent), from repression of strikes and other local protests (9.4 percent), and suppression of union activity (12.9 percent). In sum, the nature and the ways in which corporations become involved in atrocity crimes—​the “crime scripts”—​are related to the nature of their businesses. While supply and demand seem to be important variables, the causal relation to crime involvement needs further study. In the same vein, profit maximization or loss minimization are not sufficient explanations of such involvement and the pathways that lead to it (Stel and Naudé, 2016, p. 606). Authoritarian rule and armed conflict may be the result of the problems that fragile states suffer due to resource-​richness (the so-​called resource curse), thus providing opportunities and incentives in a high-​risk environment.19 Other companies might get involved because they are of strategic importance for the perpetrators of atrocity crimes and therefore, particularly rewarded and protected. A case-​specific analysis can shed further light on these processes. In the next section, therefore, we present two in-​depth case studies of the environment, contexts, and ways in which corporations get involved in atrocity crimes.

4.  Case Studies This section will present two in-​depth case studies of corporate involvement in atrocity crimes. Set apart by nearly half a century and taking place in different continents, they were chosen because they represent typical characteristics of a number of companies in our data set, and allow us to illustrate the trends, dynamics, and processes of involvement as described in Section 2. The first case study concerns a context in which crimes are committed by an authoritarian regime and discusses forms of direct involvement in atrocities committed during the Nazi Regime. In this case study we contrast the involvement of large, multi-​national corporations with the involvement of a smaller, family company, as the involvement of smaller companies in the Holocaust tends to be neglected. The second case study concerns a context of armed conflict in a fragile state, the DRC, and is exemplary of indirect corporate involvement in atrocities. We contrast two positions from which corporations became involved: many, often smaller, corporations became involved 19 

See Chapter 7 by Kieran Mitton in this volume for further discussion.

The Involvement of Corporations in Atrocity Crimes    411 through their supply chains, while the large multinational mining corporations were active on the ground. The two case studies thus reflect on the fact that the trends and characteristics of corporate involvement as presented in the preceding section include both historical cases of the Holocaust and contemporary ones in the second half of the 20th and the first decades of the 21st centuries.

4.1. Direct involvement in the Holocaust: The case of Nazi Germany Corporations became involved in atrocities committed by the Nazi regime before and during World War II by using forced labor and by supplying goods and services in the course of the Holocaust.20 These corporations were already operating in Germany when the Nazis came to power and Germany’s political context changed. From 1933, German corporations and foreign-​owned subsidiaries situated in Germany fell under and (in some cases) did business with an increasingly violent totalitarian regime. With the start of World War II, most of the crimes committed took place in the occupied countries, and not within the home country of the German corporations. As is typical in totalitarian (and authoritarian) regimes, Nazi state policies and control led to business opportunities that entailed (a risk of) involvement in atrocity crimes, while opportunities to prevent or escape such involvement were restricted. Corporations were pressured and incentivized to work toward the state’s goals: self-​sufficiency,21 warfare, and genocide (Overy, 2002; Tooze, 2006). On the one hand, these goals severely restricted business. Self-​sufficiency decreased international business, warfare led to a shortage of raw materials and labor, and the government coerced corporations into investing corporate resources to carry out government policies (Tooze, 2006). On the other hand, the Nazi regime’s goals and policies provided corporations with new opportunities. Self-​sufficiency, warfare, and genocide came with rising numbers of government contracts, and presented corporations with hitherto unimaginable possibilities for business (van Baar, 2019). The Nazis created a context in which acting in line with the goals of the regime was a precondition for maximizing profits, minimizing losses, or even for survival for Germany’s largest corporations and banks. German banks, for example, came to participate in the transfer of Jewish property into “Aryan” hands. Assisting Aryanization, banks arranged the sales of Jewish-​owned businesses and sought suitable buyers for these properties. Deutsche Bank, Dresdner Bank, Commerzbank, and others competed for these new opportunities to replace the losses they had incurred, for example, by restrictions of international currency exchange and payments. In addition, banks expected to profit from the new opportunity presented by state policy. By assisting the buying of undervalued Jewish property, for example, and then selling credit to its “Aryan” buyers, banks hoped for large margins and an extension of their market share relative to their competitors. However, the “Aryanization

20 Examples

include Deutsche Bank, Allianz, Tesch & Stabenau, Topf & Söhne, IG Farben, subsidiaries of Ford and Volkswagen, and many more. 21  An important aspect of self-​ sufficiency, enacted after 1939, was the expansion toward the East, occupying and “Germanizing” ’ Eastern Europe in a war of destruction.

412    Wim Huisman, Susanne Karstedt, and Annika van Baar business,” in reality, did not turn out to be very profitable. The Nazi regime made sure that Aryanization benefited “the Reich and the Reich only” (James, 2001, p. 54; see also, James 2004; Ziegler, 2005; Hayes, 2007). Similar to the large German banks, Germany’s large insurance companies also carried out the state policy of Aryanization. Contrary to German banks, they did so without any prospect of profitability (Feldman, 2001; Feldman, 2004). After the Reichskristallnacht,22 German insurance companies such as Allianz were ordered to handle all Jewish claims for damages and pay out the insurance money not to the policy holders but, instead, to the state. Insurance companies tried to prevent this by referring to the legal right to not have to cover payments in case of public disturbances. Ultimately, however, they complied. In November 1941, insurance companies were ordered to report to the state all registered assets of Jews who had “taken up residence abroad,” which included those who had been deported to concentration camps. As of November 27, 1941, these assets were also to be transferred to the state. Again, insurance companies complained, but complied (Feldman, 2001).23 IG Farben, a chemical conglomerate and one of Germany’s largest corporations, as well as one of the largest corporations globally, was, through its subsidiaries and through its close collaboration with the Nazi regime, involved in the Holocaust in multiple ways. Doctors employed by Hoechst (part of IG Farben), for example, deliberately infected prisoners with typhus in order to test their newly developed anti-​typhus drug (Lindner, 2008). A cure for typhus was never found, so Hoechst was never able to profit from its crimes nor develop a successful drug before its competitors did. IG Farben was most directly, and perhaps most prominently, involved through its use of forced labor. The forced labor system, set up by the Nazi regime in order to replace German men who had been drafted into the army, implicated all significant German corporations, in particular in the armament industries. Similar to the process by which corporations had become involved in Aryanization, competition among businesses also spurred the use of forced and slave labor (Hayes, 1998). Corporations did not always profit from the use of forced labor: the wages corporations were to pay to the state did not weigh up to the productivity of forced laborers, which was very low due to the life-​threatening circumstances in which they were held captive. Nevertheless, forced labor was often deemed necessary for corporations to keep production going. Under pressure to fulfil the regime’s output targets during the final years of the war, resisting employment of forced and slave labor was not seen as a viable course of action for German companies. In fact, it would have been self-​destructive, because it would decrease revenues and could negatively affect Germany’s war effort, and, toward the end of the war, could result in being accused of defeatism, a harshly punished crime, when corporations failed to support the state’s military goals (Hayes, 1998; Allen, 2004). Zyklon B, used in the gas chambers of extermination camps from 1942 onward, was produced by Degesh (owned by Degussa and IG Farben) and was retailed by Tesch & Stabenau (also under the name of Tesch or TeSta; Hayes, 2004; Hayes, 2007). In contrast to

22 

The “night of the broken glass” of November 1938 was the first large-​scale, state-​organized violent attack and pogrom on Germany’s Jews (Friedländer, 1997). 23 This time insurance companies complained by referring to the workforce that was needed to complete this task.

The Involvement of Corporations in Atrocity Crimes    413 the large banks, insurance companies, and multi-​nationals, Tesch was a much smaller company. It retailed Zyklon B as a fumigant against lice and diseases for use in military barracks and, from 1933, in concentration camps. In 1942, after a consultation with Bruno Tesch, the director of Tesch, experiments by the SS in Auschwitz showed that the already available Zyklon B could be used for mass murder. Tesch & Stabenau thus became involved in mass murder and genocide by delivering a dual-​use product that, from 1942 onward, was used for murderous purposes (Pressac and van der Pelt, 1994). The SS relied on the company Topf & Söhne (Topf) for the ovens that were used to burn the remains of victims in the concentration and extermination camps (van Baar and Huisman, 2012; Schüle, 2010). Topf was a medium-​sized, family-​run company. From 1939, Topf developed, manufactured, and installed ovens in Buchenwald, Auschwitz, Mauthausen-​Gusen, and several other camps, knowing the purpose for which they were to be used. In close cooperation with the SS as partners, Topf engineers worked independently and enthusiastically to increase the efficiency of the ovens. Topf & Söhne delivered a product that enabled the Nazi regime to complete its genocide, disposing of the bodies of its victims (Schüle, 2010). Topf was incentivized by the opportunity to deliver goods to perpetrators of atrocity crimes, as many more companies in our data set were. Many corporations seize such an opportunity because of its (expected) profitability. Nevertheless, the main drive that led Topf ’s engineers to design the most efficient and innovative ovens was not primarily profit seeking (van Baar and Huisman, 2010). The additional profits generated by Topf ’s business with the SS might have been important for the department of Spezialofenbau (special ovens building), but not for Topf as a whole. The production of crematoria, destruction ovens, and, later, ventilation systems accounted for only 2–​3 percent of the total turnover and profits (Gerlach, 2002). More than anything, Topf ’s business activities were inspired by the company’s corporate culture and its explicit goal to develop and manufacture technologically innovative and perfect products, and thus to get an advantage in future competitive markets. Topf presented itself as a modern and technologically advanced company in its advertisements, and the owners explicitly put “invention, creativity and proficiency before capital” (Schüle, 2010, p. 51). Initiatives for more efficient ovens came from Topf ’s engineers, who took it upon themselves to find a technical solution for the challenges of the SS’ murderous activities. They traveled to Auschwitz, and other camps, to measure the efficiency of their products. Engineers competed with one another over who could make the best design, seeking to be recognized for their work (Schüle, 2010). The emphasis on technological innovation indicates a collective mentality that guided and legitimated Topf ’s contributions to atrocity crimes and shielded them from conflicting moral considerations. To conclude, the “crime scripts” of corporate involvement in the Holocaust were dependent on the opportunity structure created by the totalitarian Nazi regime. These crime scripts were not necessarily driven by corporate greed for profits. In addition to the desire to make profits wherever possible, the desire to minimize losses and the general goal to survive under difficult circumstances were more prominent.24 In the case of Topf, the desire to create technologically advanced and innovative products, which would give an advantage

24  The notion that corporations profited greatly from their involvement in the Holocaust and other crimes by the Nazi regime is a historical fallacy (Hayes, 2006).

414    Wim Huisman, Susanne Karstedt, and Annika van Baar in a competitive market, seemed to even supersede the company’s drive to profit from its business with the SS. In some cases, it was “business as usual,” in the sense that corporations continued their core business activities. In other cases, most notably when corporations used slave laborers, corporations adopted unprecedented business practices. In particular, the use of slave labor is exemplary for the close collaboration between corporations and the Nazi regime, including the SS, and thus epitomizes state-​corporate crime. It was in the interest of both the state and the corporations that the supply of armament and domestic and agricultural products was not interrupted until the very end of the war.

4.2. Supply chains in a fragile state: The case of the DRC During the past decades, the DRC has witnessed two civil wars and various related conflicts, in which numerous atrocity crimes have been committed and for which leaders have stood trial at the International Criminal Court (Stearns, 2012). Atrocities have been committed by both non-​state actors including militias, rebel and warlord groups, and state actors, primarily the DRC’s security forces, including the police and army. Corporations became involved in atrocities by purchasing or seeking to extract goods, in particular natural resources. Corporations that purchase minerals in this context are situated on the demand side of the supply chain; they mostly operate through previously existing business relations. Corporations that seek to extract goods are situated on the supply side of the chain; they became involved in atrocity crimes by starting new operations in the DRC (van Baar, 2019). Industrial mining corporations, looking to extract natural resources, financed the informal coalition of Rwandan, Ugandan, and Angolan troops, headed by Laurent-​Desire Kabila,25 who assumed power in the DRC in 1997 after the end of the First Congo War. However, these corporations were not able to follow up on these investments, as Kabila’s alliance with the DRC’s neighboring states turned sour, and attacks by Ugandan-​and Rwandan-​backed rebel groups started the Second Congo War (1998–​2003; Stearns, 2012). During this war, industrial mining became too risky. In the final decade of the former DRC’s president Mobutu Sese Seko’s rule, virtually all mineral extraction had become artisanal (i.e., small-​scale, subsistence mining). Artisanal-​mined minerals traveled through informal trading channels, and mining houses26 resold the minerals to refineries and the world market. During the First and Second Congo Wars, most artisanal mining sites in Eastern DRC had been taken over by armed groups that used violence and extortion to make money from the mineral trade. Several of these parties to the conflict set up corporate-​military businesses to finance their warfare, during which they committed numerous human rights violations and war crimes (Nest et al., 2006). International trading companies, refineries, and manufacturers, operating on the demand side of the supply chain, became involved in atrocities connected to such military commercialism (Dietrich, 2000) as they purchased minerals that originated from rebel-​controlled

25 Kabila’s

Alliance of Democratic Forces for the Liberation of Congo-​Zaire is known to have committed war crimes and crimes against humanity (2010 UN High Commissioner for Human Rights Report, pp. 70–​150). 26  These mining houses functioned as mining companies through which minerals were exported.

The Involvement of Corporations in Atrocity Crimes    415 mines.27 Their pre-​existing business relations, related to Congolese mining houses, acted as middlemen to the rebel groups, which oversaw the mining of these “conflict minerals.” In the early 2000s, the high market price of cobalt led to substantial profits for rebel groups (Cuvelier and Raeymakers, 2002a; Cuvelier and Raeymakers, 2002b). Other minerals, such as tantalum, tin, and gold, also came to be known as “conflict minerals.”28 Many smaller international trading companies, such as UK-​based Afrimex and Dutch/​American Eagle Wings, were accused of trading in these minerals and thereby fueling the conflict in the DRC. In addition, the large “end-​user” companies, such as Nokia, Apple, and Motorola, were accused of putting “blood in our mobile.”29 In 2003, when the Second Congo War ended, low-​intensity conflict persisted in Eastern DRC. Although the war had officially ended, both rebels and the armed forces of the DRC have continued to commit atrocities.30 Both relied (and continue to rely) on their revenues from artisanal-​mined minerals (Stearns and Vogel, 2015). Supply-​chain corporate involvement in atrocities by Eastern DRC rebels and government forces thus persisted, in spite of the global anti-​conflict mineral campaign (complemented by conflict mineral regulation in the United States and the European Union). Refineries such as the UK-​based Johnson Matthey, South African Rand Refinery, and Swiss Gold Refinery Argor Heraeus, for example, were accused of refining gold that had financed rebel groups between 2003 and 2005.31 As involvement of corporations on the demand side of the supply chain continued, another type of involvement emerged. Industrial extraction companies, operating on the supply side of the supply chain, financed and provided logistic support to armed groups known to commit atrocities. At the end of the Second Congo War, the promise of peace had rekindled a promise of profit, and again attracted industrial mining companies impatient to (re-​)start their exploration and exploitation of Congolese natural resources. Kabila was keen to give permission to start mining operations in areas that were not (yet) under control of the Congolese government, given the prospect of substantial income for his government and himself (van Baar, 2019). For industrial mining corporations, initiating operations in these areas held high risks of becoming involved in atrocities. The police and military committed numerous and widespread atrocities in their effort to regain control and fight the rebel groups in this area. The industrial mining company Anvil Mining and a subsidiary of the timber manufacturer Danzer Group, for example, became involved in such violence when they paid police and military security forces on occasions of rebel attacks (Kyriakakis, 2007).32 Further, these

27 

Examples include Afrimex, Argor Heraeus, and Nokia. UNSC Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo UN Doc (12 April 2001) S/​2001/​357. 29 Coster, H. (2011) “Does Your Cell Phone Contain ‘Conflict Minerals’?.” Forbes. Available at: https://​www.forbes.com/​sites/​helencoster/​2011/​01/​05/​does-​your-​cell-​phone-​contain-​conflict-​minerals/​ #6edb06d03c35 (Accessed: March 3, 2020). 30  2010 UN High Commissioner for Human Rights Report. 31  A criminal investigation was eventually dropped by the Swiss prosecutor. More recently, electric car manufacturers have been accused of using conflict minerals (Church and Crawford, 2018). 32  See also: ECCHR. (2014). The Danzer Case: German Manager’s Liability for Subsidiary in Congo, Berlin. 28 

416    Wim Huisman, Susanne Karstedt, and Annika van Baar companies provided trucks, fuel, and drivers for the transport of victims and bodies. On the other side, the rebel groups committed atrocities in their effort to expand or defend their de facto control over areas in Eastern DRC. AngloGold Ashanti, for example, became involved in crimes committed by the Front des Nationalistes et Intégrationnistes (FNI), one of the rebel groups. It payed FNI’s leaders and provided logistical support, thus enhancing the group’s capacities, power, and legitimacy.33 The corporation stated that it had had no alternative to this course of action, but admitted that it had started operations too early in order to exploit already-​paid-​for concessions for gold extraction (Lenahan, 2006). To conclude, we can identify two distinct crime scripts for involvement in atrocity crimes in the DRC. Corporations on the demand end of the supply chain become involved through pre-​existing and often opaque business relations. Corporations on the supply end of the chain, in contrast, become involved because of high-​risk decision making mostly oblivious to the problems involved. These corporations may tend to be more (ruthlessly) profit-​ driven, whereas corporations in the former category are mostly engaged in “business as usual.” Nevertheless, both types of involvement had the same effect: they sustained the conflict in the DRC by financially and logistically supporting armed groups and thus (re-​) activating pre-​existing conflicts fueled by DRCs natural resources.

5.  Conclusion In this chapter, we have introduced an important but neglected actor in the commission of atrocity crimes: corporations. In legal scholarship as well as in international criminal law practice, the role of business actors in the commission of genocide, war crimes, and crimes against humanity is only slowly being acknowledged. However, it seems that a “justice cascade” is on its way to make multi-​national corporations accountable for their involvement in atrocity crimes. This is evidenced by a number of initiatives: criminal prosecutions of corporations and their leaders are pending in the national courts of various countries, and dozens of civil suits have been filed in atrocity crimes cases (Schrempf-​Stirling and Wettstein, 2017). The ICC Prosecutor has repeatedly alluded to shifting her focus to activities of business executives (Bernaz, 2017). Finally, the Malabo Protocol establishes corporate criminal liability for human rights violations, including atrocity crimes (van Sliedregt, 2019). These actions have been accompanied by a number of international soft law initiatives, starting with the Ruggie Report.34 Currently, a binding treaty on business and human rights is being debated by the UN Human Rights Council (Blichitz, 2016). Corporate involvement in such crimes is defined by two features. First, these crimes are committed by collective actors and as such are a collective enterprise. Second, and with the exception of the Holocaust-​related cases, corporations are rarely the main actor or perpetrator; they get involved in state-​corporate crime, along a continuum from commission to omission, and from state to private actors. While the globalization of business and the propagation of international law seem to have developed at about the same pace, corporations

33 

34 

Human Rights Watch. (2005). The Curse of Gold. Democratic Republic of Congo. New York. 2008 UN HRC Report.

The Involvement of Corporations in Atrocity Crimes    417 were found not equally prepared for the human rights challenges they were confronted with in the host states where they did business and where atrocity crimes were committed. In addition, these states and governments were also not prepared to monitor and enforce human rights compliance. Using data of more than 100 corporations being accused of involvement in atrocity crimes since World War II, we explored the historical framing of such involvement in the contexts in which these appeared: from Nazi Germany and the Nuremberg Trials, to Latin American dictatorships, Apartheid South Africa, and African resource wars to contemporary conflicts all over the world. In most cases, corporations are accused of involvement in multiple categories of atrocity crimes, with crimes against humanity and war crimes being the most common. In both categories, these are mainly unlawful killings, torture, and deprivation of liberty. The crimes are committed in host states suffering from armed conflict and/​or authoritarian regimes, in which the corporations operate or have business interests. Perpetrators are predominantly state actors (military or civil) or non-​governmental actors that have an interest in representing or safeguarding business interests, as this secures revenues and general support in their operations. The pathways of corporations into involvement in atrocity crimes are related to the nature of their business, the places where their business is found, and the specific type of support and revenues the corporation has to offer. It is in principle not in the interest of corporations to become engaged in atrocity crimes as the main actor; however, operating in a high-​risk conflict zone can lead to a slippery slope that ends in corporate involvement. We used the conceptual framework of crime script analysis to gain insights into the decision making and interaction between corporations and their environments. To this purpose we presented an in-​depth analysis of two contexts that epitomize the patterns of corporate involvement in atrocity crimes: Nazi Germany and the Holocaust, and the resource wars in the DRC. We find that a diverse range of companies is involved, ranging from small to large companies, and affecting a number of sectors, in particular regarding involvement in the Holocaust. Companies become involved according to widely differing rationales and decision-​making processes. Some aim at solving technical challenges and increasing innovative technology (presumably to retain market leadership), others at recovering assets and concessions, or securing the environment for their operations. Importantly, in both contexts, corporations underestimate potential losses and/​or overestimate rewards (see Franks et al., 2014). The two case studies demonstrate an intricate pattern of connections among the nature of the business, the nature of the crimes, and the types of decision making of the companies. Crime script analysis can also identity points of action suitable for regulatory intervention (Levi and Maguire, 2004, p. 429). This applies to prevention as well as intervention, and finally also accountability. The patterns that were identified in our analysis suggest a number of such points, ranging from regulatory intervention in home countries, to monitoring supply chains on the demand and supply sides. In fact, the patterns give some support to the range of regulatory tools that have been initiated (Ruggie, 2013) and the soft law alternatives that have been suggested.35 International and national prosecution is only one among a range of compliance tools, and it has not yet proven to be successful. 35 

2008 UN HRC Report.

418    Wim Huisman, Susanne Karstedt, and Annika van Baar Corporate involvement in atrocity crimes will remain a serious challenge for the international and global business community in the future.

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420    Wim Huisman, Susanne Karstedt, and Annika van Baar Karstedt, S. (2013) “Contextualizing Mass Atrocity Crimes: Moving Towards a Relational Approach.” Annual Review of Law and Social Sciences 9, pp. 383–​404. Karstedt, S. (2014) “Organizing Crime. The State as Agent.” In: Paoli, L. (ed.) Oxford Handbook of Organized Crime. Oxford: Oxford University Press, pp. 303–​320. Karstedt, S. (2015a) “Transnationale Unternehmen und Völkerstrafrecht: Kriminologische Perspektiven.” In: Jessberger, F., Kaleck, W., and Singelnstein, T. (eds.) Wirtschaftsvölkerstra frecht. Baden-​Baden: Nomos, pp. 159–​190. Karstedt, S. (2015b) “Managing Criminal Reputations. West German Elites after the Nuremberg Trials, 1946–​1960.” Journal of International Criminal Justice 13(4), pp. 723–​743. Kauzlarich, D., Mullins, C., and Matthews, R. (2003) “A Complicity Continuum of State Crime.” Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 6(3), pp. 241–​254. Kelly, M.J. (2016) Prosecuting Corporations for Genocide. Oxford: Oxford University Press. Kyriakakis, J. (2007) “Australian Prosecution of Corporations for International Crimes.” Journal of International Criminal Justice 5(4), pp. 809–​826. Lenahan, S. (2006). “Humanitarian and Security Challenges.” Northwestern University Journal of International Human Rights 5, pp. 340–​344. Levi, M., and Maguire, M. (2004) “Reducing and Preventing Organised Crime: An Evidence Based Approach.” Crime, Law & Social Change 41, pp. 397–​469. Le Billon, P. (2003) “Buying Peace or Fueling War: The Role of Corruption in Armed Conflicts.” Journal of International Development 15, pp. 413–​426. Lindner, S.H. (2008) Inside I.G. Farben: Hoechst during the Third Reich. New York: Cambridge University Press. Lord, N., Spencer, J., Bellotti, E., and Benson, K. (2017) “A Script Analysis of the Distribution of Counterfeit Alcohol across Two European Jurisdictions.” Trends in Organized Crime 20(3–​4), pp. 252–​272. McBeth, A. (2008) “Crushed by an Anvil: A Case Study on Responsibility for Human Rights in the Extractive Sector.” Yale Human Rights and Development Law Journal 11, pp. 127–​166. Michalowski, R.J., and Kramer, R.C. (eds.) (2006) State-​Corporate Crime: Wrongdoing at the Intersection of Business and Government. New Brunswick, NJ: Rutgers University Press. Michalowski, S. (ed.) (2013) Corporate Accountability in the Context of Transitional Justice. Abingdon: Routledge. Michalowski, S. (2015) “Doing Business with a Bad Actor: How to Draw the Line Between Legitimate Commercial Activities and those that Trigger Corporate Complicity Liability.” Texas International Law Journal 50 (3), pp. 403–​464. Nest, M., Grignon, F., and Kisangani, E.F. (2006) The Democratic Republic of Congo: Economic Dimensions of War and Peace. London: Lynne Rienner Publishers. Olsen, T.D., Payne, L.A., and Reiter, A.G. (2010) Transitional Justice in Balance. Comparing Processes, Weighing Efficacy. Washington D.C.: United States Institute of Peace Press. Overy, R.J. (2002) War and Economy in the Third Reich. New York: Oxford University Press. Pressac, J., and Pelt, R.V. (1994) “The Machinery of Mass Murder at Auschwitz.” In: Gutman, Y., and Berenbaum, M. (eds.) The Anatomy of the Auschwitz Death Camp. Bloomington: Indiana University Press, pp. 183–​245. Prosansky, B. (2007) “Mining Gold in a Conflict Zone: The Context, Ramifications and Lessons of AngloGold Ashanti’s Activities in the Democratic Republic of the Congo.” Northwestern Journal of International Human rights 5(2), pp. 236–​274. Ralph, N. (2017) Peacemaking and the Extractive Industries: Towards a Framework for Corporate Peace. London: Routledge.

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CHAPTER 18

The Role of t h e Stat e in Atro cit y C ri me s Christopher W. Mullins 1.  Introduction Episodes of mass atrocity crimes—​mass violence against an often disempowered or marginalized portion of the population—​are the worst examples of what humanity can, and will, do to itself. Laws prohibiting and punishing these acts are the core of international humanitarian law (IHL) and international criminal law (ICL) as embodied in the Rome Statute of the International Criminal Court.1 The 21st century has seen increased interest among international political bodies such as the United Nations (UN), non-​governmental organizations (NGOs), academics, and the general public in understanding, punishing, and preventing war crimes, crimes against humanity, and genocides. One key characteristic shared by many such episodes of atrocities is the central role of a nation-​state, or quasi-​state with an organized military, in planning, organizing, and executing such an event. Prominent genocide scholar Alexander Alverez (2010) has frequently noted that genocides do not just happen. While popular media depictions and interpretations often frame genocide as an “unexpected explosion” of “ethnic” violence being a result of long simmering tensions and hatreds, scholarship in numerous fields, such as criminology, political science, and sociology, establishes that genocides and other mass atrocity crimes are rather the result of intensive planning and coordination. They require massive human and material resources and the deployment of an ideological paradigm. Genocides, and other atrocity crimes, are the result of complex organizational dynamics which require substantial resource acquisition and deployment. Typically (though not without exception), the perpetration of a genocide, systematic war crimes, or crime against humanity, due the sheer scope of such events, requires the level of coordination and resource acquisition only found in the apparatus of a state. By the very nature of the state’s role in atrocity crimes, legitimacy of the violence is reinforced for perpetrators and bystanders (internal and external to the state) (Power, 1  Rome

Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 2002) 2187 UNTS 90 (Rome Statute).

424   Christopher W. Mullins 2002; Midlarsky, 2005; Mullins and Rothe, 2008; Alvarez, 2010). In addition, this role is reinforced by states’ powers to exert control over information availability and presentation. By the state, I am referring to the various apparatuses and actors within a governmental bureaucratic structure, including armed forces and nationalized law enforcement. This includes political leadership in legislatures, judicial, or executive offices. However, in mass atrocity violence, the managers and mid-​to-​low level body of employees that constitute the workforce within the government, or government-​allied industries, are often even more important than political leaders in carrying out the on-​the-​ground violence.2 By their nature, states are composed of a wide variety of organizations, each tasked with the accomplishment of specific, necessary tasks of governance. It is the essentially bureaucratic nature (see Weber 1984; Perrow 1986) of states that strongly facilitates atrocity events in numerous ways. Often, military or policing agencies are the most visible participants in genocide or crimes against humanity.3 Furthermore, by definition, war crimes tend to involve members of uniformed armed forces, though see those prosecuted by the International Military Tribunal (IMT) and Nuremberg Military Tribunal (NMT) for exceptions, including political actors, business leaders, and other non-​military actors (Bloxham, 2001; Heller, 2011). Procurement of resources, the movement of peoples and goods, and other essential actions are carried out across state agencies. It is a state’s overarching ability to coordinate activities across different organizations that enable episodes of atrocity violence. That said, atrocity events are not limited to state actors. One need look no further than mass violence committed by rebel or militia groups in Sierra Leone4 (Doria et al., 2010; Mitton, 2012; Stovel, 2010; Mullins, 2018) or the Democratic Republic of the Congo (Mullins and Rothe, 2008; Doria et al., 2010) for examples of non-​state actors committing atrocity violence.5 As military-​like organizations, such groups contain similar essential elements required to engage in massacres, systematic plunder and rape, and a host of other crimes that compose atrocity events. Compared with state-​led efforts, though, such episodes tend to be smaller in comparison, more geographically limited, and lack the ideological and political legitimacy of a state-​led event. The development of IHL and ICL and prosecutions of atrocity perpetrators have been largely driven by a conceptual focus on the state as a key actor. This is not surprising, as the actions of initial concern to IHL and ICL occur in the context of what is often seen as uniquely state behavior: the waging of international armed conflict. Yet, the nature of Western criminal law and its focus on individual actions and responsibility generates a model of behavior not directly applicable to actions engaged in by complex organizations such as state bureaucracies or military organizations. This situation has produced a search for legal mechanisms that are capable of addressing this unique complexity. One result is a focus of international prosecutions being on those deemed most responsible (TMR) for the actions over the on-​the-​ground perpetrators of the violence (Romano et al., 2004; Lutz and Reiger, 2009; Osiel, 2009). In fact, this is the stated goal, and self-​limitation, taken on by

2 

See also Chapter 10 in this volume by Rachel Jacobs and Scott Straus. See also Chapter 11 in this volume by Susanne Karstedt. 4  Sierra Leone Truth and Reconciliation Commission. (2004) Witness to the Truth: Final Report of the Sierra Truth and Reconciliation Commission. Accra: Graphic Packaging Ltd (Sierra Leone TRC 2004). 5  See also Chapter 16 in this volume by Uğur Ümit Üngör. 3 

The Role of the State in Atrocity Crimes    425 the International Criminal Court’s Office of the Prosecutor, though it has taken on varying levels of focus in other tribunals (Broomhall, 2003; Rothe and Mullins, 2006; Rhea, 2012). This approach reflects the reality of mass atrocity crimes often being spurned on, directed by, and resourced by individuals within positions of civil, military, and governmental authority. The legal doctrines of command responsibility, participation in a joint criminal enterprise, and indirect perpetration are an attempt to penetrate the layers of organizational distance that insulate TMR actors from hands on perpetrators (Osiel, 2009). Establishing the link between the crimes committed on the ground and TMR is often the chief challenge in adjudication of mass atrocity crime cases. Drawing on existing research, including case studies and multivariate large-​N statistical analyses, this chapter examines the unique role that the state plays in the planning and conduct of atrocity crimes—​primarily genocide, war crimes, and crimes against humanity. From here, the chapter explores how states frame and shape atrocity violence through their role in coordination of necessary capitals, access to human capital and to materiel, and its pivotal role in the generation and transmission of ideology.

2.  Coordination In contrast to the often-​vocalized notion that genocide and other atrocity crimes are spontaneous explosions of violence, close examination of different cases shows that such systematic violence can be coldly bureaucratic and planned, as was the case with the Holocaust (Bloxham, 2001, 2009; Bergen, 2009), the Holodomor (Conquest, 1986), and the Khmer Rouge’s reign (Chandler, 1999a, 1999b). Even less centrally controlled events such as the 1994 Rwandan Genocide or the atrocities committed by the Janjaweed in Darfur in the early 2000s require much coordination, some of which occurred within the state (Prunier 1995, 2008). Any complex activity, or desired end result, is constituted of a multitude of actions committed by numerous actors. Uniting the behavior of a manifold of individuals into a holistic activity requires a level of organization that in the modern era often takes the form of a bureaucratic enterprise (Weber, 1984): an organization which by its very nature formalizes, systematizes, and coordinates actions by members in order to produce a collective goal. Bureaucratic organizations are characterized by a rigid division of labor, hierarchical authority of responsibility and communication, and collective organizational identity. The very purpose of a bureaucracy is the coordination and control of the behavior of those who populate its offices. It also provides a locus of resource collection and distribution to ensure task accomplishment. Atrocity violence, like any other mass action, requires such coordination. Typically, though not exclusively, it is a state that possesses the organizational structure, the human and material resources, and the ideological legitimacy to orchestrate such endeavors. Being embedded within a large bureaucratic structure provides a strong measure of organizational distance between groups accomplishing different aspects of the violence. Such a physical, intellectual, and emotional disconnect provides ample cognitive space for a variety of neutralizations (see Sykes and Matza, 1957; Alvarez, 1997; Anderson, 2017; Bryant et al., 2018) in the minds of more distant actors. These distances formed the base of Adolf Eichmann’s criminal defense and are the foundation of Arendt’s (1963) banality of evil

426   Christopher W. Mullins thesis. Eichmann, a central organizer of the Holocaust responsible for planning and coordinating the rounding up and deportation of Jews in Germany and Eastern Europe, could claim, with a degree of truth, that he was running an organization that governed rail travel within German territories, that he did not order or directly carry out any killing. He was able to complete his daily work while being blind to the humans being transported within the trains he was scheduling. Bureaucratic neutrality and alienation, seen by some as a key advantage of complex organizations (Weber, 1984; Perrow, 1986), neuters the essence of the actions. Such operational “cover” can extend to relationships which might serve as controls on the state’s actions. The division of tasks across different organizations and organizational subunits allows small, but essential, processes to be hidden from the view of those inside and outside of the state that could act as control agents. For example, in the run-​up to the Rwandan Genocide of 1994, much of Rwanda’s governmental spending was constrained and supervised by its agreements with the World Bank, which was funding several development projects in the nation. Specifically, military expenditures were strongly regulated and watched, even with the ongoing civil war. Procurement of needed supplies for the genocide would be noticed if done via military budgets and channels. Instead, the state used monies within health care allotments to purchase vehicles, gasoline, and machetes all used in the killing (Prunier, 1995; Verwimp, 2006; Mullins and Rothe, 2008). Apparently, the accounting tricks worked, as no concern was raised within the World Bank about these expenditures; it seems those responsible within the Rwandan state correctly assumed that health care purchases would not be as closely examined as military ones. A key aspect necessary to coordination of activities is communication. State bureaucracy contains a built-​in communications infrastructure within and between governmental agencies, as well as non-​governmental groups such as political parties or private business interests. This entails both physical and digital infrastructure as well as a regulation of broadcast bandwidths. While fairly mundane in nature, much information must be internally relayed during the preparation for, and execution of, mass atrocities. Information dissemination requires a physical communication network, including but not limited to: telecommunications lines, relay towers, and devices; control and allotment of broadcast frequencies; individuals serving as points of communication; and other often unseen aspects. One final aspect of coordination warrants discussion. Weber (1984) highlights that bureaucracies in their daily functioning produce vast amounts of information, information which tends to get written into the internal organizational “files,” as Weber terms them. Internal coordination and control generate a vast account of organizational and individual activities both through intent (e.g., accounting records, performance evaluations, meeting agendas, memos) and as a byproduct (e.g., phone records, security information, and, in contemporary organizations, email and web activity). While the existence of this information provides a potential wealth of items of interest for those seeking to investigate and prosecute criminal activity, the organization completely controls archiving of and access to internally generated information (some of the above will also produce records external to the bureaucracy). The state cannot only limit knowledge of and access to this information, it can often destroy such files at will; this provides one of many built-​in veneers of secrecy within the state apparatus.

The Role of the State in Atrocity Crimes    427 A recent example of this control of files and information is a 2014 order to destroy archival data related to the Soviet Gulags of the twentieth century. Radio Free Europe reported that Gulag History Museum officials were instructed to destroy preserved registration cards for inmates who had reached the age of eighty years old, which would be all of them in 2014, thereby eliminating a complete record of those imprisoned in gulags or otherwise impacted by state-​committed atrocities.6 The Russian Interior Ministry responded to these reports by claiming records were destroyed only for those who had not been convicted of treason or other crimes against the state.7 Such acts impede future historical investigations into the crimes against humanity that were embodied in that prison system.

3.  Human Capital Carrying out mass atrocities requires massive manpower: people are needed to carry out the actual violence. Yet, the extent of human resources required is much larger. Activities of smaller groups need directing and coordination, requiring on-​the-​ground leadership as well as a level of middle management to coordinate smaller groups with directives issued higher in the organization. Broader goals need to be established and labor directed towards accomplishment—​this may entail the distribution of lists of people or communities to the appropriate participants in the mass atrocity violence event. Materiel (see below) needs to be obtained, transported, and directed to personnel. As discussed above, state bureaucracies, while not a necessary condition, are clearly a sufficient condition to produce genocide or other forms of mass atrocity violence. The people with the organization, not just the organization itself, are a crucial resource. Few organizations beyond states have control over the sheer number of people required to engage in atrocity violence or an existing bureaucratic apparatus to coordinate and control their behavior. A state’s military would, at first blush, appear to be an ideal locus of atrocity violence. The raison d’être of military organizations is the infliction of harm on people and property. Militaries have personnel trained in violence, attitudinally orientated towards the commission of violence, and the necessary command structure to execute a complex plan. They also have the equipment on hand in terms of vehicles and weapons, and often in the case of a uniformed state military, legitimacy in the eyes of the state’s citizenry. By definition, militaries are key perpetrators of war crimes, whether it is on the battlefield, in the case of the Japanese Imperial Army’s repeated slaughter of Chinese prisoners of war, or in detention and other non-​battlefield locales, such as the U.S. military use of torture at Abu Ghraib. However, other forms of atrocity crimes also frequently see military participation and facilitation. Many genocides were indeed predominantly led by a state military: the Germans

6  Radio Free Europe/​ Radio Liberty (2018) Gulag Museum Says Moscow Ordered “Catastrophic” Destruction of Documents. Available at: https://​www.rferl.org/​a/​gilag-​history-​museum-​says-​moscow-​ ordered-​catastrophic-​destruction-​prisoner-​records/​29281003.html (Accessed: September 17, 2019). 7  “Russian Ministry: Only Non-​Political Gulag Records Destroyed.” (2018) The Moscow Times, July 13. Available at: https://​www.themoscowtimes.com/​2018/​07/​13/​russian-​ministry-​only-​non-​political-​gulag-​ records-​destroyed-​a62231 (Accessed: September 17, 2019).

428   Christopher W. Mullins in Southwest Africa (the Herero and Nama) (Hull 2005; Schaller, 2013), the Turkish destruction of the Armenians (Balakian, 2003), Pakistani troops in Bangladesh (Jahan, 2013), Indonesians in East Timor (Linton, 2010; Dunn, 2013), state troops in Guatemala (Higonnet, 2009; Rodriguez-​Rescia, 2010), and Myanmar’s campaign against the Rohingya8 (Wheeler, 2017). Military forces have also played key roles in crimes against humanity, especially participating in post-​election violence as seen in Kenya and Cote D’Ivoire in the early 21st century (Bekoe, 2018; Hendrix and Salehyan, 2019).9 Many incidents of atrocity, however, were not primarily executed by a uniformed military, even in situations where a regular army was potentially available. While some uniformed troops of the Wehrmacht, and some units of the SS, participated in the Holocaust, it was also carried out by Einsatzgruppen and other security forces. In what circumstances would a state elect to not utilize their standing army, seemingly the most appropriate and available resource? If the violence is directed towards civilians in the context of an on-​going war, the formal armed services might become a less attractive mechanism. The troops are needed elsewhere to engage enemy forces, deploying them for citizen-​directed, noncombat-​related atrocities would be a drain on resources. In the wake of World War II, the use of such forces also fundamentally violates multiple extant international humanitarian and criminal laws. In some cases, such as Sudan’s genocides in Darfur and the Nuba Mountains, a sitting government seeks to obfuscate the nature and extent of its actions to outsiders. The al-​Bashir regime often denied any form of violence or displacement as occurring among peoples in Darfur and the Nuba Mountains. When the existence of the violence was acknowledged, the President, and his regime spokespersons, alternatively blamed rebels or bandits, as well as characterizing violence by state troops and militias against civilians as being directed toward said rebels or bandits (Gourevitch, 1998; Prunier, 2008; Totten, 2012). When regular army troops are not drawn upon, a state will frequently turn to militia groups to carry out atrocity violence (Alvarez, 2006). Some recent episodes of mass atrocities provide key examples of states using militia groups as a force multiplier. Militias free up the standing army for engaging hostile opposing forces, as well as add an accountability distance between the militia’s killers and those most responsible for the planning of the event. In Rwanda, much of the direct killing was committed by the Interahamwe, a locally organized militia group composed mostly of young, socially dislocated men. They were recruited, trained, and led by local leaders, both political and civilian (Prunier, 1995; Alvarez, 2006; Mullins and Rothe, 2008). Their local nature allowed mass numbers to be

8 

Human Rights Watch (2018) Bangladesh is Not My Country: The Plight of Rohingya Refugees from Myanmar. Available at: https://​www.hrw.org/​report/​2018/​08/​05/​bangladesh-​not-​my-​country/​plight-​ rohingya-​refugees-​myanmar (Accessed: September 17, 2019). 9  Human Rights Watch (2008) Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Government. Available at: https://​www.hrw.org/​report/​2008/​03/​16/​ballots-​bullets/​organized-​political-​ violence-​and-​kenyas-​crisis-​governance (Accessed: September 17, 2019); Human Rights Watch. (2011) “They Killed the Like it Was Nothing”: The Need for Justice for Cote D’Ivoire’s Post-​Election Crimes. Available at: https://​www.hrw.org/​report/​2011/​10/​05/​they-​killed-​them-​it-​was-​nothing/​need-​justice-​ cote-​divoires-​post-​election-​crimes (Accessed: 17 September 2019); Human Rights Watch (2017) “They were Men in Uniform”: Sexual Violence Against Women and Girls in Kenya’s 2017 Elections. Available at: https://​www.hrw.org/​report/​2017/​12/​14/​they-​were-​men-​uniform/​sexual-​violence-​against-​women-​ and-​girls-​kenyas-​2017 (Accessed: September 17, 2019).

The Role of the State in Atrocity Crimes    429 quickly and simultaneously deployed across the country at the onset of the genocide, often directed by the broadcasts of Radio Television Libre des Mille Collines (RTLM), which, while not a directly state-​controlled enterprise, was central in coordinating the genocide on the ground. Serbia is well known for the utilization of militias throughout the wars that characterized the collapse of the former Yugoslavia in the early 1990s. The Serbian regular army was engaged in a multi-​front war that had drawn a lot of international attention due to its geographic proximity to mainland Europe. Local paramilitary groups committed a great deal of the violence against civilians. Arkan’s Tigers, one of the more infamous groups, is an apt example. Arkan, or Zeljko Raznatovic, recruited men with experience in violence. A history as a successful bank robber gave him cachet and connections with street criminals, and his position as the manager of the fan club for Belgrade’s Red Star football team, gave him access to a group of hooligans known both for their violence and nationalism (Finlan, 2004; Alvarez, 2006). This militia and others were used to commit crimes against humanity and war crimes and harassed, unlawfully detained, physically and sexually assaulted, tortured, and killed civilians, especially Bosniaks. While the primary motivations of these militia groups may not have been ethnic hatred (Mueller, 2000), the manner in which they exploited the generally lawless environment coincided with broader objectives held by the state and its actors. In the Sudanese state of Darfur, the state hired and equipped the Janjaweed (Arabic for “man on horse”), a militia group which attacked villages, often with the purpose of displacing the population. This displacement was preceded by attacks that assaulted, raped, and murdered villagers, looted the desirable, transportable property, and burned everything else along with the village houses. The survivors were then herded toward internally displaced person (IDP) camps near the Chadian border. The Janjaweed had been operating in Sudan since the late 1980s and were, as Prunier (2008, p. 97) described them, “half-​way between being bandits and government thugs.” Like the Interahamwe, the Janjaweed membership was recruited from socially and economically displaced persons, especially young men. It was also composed of former soldiers, bandits, and criminals who were released if they agreed to join the militia. Like Arkan’s Tigers, these were men experienced with, and highly capable of, deploying violence. Omar al-​Bashir, the President of Sudan, would falsely attribute their violence to rebel or bandit groups, attempting to absolve his government of the responsibly in the eyes of the international community. Yet the opposite was true. The Janjaweed were paid salaries by the state, given army uniforms with rank and unit insignias, and their activity was coordinated with the regular army. The state army was then free to focus on its main concern—​the secessionist rebellion in the south (Prunier, 2008).

4.  Materiel Numerous forms of materiel are required to enact an atrocity crime. Simple or complex weapons are necessary, and typically in large quantities. Vehicles and fuel are essential to mobilize the perpetrators and to transport victims. Spaces and buildings are required for storage and staging areas. The acquisition of these items requires financial and human capital often available only to a state.

430   Christopher W. Mullins The expenses, and increasing scarcity, of munitions was a driving factor in Nazi Germany developing mass slaughter techniques that were not dependent on firearms. The Zyklon B–​based gas chambers was the infamous result when they emerged as a cheaper and more efficient way to exterminate large numbers of people. The organization of the death camps, especially the use of inmate labor in the destruction of the corpses, was done in a manner that minimized the manpower necessary to operate the camps, as well as added distance between the camp guards and the act of execution (Bergen, 2009; Bloxham, 2009). The extensive quantity of weapons needed to implement mass atrocity crimes is powerfully exhibited in the case of Rwanda. Most of the killing in the 1994 genocide was done face-​to-​ face with machetes (Prunier, 1995; Gourevitch, 1998; Verwimp, 2006; Mullins and Rothe, 2008). The ongoing threat of the Rwandan Patriotic Front (RPF) monopolized military forces and funds, and therefore, a different “strategy” and plan of action to implement a genocide was needed. Purchasing and distributing (primarily via the Interahamwe) the machetes was the cheapest and most efficient way to facilitate mass murder on the national scale. For example, in his analysis of mortality data in Kibuye prefecture, Verwimp (2006) found that approximately 53 percent of people were killed with a machete and another 17 percent by club (an easily obtainable weapon). Only 15 percent were killed by firearms, most being adult males. The remainder had an unknown cause of death (seven percent) by a wide variety of other means, mostly opportunistic weapons or techniques (e.g., spear, hoe, pickax, drowned, hung, etc.). There are numerous stories of Tutsi being herded into schools, stadiums, churches, and the like, and then being shot en masse, or trapped within while the structure was burnt. But most of the killing was done by hand. Transportation of people and materiel is essential to an atrocity enterprise. Simply, there is much that must be moved around, especially people. Again, few organizations other than states possess the resources to acquire and distribute vehicular means of transportation, or, in the case of the Holocaust, utilize a continental rail network. Careful examination of budgetary documents submitted to Bretton Woods organizations by the Rwandan government showed large transportation expenditures—​fuels and vehicles—​being claimed as medical expenses (Prunier, 1995). In Darfur, Sudan utilized aircrafts in many village attacks, especially large cargo planes and attack helicopters. A cargo plane, often painted to resemble a UN relief aircraft, would make a low pass over a targeted village; it would then bank around for another pass, where it would release crude cluster bombs (metal oil barrels filled with explosives and scrap) instead of the anticipated humanitarian supplies (Prunier, 2008; Rothe and Mullins, 2008; Hagan and Rymond-​Richmond, 2009). The assault and murder of large numbers of people require spaces necessary to contain such people. The Holocaust utilized ghettoes and camps, as did Serbian violence against Bosniaks. Bosnia and Rwanda both saw the use of sports stadiums as detention and execution locales. The Sudanese President Omar al-​Bashir’s indirect genocides typically involved driving populations into displaced persons camps (whether set up by the state or by NGOs) and then depriving those groups of resources (Prunier, 2008; Rothe and Mullins, 2008; Hagan and Rymond-​Richmond, 2009). Exposure to the elements, disease, and malnutrition are the most proximate causes of death in the camps; the environment itself is set up by the state, here the Sudanese state, and designed to foster such conditions and results. Scenarios such as this have played out many times in atrocity crime events, including the genocide of Herero in German South West Africa (Hull, 2005; Schaller, 2013), the war crimes and crimes against humanity committed against the Siouxan peoples on

The Role of the State in Atrocity Crimes    431 the U.S. high plains (Oehler, 1997; Grobsmith, 1981; Kehoe, 1989), the Holodomor in the Soviet-​dominated Ukraine (Conquest, 1986), the Andersonville prison established by the Confederacy during the United States Civil War (McPherson, 1988), and the Rohingya fleeing violence in Myanmar (Wheeler, 2017). Owning territorial space or being able to exert absolute control over such territories via state fiat is a key facilitator in mass atrocity crimes. This can extend to the ability to simply occupy and transform public communal spaces into spaces of slaughter. Being present and armed is often enough to assume control of a city plaza or a village center. As the testimonies before the Sierra Leone Truth and Reconciliation Commission10 demonstrate, the Revolutionary United Front (RUF), a key rebel group, and Civilian Defense Forces, local militias created by villagers for protection and later coopted by the Kabbah government, were frequently able to appropriate a village square as a site for war crimes and crimes against humanity—​killing, raping, torturing, and amputating the limbs of civilians in front of the entire community. Similar events happened frequently in Rwanda during the 100 days of genocidal slaughter. Tutsi would be called, or herded, into the town center, where selected individuals would face humiliation and dehumanization through sexual violence and assault, murder, and mutilation before the rest of their community (Mullins, 2009). Through raw displays of force, recourse to legitimate governmental authority, or both, public spaces are used not only as a practical location for atrocity to be committed but also work as symbolic terrain ensuring the community is a witness to its own attack and destruction. Calling a community to witness atrocity, if not to participate, increases terroristic impact and implicates the entire community, if only to reinforce its helplessness.

5.  Ideology The goals of atrocity violence can be self-​evident: the destruction of a mass of people with all expected consequences, suppression of political opposition, and/​or the generation of terror within a population. Yet only rarely is the violence carried out only for this purpose. There is often an additional symbolic motivation and impact of widespread violence: the eradication of a people, their culture, and their claim to physical and historical geographies. Additionally, in the wake of atrocity violence, the last memories or historical images of a destroyed people are those of a dehumanized collective, powerless to defend its people or community. Widespread torture, assault, rape, and murder are used to systematically strip a victimized people of their dignity and leave behind mutilated corpses and brutalized survivors who often find re-​integration back into a community difficult, if not impossible. Ideologies drive such events and are often reinforced and strengthened by their enactment. Specific worldviews, specific conceptualizations of humanity, and strong cognitive and linguistic exclusions of certain peoples from that conceptualization are central facets of atrocity violence. The role of ideology within atrocity events is multifaceted and deserves ample independent attention.11 In the context of this chapter, it is worthwhile to

10  11 

Sierra Leone TRC 2004. See also Chapter 9 in this volume by Jonathan Leader Maynard.

432   Christopher W. Mullins examine how the role of ideology, and a given ideology itself, is facilitated and empowered by the state. The weight of a state voice adds legitimacy to the core tenants of ideology, especially among those supportive of the state. When said ideologies are exclusionary in nature, they become a key predictor of genocide events, especially when co-​occurring with other predictors (see Harff, 2003). It is not uncommon for states to directly control media outlets, giving them the ability to disseminate various media messages directly to the population with no third-​party filter. When the state controls media, it controls the flow of information, which clearly affects the dissemination, or lack thereof, of information about a given event. State control of media allows a specific shaping of ideological messages and can strongly facilitate or encourage the stirring of nationalistic, or other violence-​motivating, sentiments. For example, Serbian state media played a large role during the collapse of the former Yugoslavia. It was a strong source of pro-​Serbian and anti-​Croat and anti-​Muslim discourse, even going so far as to broadcast filmed rapes, claiming they were instances of Muslim/​Bosniak men raping Serbian women, when in truth the films depicted the opposite: Serbian men raping Bosniak women in detention camps.12 Even where the state does not outright control media outlets, it can co-​opt it to spread and legitimate a message. During the run-​up to the Rwandan Genocide, the state did have official media outlets, especially Radio Rwanda. State radio was a nationwide vehicle for pro-​state but generally non-​partisan messages. However, content that was more expressly pro-​Hutu, and directly inciting genocide before and during the 100 days of killing in 1994, was broadcast by the private network Radio Television Libre des Mille Collines (RTLM, Free Radio and Television for a Thousand Hills). Bankrolled by well-​known Hutu Power supporter Felicien Kabuga (who also founded the daily newspaper Kangura), who would later be indicted by the International Criminal Tribunal for Rwanda (ICTR) for his role in inciting genocide via the promulgation of anti-​Tutsi propaganda, RTLM mixed popular music and radio skits with virulent propaganda, gaining a wide audience among young men (who would largely compose the Interahamwe). Many Hutu did not differentiate between state radio and RTLM, which strongly legitimized the rhetoric spread by RTLM. RTLM was infamous for delivering direct calls of incitement during the genocide itself, leading to multiple indictments by the ICTR (Pruiner, 1995; Gourevitch, 1998; Mullins and Rothe, 2008; Doria et al., 2010). Such broadcast media can develop and perpetuate motivation among (potential) perpetrators and provide justification for violence (see DellaVigna and Gentzkow, 2010; Yanagizawa-​Drott, 2014). Constant media discourses demonizing, otherizing, and accusing an entire people of crimes, or labeling them as threats and enemies, spreads and reinforces ethnicist tensions that are a vital aspect of many atrocity crimes. State-​controlled, and state-​ influenced, media is an obvious source of power and a highly useful tool in the dissemination and maintenance of the ideological elements necessary to undergird a genocide

12  Central Intelligence Agency (1993) Rape as an Instrumental of Ethnic Cleansing. Available at: https://​www.cia.gov/​library/​readingroom/​docs/​1993-​04-​02.pdf (Accessed: September 17, 2019); Human Rights Watch (1998) Bosnia and Hercegovina “A Closed, Dark Place”: Past and Present Human Rights Abuses in the Foca. Available at: https://​www.hrw.org/​report/​1998/​07/​01/​closed-​dark-​place/​past-​and-​ present-​human-​rights-​abuses-​foca (Accessed: September 17, 2019).

The Role of the State in Atrocity Crimes    433 (Harff 1987, 2003) or other form of mass violence directed at a minority population. State communications reinforce destructive ideas and visions in the minds of those who already adopt them. Frequent broadcasting can lead to various degrees of ideological adoption simply through repeated exposure, especially when reinforced by local elites or leaders (Katz and Lazarfeld, 1955; DellaVigna and Gentzkow, 2010). Consistent state reification of lethal ideologies can also generate pluralistic ignorance (see Katz and Allport, 1931; Warner and Burchfield, 2011) among those who may reject or oppose the ideas, splintering community cohesion. An individual’s understandings of the specific values and attitudes held by neighbors is imperfect at best and highly distorted at worst. Community members often come to believe their core values and beliefs are not held by others in their immediate social surroundings, regardless of the actual composition of communal values. This gap between perception and reality can be widened if a given set of ideological values is routinely transmitted by the state or its allied actors. Pluralistic ignorance suppresses inter-​neighbor communications and undermines a community’s collective efficacy (Sampson et al., 1997). Thus, internal resistance to the state’s deployment of mass violence is reduced. The state’s resources give its propaganda further reach and legitimacy. Unlike private groups or media outlets, the state has the power and resources to back up speech with violence. Controlling media and other information sources often serves to provide “cover” with the domestic and international communities regarding knowledge of the episodes of mass atrocity and their true nature. Early during the Darfur situation, Sudanese President Omar al-​Bashir was able to continually manipulate the information the outside world received about the events in the west of the country (Prunier, 2008). This made his claims that the state-​directed violence was a response to rebel groups in the region more difficult to dispute. Sudan had been plagued by an on-​again, off-​again civil war for years; there were documented active resistance (if not outright rebel) groups in Darfur. Being able to monopolize information allowed the situation in Darfur to progress long past the point that even concerted international attention could not do much to save lives or deter the state from its goals of displacement and eradication. While the atrocities did eventually become the focus of global attention, it was only long after most targeted tribal communities had been destroyed and the survivors were interred within or headed toward internally displaced people’s camps at the Chadian border (Hagan and Rymond-​Richmond, 2009). This same strategy, along with the international attention that eventually did come to Darfur, allowed the genocide against the Nuba people in southern Sudan to occur with next to no regional or global attention (see Totten, 2012). A state’s ability to control the news coverage of atrocities is key for both internal and external audiences. While it is increasingly difficult in the current era to control all forms of communication within a state (yet, see North Korea as an exception), several 20th-​century cases highlight the ability of a state to manipulate knowledge of an event. The Holodomor exhibits the USSR’s ability to absolutely control what information got into and out of the Ukraine during the terror-​famine. In response to peasant resistance to Soviet agricultural collectivization, both national and local political entities controlled the flow of people and information to allow the imposition of a state-​created famine on the region designed to both punish and suppress resistance. The Ukrainian farmers who were literally worked to death did not know that while their communities were suffering under an engineered famine in the early 1930s, the rest of the USSR was experiencing lush and rich harvests with ample surpluses. The USSR prevented out-​migration through settlement policies refusing such

434   Christopher W. Mullins relocations, and by instituting policies outside of the region that ordered jobs be denied to those of Ukrainian origin. What little information that did leak out of the region was colored via administrative construction of a non-​extant class of peoples, the Kulak, and the supposed Kulak exploitation of other peasants and resistance to the state (Conquest, 1986). Casting this as yet another of many struggles against an empowered bourgeoise was designed to dismiss and diminish concerns which may arise among non-​Ukrainian citizens. With little knowledge of these events outside of the immediate area, the Stalin regime was able to starve or deport to the Asian arctic millions of people (Conquest, 1986; Mace, 2013). A similar absence of information surrounded the reign of the Khmer Rouge in Cambodia. As a consequence of Pol Pot’s notion of Independence-​Mastery—​the notion that Cambodia was to be totally free of dependency ties to all other nations and peoples—​next to no information about what was happening within the nation escaped into the world. The Khmer Rouge communicated little with the outside world. In one of the few instances of allowing an outsider into the country, Khmer leadership allowed Malcolm Caldwell entry to the nation and gave him a choreographed tour of the country which, despite Caldwell’s strong support for the regime, ended with his murder as well as the torture and execution of the Cambodian guard detail assigned to him. Similarly, the government kept a tight control on information within the country itself, especially that concerning the operation of S-​21, the facility which imprisoned, tortured, compelled confessions from, and executed those deemed enemies of the regime (Chandler, 1999a, 1999b). Such a total control of information is something that can only be managed by a state entity. A state’s power to disseminate ideology and control the flow of information is a crucial element in an atrocity crime. Manipulating what information is dispersed about a given event, how those acts are framed and depicted, and what, if any, counter images or voices are aired is crucial in influencing the responses of populations within the state’s territory. It can also shape international perceptions and opinions.

6.  Quasi-​state Groups and Atrocity While typically state-​level organization and access to human and material resources is a necessary condition for atrocity violence, we have seen exceptions, typically during protracted civil war with multiple participants. Atrocity crimes of all stripes, however, are often facilitated by a state, either indirectly or directly. Scholars of state crime have long noted the role states can play in criminal events through their inaction, be that inaction is an intentional dereliction of duty or the product of unintended consequences of other state actions, or simple state incompetency or lack of control (Friedrichs, 1998; Kauzlarich et al., 2003; Kramer and Michalowski, 2005; Rothe, 2009). Relatively recent or currently ongoing events, such as the Sierra Leone civil war in the 1990s or ongoing protracted conflict in the Democratic Republic of the Congo, exhibit widespread atrocity violence committed by multiple belligerent parties, most of which are not states or state-​level organizations. Both of these conflicts stand out as having weak states unable to control all of their putative territories and multiple parties with differing motivations and end goals. Here, the legal anarchy produced by protracted war in these geographies—​the inability of the state to monopolize violence, structured and unstructured—​both provides

The Role of the State in Atrocity Crimes    435 opportunity for and facilitates the commission of atrocity violence. Here atrocity happens because a state fails in its primary functions (Prunier, 2009; MacKenzie, 2012; Mitton, 2012). Other situations see atrocity arise out of a willful negligence, an intentional inaction on behalf of a state. A key example of this is the Russian Federation facilitating ethnic cleansing of ethnic Georgians in South Ossetia during the brief 2008 Russia-​Georgia war. With the Georgian state troops engaged with Russian forces around the capital of Tbilisi, the state was unable to exercise control or authority in the breakaway region of South Ossetia. Further, the presence of Russian regular army in South Ossetia created a situation allowing South Ossetian militias to assault, forcibly displace, and destroy the residences of ethnic Georgians in the province; more than 30 villages were eradicated (Mullins, 2011).13 The local militias were encouraged by the Russian troops, who were repeatedly observed to be on site during many village destructions. Also, the Russian Federation fabricated media reports before and during the armed action, claiming that Georgians were engaged in a genocide of South Ossetins, which further enflamed sentiments and tensions. Russia maintained operational control of the area long after the hostilities ended. These events, while not directly carried out by Russian forces, were clearly facilitated by Russia’s direct intervention in the territories and on-​the-​ground presence, which gave license to local irregular militias to commit atrocity (Mullins, 2011).14 While states are often the key driver of atrocity crimes, the legal anarchy created by war or state collapse often provides non-​state groups the opportunity, by invitation or not, to utilize the lawless state for their own ends, whether or not such ends mirror the objectives of the state. As Mueller (2000) highlighted in his discussion of militia violence in the former Yugoslavia and Rwanda, many of the perpetrators of atrocity violence are not driven by specific ethnic-​hatred or nationalism but rather by their own, often idiosyncratic, motivations. These groups seemingly have more in common with street gangs or other forms of organized criminal groups than they do with military organizations. Yet they can account for a largely disproportionate amount of violent instances committed during an atrocity crime.

7.  Conclusion All too often, atrocity crimes are depicted as irrational, organic explosions of deep-​seeded hate produced in “time immemorial.” Such a framing, whether done in the mainstream media or via political discourses or human rights discourses, encourages a lack of understanding of atrocity violence. It sends the message that atrocity crimes are ultimately not understandable, which means they are neither predictable nor preventable. They need not be studied, as we cannot rationally and systematically understand “madness” and “evil” in a 13 

Human Rights Watch (2009) Up In Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia. New York: Human Rights Watch. Available at: https://​www.hrw.org/​report/​ 2009/​01/​23/​flames/​humanitarian-​law-​violations-​and-​civilian-​victims-​conflict-​over-​south (Accessed: September 17, 2019); Organization for Security and Cooperation in Europe (OSCE) (2008) Human Rights in the War-​Affected Areas Following the Conflict in Georgia. Available at: https://​www.osce.org/​ odihr/​35578?download=true (Accessed: September 17, 2019) (OSCE 2008). 14  OSCE 2008.

436   Christopher W. Mullins normal manner. Yet, none of these assumptions are true. Atrocity events do not just happen, they require massive organizational commitment of human and materiel resources. They are driven by known and identifiable factors which become highly visible due to the public-​ ideological nature of one part of the state’s role in framing and producing episodes. Such crimes require a large investment in resources and are a massive undertaking involving extraordinary levels of coordination and control of human capital. Genocides, crimes against humanity, and most systematic war crimes are often possible with the resources available only to a state. States become organs for the legitimation and transmission of murderous ideologies of supremacy which undergird atrocity violence; they draw upon their own sovereignty to justify and protect their actions. In light of the abject failure of the International Court of Justice, the UN, and other global authorities to punish and prevent state crimes in general, and the commission of atrocity violence in particular, much of international criminal justice has focused on individual actors—​those most responsible for the orchestration and commission of atrocity violence. The ad hoc tribunals and the International Criminal Court represent the strongest coordinated attempt to enforce and adjudicate international humanitarian and criminal law, hopefully bringing both justice for and deterrence of future atrocity events. While prosecuting (former and sitting) state representatives at international courts is highly laudable for multiple reasons, the inability of extant legal mechanisms to effectively address the criminality of states themselves as states has necessitated such approaches within the application and adjudication of legal responsibility. Academic, and other, attempts to more fully present narratives and promulgate understandings of mass atrocity events must not lose sight of the central role and responsibility of the state in the creation of such phenomena.

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The Role of the State in Atrocity Crimes    437 Broomhall, B. (2003) International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press. Browning, C. (1998) Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland. New York: Harper Collins. Bryant, E., Schimke, E.B., Nyseth Brehm, H., and Uggin, C. (2018) “Techniques of Neutralization and Identity Work among Accused Genocide Perpetrators.” Social Problems 65(4), pp. 584–​602. Chandler, D. (1999a) Brother Number One: A Political Biography of Pol Pot. New York: Avalon. Chandler, D. (1999b) Voices from S-​21: Terror and History of Pol Pot’s Secret Prison. Berkeley: University of California Press. Conquest, R. (1986) The Harvest of Sorrow: Soviet Collectivization and the Terror Famine. New York: Oxford University Press. DellaVigna, S., and Gentzkow, M. (2010) “Persuasion: Empirical Evidence.” Annual Review of Economics 2, pp. 643–​669. Doria, J., Rothe, D.L., Mullins, C.W., and Jenkins, C. (2010) “Africa.” In: Bassiouni, M.C. (ed.) The Pursuit of Internal Criminal Justice: A World Study on Conflicts, Victimization, and Post-​ Conflict Justice. Volume 2. Antwerp: Intersentia, pp. 357–​511. Dunn, J. (2013) “Genocide in East Timor.” In: Totten, S., and Parsons, W.S. (eds.) Centuries of Genocide: Essays and Eyewitness Accounts. New York: Routledge, pp. 279–​316. Finlan, A. (2004) The Collapse of Yugoslavia: 1991–​1999. Oxford: Osprey Publishing. Friedrichs, D.O. (1998) State Crimes: Volumes I and II. Aldershot: Ashgate/​Dartmouth. Gourevitch, P. (1998) We Wish to Inform You that Tomorrow We Will Be Killed with Our Families: Stories from Rwanda. New York: Farrar, Straus, and Giroux. Grobsmith, E.S. (1981) Lakota of the Rosebud: A Contemporary Ethnography. Fort Worth, TX: Harcourt, Brace, Jovanovich. Hagan, J., and Rymond-​Richmond, W. (2009) Darfur and the Crime of Genocide. Cambridge: Cambridge University Press. Harff, B. (1987) “The Etiology of Genocide.” In: Dobkowski, M.N., and Wallimann, I. (eds.) The Age of Genocide. Westport, CT: Greenwood Press, pp. 41–​59. Harff, B. (2003) “No Lesson Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955.” American Political Science Review 97(1), pp. 57–​73. Heller, K.J. (2011) The Nuremberg Military Tribunals and the Origins of International Criminal Law. New York: Oxford University Press. Hendrix, C.S., and Salehyan, I. (2019) “Ethnicity, Nonviolent Protest, and Lethal Repression in Africa.” Journal of Peace Research 56(4), pp. 469–​484. Higonnet, E. (2009) Quiet Genocide: Guatemala 1981–​1983. New Brunswick, NJ: Transaction Publishers. Hull, I.V. (2005) Absolute Destruction: Military Culture and the Practices of War in Imperial Germany. Ithaca, NY: Cornell University Press. Jahan, R. (2013) “Genocide in Bangladesh.” In: Totten, S., and Parsons, W.S. (eds.) Centuries of Genocide: Essays and Eyewitness Accounts. New York: Routledge, pp. 249–​278. Katz, D., and Allport, F.H. (1931) Student Attitudes. Syracuse, NY: Craftsman Press. Katz, E., and Lazarsfeld, F.P. (1955) Personal Influence: The Part Played by People in the Flow of Mass Communications. Glencoe, IL: Free Press. Kauzlarich, D., Mullins, C.W., and Matthews, R. (2003) “A Complicity Continuum of State Crime.” Contemporary Justice Review 6(3), pp. 241–​245.

438   Christopher W. Mullins Kehoe, A.B. (1989) The Ghost Dance: Ethnohistory and Revitalization. Fort Worth, TX: Holt, Rinehart, and Winston. Kramer, R., and Michalowski, R. (2005) “War, Aggression, and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq.” British Journal of Criminology 45(4), pp. 446–​469. Linton, S. (2010) “Asia.” In: Bassiouni, M.C. (ed.) The Pursuit of Internal Criminal Justice: A World Study on Conflicts, Victimization, and Post-​Conflict Justice. Volume 2. Antwerp: Intersentia, pp. 515–​752. Lutz, E.L., and Reiger, C. (2009) Prosecuting Heads of State. Cambridge: Cambridge University Press. Mace, J.E. (2013) “Soviet Man-​Made Famine in Ukraine.” In: Totten, S. and Parsons, W.S. (eds.) Centuries of Genocide: Essays and Eyewitness Accounts. New York: Routledge, pp. 157–​190. MacKenzie, M.H. (2012) Female Soldiers in Sierra Leone: Sex, Security, and Post-​Conflict Development. New York: New York University Press. McPherson, J.M. (1988) Battle Cry of Freedom: The Civil War Era. Oxford: Oxford University Press. Midlarsky, M. (2005) The Killing Trap: Genocide in the Twentieth Century. Cambridge: Cambridge University Press. Mitton, K. (2012) “Irrational Actors and the Process of Brutalization: Understanding Atrocity in the Sierra Leonean Conflict (1991–​2002).” Civil Wars 14(1), pp. 104–​122. Mueller, J. (2000) “The Banality of ‘Ethnic War.’” International Security 25(1), pp. 42–​70. Mullins, C.W. (2009) “‘We Are Going to Rape You and Taste Tutsi Women’: Rape During the 1994 Rwandan Genocide.” The British Journal of Criminology 49(6), pp. 719–​735. Mullins, C.W. (2011) “War Crimes in the 2008 Georgia-​Russia Conflict.” The British Journal of Criminology 51(6), pp. 918–​936. Mullins, C.W. (2018) “Variations in War Crimes during the Sierra Leonian Civil War.” Paper presented to the American Society of Criminology. Atlanta, GA. November 2018. Mullins, C.W., and Rothe, D.L. (2008) Blood, Power, and Bedlam: Violations of International Criminal Law in Post-​Colonial Africa. New York: Peter Lang Press. Oehler, C.M. (1997) The Great Sioux Uprising. New York: Da Capo Press. Osiel, M. (2009) Making Sense of Mass Atrocity. New York: Cambridge University Press. Perrow, C. (1986) Complex Organizations: A Critical Essay. 3rd edition. New York: McGraw-​Hill. Power, S. (2002) “A Problem from Hell”: America and the Age of Genocide. New York: Harper Perennial. Prunier, G. (1995) The Rwanda Crisis: History of a Genocide. New York: Columbia University Press. Prunier, G. (2008) Darfur: A 21st Century Genocide. Ithaca, NY: Cornell University Press. Prunier, G. (2009) Africa’s World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe. Oxford: Oxford University Press. Rhea, H.M. (2012) The United States and International Criminal Tribunals: An Introduction. Cambridge: Intersentia. Rodriguez-​Rescia, V. (2010) “Central and South America.” In: Bassiouni, M.C. (ed.) The Pursuit of Internal Criminal Justice: A World Study on Conflicts, Victimization, and Post-​ Conflict Justice. Volume 2. Antwerp: Intersentia, pp. 171–​302. Romano, C.P.R., Nollkaemper, A., and Kleffner, J.K. (eds.) (2004) Internationalized Criminal Courts: Sierra Leone, East Timor, Kosonvo, and Cambodia. Oxford: Oxford University Press.

The Role of the State in Atrocity Crimes    439 Rothe, D.L. (2009) State Criminality: The Crime of All Crimes. Lanham, MD: Roman and Littlefield. Rothe, D., and Mullins, C.W. (2006) The International Criminal Court: Symbolic Gestures and the Generation of Global Social Control. Lanham, MD: Lexington Books. Sampson, R., Raudenbush, S., and Earls, F. (1997) “Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy.” Science 277(5328), pp. 918–​924. Schaller, D.J. (2013) “The Genocide of the Herero and Nama in German South-​West Africa, 1940–​1907.” In: Totten, S. and Parsons, W.S. (eds.) Centuries of Genocide: Essays and Eyewitness Accounts. New York: Routledge, pp. 89–​116. Stovel, L. (2010) Long Road Home: Building Reconciliation and Trust in Post-​War Sierra Leone. Antwerp: Intersentia. Sykes, G.M., and Matza, D. (1957) “Techniques of Neutralization: A Theory of Delinquency.” American Sociological Review 22, pp. 664–​670. Totten, S. (2012) Genocide by Attrition: The Nuba Mountains of Sudan. New Brunswick, NJ: Transaction. Verwimp, P. (2006) “Machetes and Forearms: The Organization of Massacres in Rwanda.” Journal of Peace Research 43(1), pp. 5–​22. Warner, B.D., and Burchfield, K. (2011) “Misperceived Neighborhood Values and Informal Social Control.” Justice Quarterly 28(4), pp. 606–​630. Weber, M. (1984) “Bureaucracy.” In: Fischer, F., and Sirianni, C. (eds.) Critical Studies in Organization and Bureaucracy. Philadelphia: 4–​19. Wheeler, S. (2017) “All of My Body Was Pain”: Sexual Violence against Rohingya Women and Girls in Burma. Available at: https://​www.hrw.org/​report/​2017/​11/​16/​all-​my-​body-​was-​ pain/​sexual-​violence-​against-​rohingya-​women-​and-​girls-​burma (Accessed: September 17, 2019). Yanagizawa-​ Drott, D. (2014) “Propaganda and Conflict: Evidence from the Rwandan Genocide.” Quarterly Journal of Economics 129(4), pp. 1947–​1994.

CHAPTER 19

The Internat i ona l C omm u nit y a nd Atro cit y C ri me s The Responsibility to Protect Alex J. Bellamy 1.  Introduction Stemming from the horrors of Rwanda, where more than 800,000 people were slaughtered in the 1994 genocide, and Srebrenica, where, a year later, over 8,000 men and boys were taken from a United Nations (UN) “safe area” and killed by Bosnian Serb forces, the responsibility to protect (R2P) is a disarmingly simple idea. It holds that sovereign states have a responsibility to protect their own populations from four crimes that indisputably shock the conscience of humanity: genocide, war crimes, ethnic cleansing, and crimes against humanity. It requires that the international community encourages and assists individual states to fulfil their responsibility, because some states lack the physical capacity and resources of legitimacy needed to protect their populations from these crimes. Finally, R2P says that when states are “manifestly failing” to protect their populations from these four crimes, whether through lack of capacity or will or as a result of deliberate intent, the international community should respond in a “timely and decisive” fashion with diplomatic, humanitarian, and other peaceful means, and, failing that, with all the tools that are available to the United Nations Security Council.1 This response can include the use of military force, which is sometimes a tragic necessity. R2P calls specifically for the prevention of the four crimes and—​significantly—​their incitement. These are the three pillars of the responsibility to protect: (1) the primary responsibility of the state to protect its own population from genocide, war crimes, ethnic cleansing, and crimes against humanity; (2) the international community’s duty to assist; and (3) the international responsibility to take timely and decisive action to protect populations from

1 

United Nations (2005) World Summit Outcome. General Assembly Resolution 60/​1, 24 October.

442   Alex J. Bellamy atrocity crimes. The principle is a simple one; it is the politics that surround it and the challenge of realizing its ambition in practice that are so difficult. This chapter examines the evolution of R2P and the evolution of questions surrounding the international community’s responsibility for preventing atrocity crimes and protecting vulnerable populations. It proceeds in three parts. The first provides a brief overview of the emergence and evolution of R2P. The second examines the allocation of responsibility under R2P and shows how R2P relates to, and builds upon, existing legal obligations. The third considers a significant gray area in the framework developed by R2P: the protection responsibilities of non-​state armed groups.

2.  Responsibility to Protect: A Brief Overview The phrase “responsibility to protect”—​R2P—​was first coined in 2001 by the inelegantly titled International Commission on Intervention and State Sovereignty (ICISS),2 a group of retired politicians, diplomats, and humanitarians chaired by former Australian Foreign Minister Gareth Evans and highly respected former Algerian diplomat Mohammed Sahnoun. The Commission was tasked by the Canadian government with the job of reconciling the tensions between state sovereignty and humanitarian necessity made abundantly obvious by NATO’s 1999 intervention in Kosovo. Specifically, the Canadian government asked the Commission to find a way of avoiding repetitions of, on the one hand, cases like the 1994 Rwandan Genocide, where the world stood aside and did nothing as 800,000 people were butchered in just 100 days, and, on the other hand, cases like Kosovo, where a group of states took it upon themselves to use force to protect people without a mandate from the UN Security Council. The Commission’s answer came in the form of R2P—​a call for a shift away from sterile debates about the prerogatives of interveners and inalienable rights of sovereigns and toward a focus on protection for vulnerable populations and the responsibilities of individual governments and the international community as a whole.3 It argued that there was a duty to prevent as well as to respond to these crimes and maintained that armed intervention should be reserved for the most severe cases and guided by a set of prudential criteria drawn from the Christian “just war” tradition. This guide would ensure that force would only be used for the right reasons and only when likely to do more good than harm. R2P, Ramesh Thakur (2016, p. 417) explains, was “the ICISS answer to reconciling the neuralgic rejection of humanitarian intervention by the global South with the determination by the North to end atrocities.” The journey of translating R2P from idea to political principle and diplomatic practice began with former UN Secretary-​General Kofi Annan. Annan (2012, p. 118) welcomed the

2 International Commission on Intervention and State Sovereignty. (2001) The Responsibility to Protect. Ottawa: IDRC (ICISS 2001). 3  ICISS 2001.

The International Community and Atrocity Crimes    443 advent of R2P, describing it in his memoir as “a brilliant innovation.” He judged that by reframing debates about how the world should respond to mass atrocities and focusing on the responsibilities associated with sovereignty, R2P held the promise of reconciling two fundamental principles of the UN Charter that had all too often worked to opposite ends: state sovereignty and the protection of fundamental human rights (Annan, 2012, p. 118). The opportunity to elevate R2P from intellectual curiosity to international diplomacy came in 2004. With the UN besieged by a neo-​conservative administration in the United States, hamstrung by a membership deeply divided by the U.S.-​led invasion of Iraq, and engulfed in the oil-​for-​food scandal, Annan decided to promote debate about broad-​ sweeping UN reforms. In preparation for what became known as the World Summit, Annan commissioned a High Level Panel to review options for reforming the UN. The Panel called for the adoption of R2P as a guiding principle.4 When Kofi Annan included the Panel’s recommendations on R2P in his own blueprint for UN reform, a report entitled In Larger Freedom, the idea was placed squarely on the international agenda (Annan, 2005). In September 2005, more than 150 heads of state and government—​the largest ever gathering at this level—​arrived in New York to conclude negotiations on a blueprint for UN reform. In paragraphs 138 and 139 of the World Summit’s Outcome Document, subsequently adopted as a General Assembly resolution, the UN’s member states committed themselves to R2P and its three pillars. This commitment was subsequently reaffirmed by the Security Council, including in Resolution 16745 (2006), Resolution 18946 (2009), Resolution 21717 (2014), and Resolution 22208 (2015), among others. In 2008, the UN Secretary-​General appointed a Special Adviser for R2P to work alongside his Special Adviser for the Prevention of Genocide in a new joint office of Genocide Prevention and R2P. In 2009, the General Assembly passed a unanimous resolution in which it pledged to continue its consideration of the implementation of R2P. Since then, there has been an annual cycle of reports by the UN Secretary-​General on R2P and informal General Assembly dialogues. In 2017, the General Assembly decided to elevate R2P to its formal agenda and did so again the following year. Meanwhile, in Geneva, the UN’s Human Rights Council has adopted more than 25 resolutions referencing R2P. Since 2005, therefore, R2P has become part of the diplomatic language used, albeit unevenly and with patchy results, to prevent and respond to atrocity crimes. The practical use of R2P got off to a slow and discouraging start. In the almost five years between Security Council Resolution 16539 (2006)—​the Security Council’s first reference to R2P—​and Resolution 197310 on Libya (2011) —​the Council’s first authorization of the use of force in a resolution referencing the principle—​the Council referred to the principle only twice. These references came in a thematic resolution on the protection of civilians (Resolution 167411 (2006) and

4  High

Level Panel on Threats, Challenges and Change. (2004) A More Secure World: Our Shared Responsibility. A/​59/​565, pp. 65–​66. 5  UNSC Res 1674 (28 April 2006) UN Doc S/​RES/​1674. 6  UNSC Res 1894 (11 November 2009) UN Doc S/​RES/​1894. 7  UNSC Res 2171 (21 August 2014) UN Doc S/​RES/​2171. 8  UNSC Res 2220 (22 May 2015) UN Doc S/​RES/​2220. 9  UNSC Res 1653 (27 January 2006) UN Doc S/​RES/​1653. 10  UNSC Res 1973 (17 March 2011) UN Doc S/​RES/​1973. 11  UNSC Res 1674 (28 April 2006) UN Doc S/​RES/​1674.

444   Alex J. Bellamy a highly contentious preambular paragraph in Resolution 170612 (2006) on the situation in Darfur, where Sudanese government forces and their notorious allies the Janjaweed militia had let rip a reign of terror, resulting in the deaths of at least 200,000 people and forced displacement of over two million more. Several Council members were cautious about the inclusion of R2P in the resolution (China abstained) and about the diplomatic pressure that was brought to bear to secure the reference to R2P. The diplomatic victory over the passage of Resolution 1706 was pyrrhic, as the peacekeeping mission it envisaged was never deployed. With the UN and its member states so hesitant to implement their 2005 commitment to R2P, few—​if any—​anticipated the role that the principle would play in the dramatic events of 2011. In February 2011, the Arab Spring reached Libya. Protests there quickly turned into a major uprising that threatened to topple the dictator Muammar Gaddafi, who had ruled with an iron fist for over 40 years. Gaddafi’s forces responded to the challenge with typical brutality, and the Libyan leader issued chilling threats of retribution reminiscent of the terms used to incite the Rwandan Genocide nearly 20 years earlier. The following month, in March 2011, the Security Council responded to the unfolding crisis by throwing almost its entire portfolio of preventive measures at the situation in Libya in Resolution 1970.13 When the Gaddafi regime failed to comply with the Council’s demands and looked likely to topple the rebel stronghold of Benghazi and commit a massacre there, the Council took the unprecedented step of authorizing the use of force against a state to protect civilians from imminent danger, enforcing a no-​fly zone, and enforcing an arms embargo (Resolution 1973).14 NATO and its allies hastily arranged a coalition of the willing, which prevented the fall of Benghazi and the widely anticipated massacre. The conflict dragged on into a stalemate, but eventually the regime collapsed, and Gaddafi was killed by rebels, provoking a new storm of controversy. A few days after the adoption of its landmark resolution on Libya, the Security Council unanimously adopted Resolution 197515 on Côte d’Ivoire. Having lost an election, the country’s now former president, Laurent Gbagbo, refused to step down. Following the advice of international election monitors, the Council declared Alassane Ouattara to be the country’s president and authorized the use of force to protect the civilian population. UN forces already stationed in Côte d’Ivoire, as part of the UN Operation in Côte d’Ivoire (UNOCI) deployed to oversee an end to the country’s civil war and transition to a new, democratic government, acted alongside French forces to stop the escalating violence, remove Gbagbo, and allow the elected president to take his place at the head of the new government. The Council’s responses to the crises in Libya and Côte d’Ivoire demonstrated a newly found determination to act on the responsibility to protect populations from atrocity crimes, including through the use of force when necessary. However, the responses proved highly controversial. Critics complained that NATO and the UN had overstepped their mandates by contributing to regime change, that they had used disproportionate force, which increased civilian casualties, and that they had ignored or outright rejected opportunities

12 

UNSC Res 1706 (31 August 2006) UN Doc S/​RES/​1706. UNSC Res 1970 (26 February 2011) UN Doc S/​RES/​1970. 14  UNSC Res 1973 (17 March 2011) UN Doc S/​RES/​1973. 15  UNSC Res 1975 (30 March 2011) UN Doc S/​RES/​1975. 13 

The International Community and Atrocity Crimes    445 for further political dialogue (e.g., Ulfstein and Christiansen, 2013). Russia, in particular, argued that the Libyan experience partially motivated its actions in the subsequent crisis in Syria, pushing Moscow to resist Western pressure on the al-​Assad regime on the grounds that it might open the door to forced regime change (Allison, 2013). Although the Council has indeed been deadlocked on Syria and has failed to respond adequately to a crisis which resulted in the deaths of more than 500,000 people and forced in excess of four million people from their homes between 2011 and 2019, controversies about the implementation of protection mandates in Libya and Côte d’Ivoire did not inhibit the constructive use of R2P in other contexts. Resolution 1996,16 adopted in July 2011, established a UN peace operation for South Sudan and called upon the international community to assist the new government there to fulfil its responsibility to protect. Resolution 2014,17 adopted in October 2011, reminded the government of Yemen of its primary responsibility to protect its population. A negotiated political transition seemed to hold out the prospects of peace there, only for them to be dashed by the onset of civil war. In its September 2011 Presidential Statement on preventive diplomacy, the Council again recalled its commitment to R2P. More recently, Resolution 208518 (2012) on Mali authorized an international mission to assist the government there in fulfilling its responsibility to protect, among other things. Resolution 211719 (2013) on small arms and light weapons recognized their capacity to result in the commission of R2P crimes, and Resolution 212120 (2013) on the Central African Republic underscored the government’s responsibility to protect its own population. R2P continues to figure prominently in the Security Council’s engagement with Mali, where the UN Multidimensional Integrated Stabilization Mission (MINUSMA) is tasked with supporting the government to fulfil its responsibility to protect and grew in prominence in South Sudan as the country descended into civil war after 2013. There, rather than withdrawing its peacekeepers, the UN Security Council reinforced the mission while limiting its mandate to civilian protection and the delivery of humanitarian aid—​referencing R2P (Johnson, 2016, p. 258). In sharp contrast to events in Srebrenica in 1995, UN peacekeepers in South Sudan made their bases available to civilians fleeing harm and have used these “protection of civilians sites” to offer direct protection to vulnerable populations. In 2017, the Security Council emphasized R2P in its approach to the ongoing conflict in Somalia, underscoring the importance of the government’s responsibility to protect and mandating UN and other actors to support it in that regard (Resolutions 237221 and 238522 (2017)). It has increasingly adopted a similar approach to ongoing crises in the Central African Republic (CAR) and the Democratic Republic of Congo (DRC). Thus, in a remarkably short space of time, R2P has been transformed from a concept proposed by an international commission into an international principle endorsed by the world’s governments and usefully employed in more than a dozen situations. It is a principle that increasingly frames how the world thinks about the prevention of atrocity crimes 16 

UNSC Res 1996 (8 July 2011) UN Doc S/​RES/​1996. UNSC Res 2014 (21 October 2011) UN Doc S/​RES/​2014. 18  UNSC Res 2085 (20 December 2012) UN Doc S/​RES/​2085. 19  UNSC Res 2117 (26 September 2013) UN Doc S/​RES/​2117. 20  UNSC Res 2121 (10 October 2013) UN Doc S/​RES/​2121. 21  UNSC Res 2372 (30 August 2017) UN Doc S/​RES/​2372. 22  UNSC Res 2385 (14 November 2017) UN Doc S/​RES/​2385. 17 

446   Alex J. Bellamy and responses to them. Translating that principle into consistent practice has proven more difficult, however, and the practical record is mixed. That is primarily because R2P does not exist in a social vacuum, but instead interacts with other norms and interests and is subject to political contestation. For example, even if actors agree on the substance of R2P as a principle, they may still disagree radically on the best way of achieving its ambitions or on whether taking action is more, or less, important than achieving other goals, such as stability and order. Justin Morris (2015, p. 398) coined the apt phrase “dual responsibility” to point to the fact that the world’s “great powers” have not just a responsibility to protect, but also a responsibility to maintain international peace and security, and there are times in which the two imperatives might not correspond. R2P is an aspirational norm, born out of past failures. It creates expectations about how states and international organizations ought to respond to the problem of mass atrocities, and at the same time exposes gaps between the expectations and realities. As our expectations grow, so the gap becomes more obvious. One unanticipated effect of this is that R2P has contributed to an exaggerated sense of the international community’s capacity to determine what happens in individual countries (Straus, 2015, p. 326). R2P thus embodies shared expectations that states ought to protect their populations from atrocity crimes and that when they are manifestly failing to do so, the international community should adopt measures to protect vulnerable populations. Precisely what R2P requires in specific cases, in terms of the exact configuration of measures, the resources that should be expended, and the degree of risk that should be borne by outsiders, is difficult to determine, partly because the best course of action is seldom clear and always determined by context. Such judgments are always necessarily conditional, relative (in terms of speaking of “better” or “worse” responses), and dependent on context. As such, Jennifer Welsh (2014, p. 126) argues that R2P is primarily a responsibility to try: to consider acting to protect populations from atrocity crimes. But where, precisely, are these responsibilities? Where do they lie?

3.  “Responsibility” in R2P Although R2P is commonly referred to as a “moral imperative” (e.g., Pattison, 2013; Erskine, 2016), it is perhaps more accurate to view it as a “social convention,” prefaced on prior moral imperatives. In this, I am following Michael Walzer’s (1977, pp. 44–​45) view of a “convention.” As a social convention, R2P is a negotiated product of the efforts of politicians, diplomats, lawyers, and activists to develop a shared moral and institutional agreement about how the international community ought to respond to atrocity crimes. R2P is a work of human artifice intended to establish, and define, a common floor of decent behavior and to clarify the responsibilities of political authorities and bystanders. That atrocity crimes are morally wrong is an injunction accepted by all political authorities, one that underpins the legal prohibition of these crimes in international law (Sands, 2016). But this moral injunction is one that takes no account of the constraints imposed upon its implementation by the reality of world politics. This is where R2P comes in. R2P is best understood as a global social convention devised and agreed upon by sovereign states as a framework for fulfilling the moral injunction that people ought not to be indiscriminately killed or harmed by atrocity

The International Community and Atrocity Crimes    447 crimes. It is thus a normative social convention embedded within the existing international order, with all the rules, norms, institutions, interests, and power constellations that come with it. The international responsibilities articulated by R2P (the so-​called second and third pillars) are cosmopolitan responsibilities inasmuch as they are responsibilities that states owe to populations in other countries. R2P’s character as a social convention underscores its greatest asset: the global consensus it commands. Through lengthy and sometimes painful negotiations, a form of words was agreed upon that could command the support of the whole UN membership, including the Security Council. Researchers from around the world have demonstrated how different cultural traditions have their own expressions of R2P (Mani and Weiss, 2011). To borrow a label from John Rawls (1993, p. 133), R2P has become a point of “overlapping consensus” between the world’s many different conceptions of justice. Because R2P is a principle agreed upon by all UN member states, each individual government has a stake in its implementation. The UN Secretary-​General’s strategy of keeping thematic debate on R2P within the General Assembly, where all states get a voice, rather than shuffling it off to the Security Council, has helped ensure that the entire membership of the UN has had the opportunity to participate in the dialogue about the principle and its implementation. At the time of writing, around 150 governments have contributed to the General Assembly’s deliberations. This degree of ownership makes it more likely that governments will act upon their own initiative to realize R2P goals, especially in relation to the principle’s first two pillars. But what is the scope of international responsibility contained within R2P? It is important to stress that while R2P is not itself a legal obligation, the collective responsibility to protect, set out in pillars two and three of the principle, is grounded in existing legal obligations to prevent atrocity crimes. For instance, the International Court of Justice found in 2007 that all states have an extraterritorial obligation to take all reasonable measures to prevent genocide.23 This obligation was a point stressed by the UN Secretary-​General, António Guterres, in his 2017 report on Accountability for Atrocity Prevention. The UN Secretary-​ General also argued that states have an additional responsibility under the Genocide Convention to “raise the alarm when genocide is committed or imminently apprehended by bringing the matter to international attention” (Guterres, 2017, p. 15). He emphasized that article VIII of the Genocide Convention (1948)24 stipulates that signatories may “call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide.” In relation to war crimes, Guterres pointed out that Common Article 1 of the 1949 Geneva Conventions25 pointed to an obligation not just to abide by the law 23  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment, February 26, 2007, p. 43. 24  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention). 25  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third

448   Alex J. Bellamy by not committing atrocity crimes, but also to take positive steps to “ensure respect” for the Conventions around the world. State parties to the Rome Statute of the International Criminal Court (ICC),26 the Secretary-​General argued, “have a legal obligation to assist the Court, including by detaining and extraditing individuals indicted by it” (Guterres, 2017, p. 15). Additional Protocol I to the 1949 Geneva Conventions (art 89)27 “established a duty for state parties to cooperate by acting, individually or jointly, to address serious violations committed in the context of an international armed conflict in cooperation with the United Nations” (Guterres, 2017, p. 15). Wider legal responsibilities for protection are identified in the 1951 Refugee Convention28 and 1967 Protocol,29 which require that states provide asylum and ensure non-​refoulement for people fleeing persecution because of their membership of a particular race, religion, nationality, or social group or because of their political opinions—​something which obviously includes fleeing from atrocity crimes.30 The Arms Trade Treaty (2013, art 6(3))31 prohibited the sale of arms in situations where a state party “recognizes that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes.” Finally, Guterres (2017, p. 15) emphasized that the United Nations Charter (art 25)32 itself imposes an obligation on states to “accept and carry out” decisions of the United Nations Security Council. This includes, the Secretary-​General argued, decisions taken in response to the risk of atrocity crimes or to the evidence of their commission. R2P, then, is related to existing legal obligations, but it does not create new legal obligations or extend existing ones. It is important to understand that these legal obligations exist within an international political context, a point explicitly recognized by R2P where it calls for action through existing institutions and recognizes that decisions should be taken on a case-​by-​case basis. In any given situation, action—​and outcomes—​will be shaped by a wide range of considerations. Recognition of these exigencies are embedded within the international community’s shared understanding of R2P, which permits a degree of indeterminacy about how the responsibility ought to be discharged. Nonetheless, it is still common to

Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention). 26  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 27  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Protocol I). 28  Convention Relating to the Status of Refugees (adopted July 28, 1951, entered into force April 22, 1954) 189 UNTS 137 (Refugee Convention). 29  Protocol Relating to the Status of Refugees (adopted January 31, 1967, entered into force October 4, 1967) 606 UNTS 267. 30  For a discussion on forced migrants and atrocity crimes see Chapter 23 by Victoria Colvin and Phil Orchard in this volume. 31  Arms Trade Treaty (adopted April 2, 2013, entered into force December 24, 2014) 52373 UNTS 3012. 32  Charter of the United Nations (adopted June 26, 1945, entered into force October 24, 1945) 1 UNTS XVI (UN Charter).

The International Community and Atrocity Crimes    449 see R2P described as a new obligation of humanitarian intervention or a new legal principle, despite the fact that what emerged from 2005 was neither. Stephen Stedman (2007, p. 938), for example, claimed that R2P established “a new norm to legalize humanitarian intervention.” Likewise, Robert Pape (2012) criticized R2P on the grounds that the principle obligated armed intervention in response to a wide variety of human rights abuses. The reality is quite different, however, and the responsibility established by R2P was both more limited and more conditional than Stedman and Pape implied. In particular, if, as Michael Doyle (2015) suggests, R2P constitutes both a license (to action) and a leash (against unilateralism), it does so within the prevailing legal and normative order, and in a way that recognizes the need for prudence. The 2005 resolution on R2P changed nothing with respect to international law on the use of force. Paragraph 139 of the World Summit Outcome Document stated only that the Security Council would exercise a responsibility to protect populations where it saw fit to do so in situations where states were manifestly failing to protect their own from the four crimes. The Council already enjoyed the authority to do this by virtue of Articles 39–​42 of the UN Charter, agreed to in 1945. The Charter had left it to the Council to determine how to employ its enforcement powers to advance international peace and security. The aforementioned consensus on R2P was possible precisely because it did not change—​or even seek to change—​the basic international rules governing the use of force. Instead, R2P tries to persuade states to accept and act on their existing responsibilities, be they responsibilities to their own populations or the international responsibilities that flow from their various commitments. It also tries to find a balance between principles such as non-​interference and human protection. Because they are embedded within the practice of world politics, pillars two and three, like all international principles that seek to reshape practice, confront the problem of indeterminacy. While norms shape shared understandings and limit the behaviors that can be justified by reference to them, such that actors will be inhibited from acting in ways that cannot be plausibly justified, what a norm prescribes in a certain situation is never fixed and absolute. It is commonly argued (e.g., Franck, 1990, p. 52) that the more precisely a norm indicates the behavior it expects in a given situation, the stronger its compliance pull. R2P’s first pillar, for example, is a highly determinate norm: it expects that states refrain from perpetrating the four crimes. By comparison, the specific demands imposed on particular actors in concrete situations by pillars two and three of R2P are less determinate. It is seldom obvious precisely what the R2P requires in a given situation. Should there be forceful intervention in Syria? Should Omar al-​Bashir and Basher al-​Assad be indicted for war crimes? Should peacekeepers be sent to Libya? Should sanctions be imposed on Burundi? R2P does not provide easy answers to any of these questions, since the relationship between cause and effect is so uncertain and impacted by so many factors. The indeterminacy of what R2P requires in these cases obscures its compliance pull because it is difficult to know with any certainty what, precisely, is required by R2P and, therefore, the extent to which actors are satisfying shared expectations of appropriate behavior. The matter is complicated still further by the fact that states have to weigh the merits of different sets of responsibilities. For example, UN Security Council members have not just a responsibility to protect, but also primary responsibility for international peace and security. It is not always the case that the demands of this dual responsibility align, forcing states to make judgments about their relative value (Morris, 2015).

450   Alex J. Bellamy But, while indeterminacy may create conceptual problems for analysts determined to prove or disprove R2P’s causal effects (e.g., did it cause this or that state to adopt a particular position or policy?) or to assign specific responsibilities in particular cases, it has proven crucial in bridging the gap between normative theory and international practice. In practice, what Widmaier and Glanville (2015, p. 367) call “norm ambiguity” has allowed diplomats the flexibility needed to build consensus on responses to difficult cases such as Libya, South Sudan, Mali, and CAR, and has facilitated creative responses to new types of crises (for example, the UN Security Council’s action in Resolution 216533 (2014) to disarm Syria’s chemical weapons and mandate the delivery of humanitarian aid without the government’s consent). It has also allowed the Great Powers to cooperate on some R2P-​related issues (such as South Sudan) at the same time as they have been unable to find consensus on others (Syria). Ambiguity and indeterminacy may complicate the business of moral theorizing, but they can assist the work of practical diplomacy and atrocity prevention. Does R2P confer responsibilities on specific actors? Or, is it fatally weakened by its failure to do so? This is a question that has been hotly debated (e.g., compare Pattison, 2010, and Roff, 2013). As states agreed in 2005, R2P involves three layers of responsibility, each of which relates to different sets of actors and implies different sets of responsibilities. The first is a specific obligation on the part of states to protect their own populations—​this is derived from existing legal obligations, discussed elsewhere in this volume. The second is a general and diffused responsibility awarded to the “international community” to encourage and assist states to protect their own populations and to utilize diplomatic and other peaceful means to that end. The third, which is the focus of the following paragraphs, is a set of special responsibilities conferred upon the Security Council: a special responsibility to protect populations in other countries from atrocity crimes. It is a responsibility specifically bestowed by the international community as a whole upon the Security Council, but one which, by virtue of the legal obligation of states to comply with the Council’s decisions, ultimately rests on all states. The World Summit recognized the Security Council’s special responsibility with respect to the protection of populations from atrocity crimes. Certainly, political and normative in content rather than legal (Luck, 2010, pp. 349 and 363), these responsibilities nevertheless make it more difficult for the Council to do nothing in the face of atrocity crimes (Chesterman, 2011, p. 279). This much has become evident in the Council’s practice since it began utilizing R2P more regularly from early 2011. In paragraph 139 of the World Summit Outcome Document, member states acknowledged an international responsibility to “use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter of the United Nations to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” Paragraph 139 does not leave this international responsibility disembodied in the sense that it fails to identify a specific bearer of responsibility. On the one hand, it stipulates that the responsibility should be exercised “through the United Nations.” On the other, Chapters VI and VIII of the Charter identify specific roles for different UN Organs, primarily (but not exclusively) the Security Council.

33 

UNSC Res 2165 (14 July 2014) UN Doc S/​RES/​2165.

The International Community and Atrocity Crimes    451 Specifically, Chapter VI permits the Security Council to investigate any dispute or situation likely to give rise to international friction (article 34) and allows the Security Council to recommend remedies (article 36), terms of settlement (article 37), or recommendations about the pacific settlement of the dispute (article 38). Chapter VI also allows any member state to refer any such situation to the Security Council (article 35 (1)) and requires that parties to a dispute unable to resolve their differences by arbitration bring the matter to the Security Council (article 37). Among other things, these provisions have facilitated the mandating of diplomacy, commissions of inquiry, special political missions, civilian observation missions, police missions, and peacekeeping operations by the Security Council. Paragraph 139’s reference to Chapter VI provides a mechanism for member states to bring R2P-​related matters to the Security Council and identifies the Security Council’s role in discharging the international responsibility to protect populations though “diplomatic, humanitarian and other peaceful means”—​a responsibility which, in the terms of paragraph 139, is assumed by the UN on behalf of its members. Chapter VIII of the Charter, which addresses the role of regional arrangements in the maintenance of international peace and security, also refers to the Security Council. In particular, the Security Council is to encourage the pacific settlement of disputes by regional arrangements (article 52 (3)) and is entitled to utilize such arrangements for enforcement action under its authority (article 53 (1)). The more obvious responsibility bestowed on the Council by paragraph 139 of the World Summit Outcome Document relates to the second element of R2P’s third pillar: “We are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-​by-​case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity” (Ki-​moon, 2009, para. 139). UN Secretary-​General Ban Ki-​moon observed in 2009 that the wording of this sentence suggested the need for an “early and flexible response in such cases, one both tailored to the circumstances of the situation and fully in accord with the provisions of the Charter” (Ki-​moon, 2009, p. 49). In terms of the locus of responsibility, this sentence opens with “we,” indicating that the responsibility lays with each individual state rather than with a disembodied “international community.” What is more, this shared responsibility is delegated specifically to the Council, which is expressly identified as the appropriate agent. The Council can, therefore, be thought of as bearing special responsibilities relating to R2P. It is also, of course, the only agent in world politics that holds the international legal authority to authorize the use of military force and other means of coercion outside a context of self-​defense. Consequently, R2P can be considered a social convention that underscores existing legal obligations, but that confers moral and political responsibilities for preventing atrocities and protecting vulnerable populations on to specific actors and institutions. There is, however, a significant gap that has emerged in practice. R2P was conceptualized in state-​based terms: the principal threats are supposed to come from states, and states and international organizations are seen as the principal vehicles for protection. Yet, over the past two decades, there has been significant growth in the perpetration of atrocity crimes by non-​state armed groups (Loyle, 2018, p. 2). Ascertaining what R2P has to say about this problem remains a significant piece of unfinished business.

452   Alex J. Bellamy

4.  The Responsibilities of Non-​state Armed Groups The long-​term vision and underlying logic of R2P are relatively straightforward. The concept envisages a world of responsible and capable sovereign states that protect their own populations from atrocity crimes as a matter of routine (pillar I). This vision is to be achieved through a combination of mutual assistance and collective action: assistance (pillar II) designed to strengthen the capacity of states to protect their own populations and collective action (pillar III) aimed at protecting populations elsewhere and creating the conditions for mutual assistance. Much like the UN’s multidimensional peace operations in countries such as the DRC, Mali, and South Sudan, the international community’s goal with respect to R2P is to help states in distress to extend their (presumably legitimate) authority and protection over a country’s entire territory. Ultimately, though R2P’s second and third pillars are also concerned with providing immediate relief to populations in need, R2P’s second and third pillars are concerned with helping states fulfil their primary responsibility to protect. It is in this sense that R2P is best understood as an ally of sovereignty, since the concept as a whole is focused on helping states fulfil the responsibilities attached to their sovereignty (Luck, 2015a). However, as we have seen, things are rarely so simple in practice. Though the agreed R2P concept did not explicitly accommodate non-​state armed groups, it has become obvious that these groups often play a decisive role in determining whether, or not, populations are protected from atrocity crimes. Across the world, non-​state armed groups, such as the M23 in the Democratic Republic of Congo; Boko Haram in Nigeria; al-​Shabaab in Somalia; the Lord’s Resistance Army across southern Sudan, South Sudan, Uganda, and the DRC; and the Islamic State (IS) in the Middle East and its allies elsewhere, have committed significant atrocity crimes. Organizations such as Boko Haram and IS make a point of flouting shared rules about conduct in armed conflict and have perpetrated a wide range of crimes against humanity on a widespread and systematic scale. There are good grounds for suspecting that IS has perpetrated genocide against the Yazidi people of Iraq (Duarte-​Herrera and Ifsits, 2018).34 As Edward Luck (2015b, p. 2), the UN’s first Special Advisor on R2P, explained to the Security Council in December 2015, “The rise of violent extremism by groups with highly sectarian agendas . . . underscores that the inability of states to exercise effective sovereignty over parts of their territory can also contribute directly to the commission of atrocity crimes.” In some cases, where states have struggled to protect their own populations from non-​ state armed groups, R2P has helped to provide a normative basis and political rationale for international action. As Ban Ki-​moon (2009, p. 29) observed in 2009, “Pillar two [of R2P] could also encompass military assistance to help beleaguered States deal with armed non-​state actors threatening both the State and its population.” In Mali, the UN Security Council explicitly mandated UN peacekeepers (MINUSMA) to “support” the government in fulfilling its primary responsibility to protect.35 In practice, this entailed helping the

34  35 

See Chapter 37 by Kjell Anderson in this volume. UNSC Res 2085 (19 December 2012) UN Doc S/​RES/​2085.

The International Community and Atrocity Crimes    453 government protect civilians from Tuareg rebels. Initially, the UN Mission in South Sudan (UNMISS) had a similar mandate—​to “advise and assist” the government of South Sudan in fulfilling its primary responsibility to protect.36 Though R2P is not formally part of the African Union’s mandate for Somalia, it is an explicit part of the UN’s engagement, and a similar logic can be seen there, too—​the use of international resources (an African Union mission (AMISOM), supported by the UN) to support the extension of state authority over its territory in the expectation that this will establish the foundations for stability, protection, and peace building. In South Sudan, the logic of assisting the extension of state authority unraveled as government forces themselves were reportedly involved in atrocity crimes, prompting the Security Council to reduce the scope of UNMISS’ mandate from one focused on state building to one focused more narrowly on protection and humanitarian relief (Foley, 2017, pp. 324–​ 339). This problem of an end goal focused on the extension of state authority is magnified in Syria, where government forces—​combatting a variety of different non-​state armed groups, ranging from the pro-​democratic to violent extremist—​have committed the overwhelming majority of atrocity crimes experienced since 2011 (Dagher, 2019). Questions of state legitimacy also hindered international efforts to support the government of Iraq immediately after the rise of Islamic State (IS) there. Indeed, Prime Minister Nouri al-​Maliki’s sectarian politics helped stir up support for IS in Iraq and inhibited a strong and united Iraqi response to the crisis that began in 2014 (Harris, 2018, p. 4). Things are further complicated by the fact that in these, and other, contexts, non-​state armed groups have succeeded in seizing and holding territory. Indeed, in some conflict-​ affected areas, the nominal state has rarely—​if ever—​exerted control and authority. This raises difficult questions about whether non-​state armed groups have the same obligations as states in relation to taking proactive measures to protect civilians in territories they control. In situations of protracted civil war, the violent competition for resources, often-​ valuable natural resources, literally hollows out states and replaces (to the extent that they had ever existed) state structures with hybrid forms of authority based on networks of patrimony, economic exchange, and violence. As the struggles to build peace in DRC, CAR, and South Sudan demonstrate, the establishment and extension of state authority capable of protecting populations is unlikely to be achieved, even in the long term, without deeper transformations within civil (meaning outside the state) society and beyond. It is clearly not enough that states have accepted certain obligations under R2P—​it is important that those obligations be clearly extended to non-​state armed groups, too. Yet conferring responsibilities onto non-​state armed groups might inadvertently legitimize them by affording them the same legal obligations as states. Some non-​state armed groups are less formal in their organization and can include militias and organized groups of criminals. These organizations are typically less interested in controlling territory than they are in simply exploiting the civilian population on it. Non-​state armed groups do sometimes comply with international humanitarian law and can sometimes provide protection to vulnerable populations. One recent example is that of the Kurdish fighters who defended the city of Kobane from attacks by IS (see Bellamy, 2020, ­chapter 7), but there are many other examples of non-​state armed groups fulfilling 36 

UNSC Res 1996 (8 July 2011) UN Doc S/​RES/​1996.

454   Alex J. Bellamy protective roles. Sometimes, such groups claim legitimacy by binding themselves to international humanitarian law and not perpetrating atrocity crimes. In other situations, non-​ state armed groups might be both savior and perpetrator simultaneously—​protecting some people from atrocity crimes while subjecting others to them. A less prominent but significant type of actor that can harm civilians are self-​defense groups. Examples include groups such as the White Army in present-​day South Sudan, which might emerge from noble motives (in this case, defending cattle and community property), but soon degenerate into more predatory organizations (Alden and Arnold, 2007, p. 365). Although it is relatively uncontroversial to propose that non-​state armed groups are obliged to comply with international humanitarian law by not committing atrocity crimes, and their members may be subject to international criminal law in cases where they commit violations, things become more complex in situations where it is difficult to apply international criminal law. In these situations, the principal mechanisms for achieving compliance with international humanitarian law is the consent of armed groups themselves. The NGO Geneva Call has made a significant contribution by persuading armed groups to commit themselves to complying with the law. But these arrangements are quite fragile—​based, as they are, entirely on good-​faith undertakings between non-​state entities—​and not widely recognized by states. It is unlikely that these arrangements could be extended to those groups with the poorest human rights records. A further question is whether non-​state armed groups have R2P-​like responsibilities that extend beyond mere compliance with the law in the conduct of hostilities to include the prevention of atrocity crimes by others or the protection of populations from incitement—​one of the specific demands made by R2P. The UN Secretary-​General’s first Special Adviser on R2P, Edward Luck, suggested that non-​state armed groups that control territory have a responsibility to prevent atrocity crimes in the same way that states do. As Luck (2015b, p. ix) explained, “I made a bigger leap of faith . . . in proposing to the Secretary-​General that he assert that non-​state armed groups that control territory as well as national authorities, have the responsibility to protect populations by preventing the four specified crimes and their incitement.” Supporting this, others have suggested that the “international community” referred to in paragraphs 138 and 139 of the World Summit Outcome Document includes non-​state armed groups, and that, as such, when these groups control territory, they acquire wider responsibilities to prevent atrocities and incitement, and protect populations.37 Luck’s “leap” was both political and conceptual. Politically, while, as Luck observed, no state objected to the Secretary-​General’s inference, it is also fair to say that no state has openly accepted the notion, either. It remains to be seen whether, therefore, states accept this proposition, and there are grounds for thinking that a majority would not. However, the larger problem associated with extending the full gamut of responsibility to territory-​ occupying non-​state armed groups is conceptual. It is widely understood—​and has been often stated by the UN Secretary-​General—​that the responsibilities associated with R2P derive from sovereignty. To say, therefore, that non-​state armed groups can have a responsibility to protect is to imply that they have sovereign-​based responsibilities, putting them on an equal footing with states (Van Steenberghe, 2013, p. 55). Conceptually, unless one cedes

37  Stanley

Foundation (2015) “Violent Non-​State Actors as Perpetrators and Enablers of Atrocity Crimes.” Muscatine: Stanley Foundation Policy Dialogue Brief, p. 2.

The International Community and Atrocity Crimes    455 notional sovereignty to non-​state armed groups that control territory—​a conceptual move hardly likely to win the support of states—​it is difficult to justify the allocation of these wider responsibilities to non-​state armed groups. This may be one of the conceptual problems that does not seem so problematic in practice. That is because, in international humanitarian law, it is not sovereignty that determines applicable law but the empirical condition of control. What is more, the Law of Occupation in the fourth Genevan Convention (1949) comes into effect as a result of a territory being physically controlled by an armed group and carries with it legal obligations above and beyond the non-​commission of atrocity crimes. These include obligations to restore and maintain public order and safety (and thus prevent atrocity crimes), ensure the provision of food and medical care to the civilian population, respect cultural property, and permit the International Committee of the Red Cross to conduct its humanitarian activities. Importantly, for our purposes, the Law of Occupation applies irrespective of whether the occupation is judged lawful or not and is clear in insisting that the occupant does not acquire sovereignty over the territory and that occupation is a temporary condition. Thus, by referring to the Law of Occupation, we can extend the responsibilities of non-​state armed groups that hold territory without undermining the primary responsibility to protect which is held exclusively by states. But whether one accepts these propositions or not, it seems clear that there is much work still to be done to clarify the roles and responsibilities of non-​ state armed groups in relation to R2P.

5.  Conclusion Over the past two decades, a shared understanding that there is an international responsibility to protect populations from atrocity crimes has emerged within the international community. This responsibility is most obvious in the commitment to R2P, its incorporation into the work of key institutions such as the UN Security Council, and in the beginnings of changed practices on the ground. This is not to say, of course, that this sense of international responsibility equates with effective protective action in each and every case. Of course, it does not, since foreign and defense policies are shaped by numerous competing responsibilities, interests, preferences, and norms. In practical terms, as I noted earlier, R2P is primarily a responsibility to consider taking action to protect populations from genocide and other mass atrocities—​a “responsibility to try.” The principle’s mixed record in practice should not obscure the fact that the international community increasingly recognizes a collective responsibility to protect populations within other states. Nor should it obscure the fact that R2P confers specific responsibilities onto specific actors. However, the allocation of responsibility is complicated by the emergence of non-​state armed groups both as perpetrators and—​sometimes—​protectors. More work is needed to elaborate and build consensus on the responsibilities of these actors.

References Alden, C., and Arnold, M.B. (2007) “This Gun Is Our Food: Disarming the White Army Militias in South Sudan.” Conflict, Security & Development 7(3), pp. 361–​385.

456   Alex J. Bellamy Allison, R. (2013) “Russia and Syria: Explaining Alignment with a Regime in Crisis.” International Affairs 89(4), pp. 795–​823. Annan, K. (2005) In Larger Freedom: Towards Development, Security and Human Rights for all. Report of the Secretary-​General. UN Document A/​59/​2005.Add.3, New York. Annan, K. (2012) Interventions: A Life in War and Peace. New York: Allen Lane. Bellamy, A.J. (2020) The Betrayal of Syria: War, Atrocities and the Failure of International Diplomacy. New York: Columbia University Press. Chesterman, S. (2011) “Leading from Behind: The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention After Libya.” Ethics and International Affairs 25(3), pp. 279–​285. Dagher, S. (2019) Assad, or We Burn the Country: How One Family’s Lust for Power Destroyed Syria. New York: Little, Brown and Company. Doyle, M.W. (2015) The Question of Intervention: John Stuart Mill and the Responsibility to Protect. New Haven, CT: Yale University Press. Duarte-​Herrera, R., and Ifsits, C. (2018) “Genocide against Yazidis.” University of Vienna Law Review 1, pp. 1–​33. Erskine, T. (2016) “Moral Agents of Protection and Supplementary Responsibilities to Protect.” In: Bellamy, A.J., and Dunne, T. (eds.) The Oxford Handbook on the Responsibility to Protect. Oxford: Oxford University Press, pp. 167–​185. Foley, C. (2017) UN Peacekeeping Operations and the Protection of Civilians. Cambridge: Cambridge University Press. Franck, T. (1990) Power of Legitimacy among Nations. Oxford: Oxford University Press. Guterres, A. (2017) Implementing the Responsibility to Protect: Accountability for Prevention. Report of the Secretary-​General. A/​7 1/​1016-​S/​2017/​556. Harris, W. (2018) Quicksilver War: Syria, Iraq, and the Spiral of Conflict. London: Hurst and Co. Johnson, H.F. (2016) South Sudan: The Untold Story from Independence to Civil War. London: I.B. Tauris. Ki-​moon, Ban (2009) Implementing the Responsibility to Protect: Report of the Secretary-​ General. UN Document, A/​63/​677, New York. Loyle, C. (2018) “Understanding Nonstate Actor Behavior: The Determinants of Mass Atrocities.” US Holocaust Memorial Museum, Occasional Paper, February. Luck, E.C. (2010) “The Responsibility to Protect: Growing Pains or Early Promise?” Ethics and International Affairs 24(4), pp. 349–​365. Luck, E.C. (2015a) Briefing to the UN Security Council. Arria Formula Meeting on the Responsibility to Protect and Non-​State Actors. Taken from: http://​www.globalr2p.org/​ media/​files/​statement-​by-​dr-​ed-​luck-​international-​advisory-​board-​global-​centre-​for-​the-​ responsibility-​to-​protect-​1–​1.pdf (Published 2015, Accessed: September 13, 2019). Luck, E.C. (2015b) “Foreword.” In: Mills, K., and Karp, D.J. (eds.) Human Rights Protection in Global Politics: Responsibilities of States and Non-​State Actors. Basingstoke: Palgrave, pp. i–​viii. Mani, R., and Weiss, T.G. (eds.) (2011) Responsibility to Protect: Cultural Perspectives in the Global South. London: Routledge. Morris, J. (2015) “The Responsibility to Protect and the Great Powers: The Tensions of Dual Responsibility.” Global Responsibility to Protect 7(3-​4), pp. 401–​424. Pape, R.A. (2012) “When Duty Calls: A Pragmatic Standard of Humanitarian Intervention.” International Security 37(1), pp 41–​80.

The International Community and Atrocity Crimes    457 Pattison, J. (2010) Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? Oxford: Oxford University Press. Pattison, J. (2013) “Is There a Duty to Intervene? Intervention and the Responsibility to Protect.” Philosophy Compass 8(6), pp. 570–​579. Rawls, J. (1993) Political Liberalism. New York: Columbia University Press. Roff, H. (2013) Global Justice, Kant and the Responsibility to Protect: A Provisional Study. Abingdon: Routledge. Sands, P. (2016) East West Street: On the Origins of Genocide and Crimes Against Humanity. London: Weidenfeld and Nicolson. Stedman, S.J. (2007) “UN Transformation in an Era of Soft Balancing.” International Affairs 83(5), pp. 933–​944. Straus, S. (2015) Making and Unmaking Nations: War, Leadership and Genocide in Modern Africa. Ithaca, NY: Cornell University Press. Thakur, R. (2016) “Review Article: The Responsibility to Protect at 15.” International Affairs 92(2), pp. 415–​434. Ulfstein, H., and Christiansen, S. (2013) “The Legality of the NATO Bombing in Libya.” International and Comparative Law Quarterly 62(1), pp. 159–​171. Van Steenberghe, R. (2013) “Non-​State Actors.” In: Zyberi, G. (ed.) An Institutional Approach to the Responsibility to Protect. Cambridge: Cambridge University Press, pp. 33–​57. Walzer, M. (1977) Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books. Welsh, J.M. (2014) “Implementing the Responsibility to Protect: Catalyzing Debate and Building Capacity.” In: Betts, A., and Orchard, P. (eds.) Implementation and World Politics: How International Norms Change Practice. Oxford: Oxford University Press, pp. 124–​143. Widmaier, W.W., and Glanville, L. (2015) “The Benefits of Norm Ambiguity: Constructing the Responsibility to Protect Across Rwanda, Iraq and Libya.” Contemporary Politics 21(4), pp. 367–​383.

PA RT I V

HA R M A N D V IC T I M S OF AT RO C I T Y C R I M E S

CHAPTER 20

Victimol o g y of Atro cit y C ri me s Antony Pemberton and Rianne Letschert 1.  Introduction Recent years have seen a flourishing of interest in the victimology—​the social science of the experience of suffering wrongdoing—​of atrocity crimes. Often under the heading of supranational victimology (Letschert et al., 2011; Rafter and Walklate, 2012), victimologists have turned their attention to the study of crimes against humanity, war crimes, and genocide. In this sense, victimology is following in the footsteps of its larger sister-​discipline, criminology, where a similar trend can be observed (Hagan and Rymond-​Richmond, 2009). Like with supranational criminology, this assessment should provoke at least two observations (Letschert et al., 2011). The first observation is one of surprise, as it is odd, perhaps even remarkable, that the study of crime and victimization should have shied away from precisely the most extreme forms of these human phenomena. The second observation is one of reassessment, in the sense that the observation holds that a sizable body of work on atrocity crimes exists, but that it—​until recently—​rarely touted the denominator supranational criminology or victimology. As examples will show throughout this chapter, the victimology of atrocity crimes need not start from scratch. Nevertheless, the victimology of atrocity crimes is still in its infancy. This is in part due to the more general state of the art of victimology itself (Pemberton, 2015). Victimology has yet to fully appreciate the consequences of central features of its subject of study, including the normative weight and particular meaning of experiences of victimization. This means that, like other areas of social science (Flyvbjerg, 2001), but with additional force, a reorientation of victimology is needed. This should entail replacing the epistemological template of the natural sciences—​with its focus on instrumental rationality, context-​independence, and universality—​with one drawing on the virtue of phronesis (practical wisdom), in which values, context-​dependency, practice, and action are fully embraced. A difficulty particular to the situation of the victimology of atrocity crimes concerns the aspirations held by scholars in this area. Many scholars assume that there must be a

462    Antony Pemberton and Rianne Letschert lesson to be learned or value to be excavated from the experience of suffering—​that something can be redeemed from the realities of carnage and cruelty. In the context of the Nazi atrocities in the Second World War, Lawrence Langer (1998, p. 1) called such assumptions “preempting the Holocaust,” by which he means “using—​and perhaps abusing—​its grim details to fortify a prior commitment to an ideal of moral reality, community responsibility, or religious belief that leaves them with space to retain faith in their pristine value in a post-​Holocaust world.” For this reason, Giorgio Agamben (1999, p. 28) argued that the use of the term “Holocaust” is suspect in and of itself, because the literal meaning of the term, the “supreme sacrifice in the sphere of a complete devotion to sacred and superior motives,” already suggests such a meaning. Indeed, he posits that its use “arises from this unconscious demand to justify a death that is sine causa —​to give back meaning to what seemed incomprehensible.” For those involved in victimology as an academic, social-​scientific pursuit, this preemption often takes the form of attempts to generalize and to abstract from the experiences of suffering under examination. Such generalization or abstraction may be unavoidable, as the task of the scholar is to seek out perspectives, ideas, and theories that link such experiences in order to make more general observations. However, victimologists should at the same time proceed with the understanding that the impossibility of abstraction is a key, indeed ontological, feature of victimization. As we noted elsewhere, “[n]‌obody is raped, beaten, oppressed, or murdered in abstract: part of the essence of experiencing this firsthand lies in the impossibility of escaping into abstraction” (Pemberton, 2015, p. 12). This observation can be linked to the existential experience of shame that often accompanies (severe forms of) victimization (Pemberton, 2019b), an issue to which we will return throughout this chapter. As Shapiro (2003, p. 1131) put it: “it is the tortured, not the torturers, who are ashamed.” In shame, an undesirable truth about the self is revealed (Zahavi, 2012) that at the same time lies beyond our own volitional control. Shame is grounded in the human being’s incapacity to move away and break from itself (Williams, 1993; Agamben, 1999). In this chapter, we develop the features of self that are exposed in severe forms of victimization through the concept of the “ontological assault,” or an attack on one’s being (Pemberton, 2019a). The phrase “ontological assault” is derived from the phenomenology of life-​threatening illness (Pellegrino, 1979). First, it concerns the direct onslaught on the victim’s existence or the confrontation with the actuality of one’s demise, and the end of one’s being. Second, precisely in what the ontological assault diminishes/​damages/​ destructs, it also exposes features of one’s being that hitherto were taken for granted and/​or remained implicit; it is “ontologically revealing.” To describe the nature of the “ontological assault” in victimization, we draw upon philosopher Susan Brison’s (2002) phenomenology of her own rape and attempted murder that she analyzed in terms of her embodied self, narrative self, and autonomous self. We will follow this threefold distinction, using examples of atrocity crimes (Section 2.2–​2.4). At their most extreme, the damage/​diminishment/​destruction of our embodied/​narrative/​autonomous selves spills over into the description of the Musselmann in the concentration camps (Levi, 1988), with which we conclude the discussion of the ontological assault (Section 2.5, see also Agamben, 1999). Jean Amery (1985, p. 9) described the Musselmann as follows: “the prisoner who was giving up and was given up by his comrades, no longer had a room in his consciousness for the contrasts good or

Victimology of Atrocity Crimes    463 bad, noble or base, intellectual or unintellectual. He was a staggering corpse, a bundle of physical functions in his last convulsions.” Although the first challenge of victimology is to offer general insights into suffering wrongdoing while acknowledging the aforementioned difficulties inherent to abstraction from concrete experience in victimization, the second challenge is to consider the implications for reactions to atrocity crimes, such as various initiatives to deliver justice to victims (Pemberton, 2015; Pemberton, Mulder and Aarten, 2019). This chapter is not intended to be a reflection on welfare, healthcare, or therapeutic approaches, but instead on victimization as a specifically ethical experience. Perhaps one of victimology’s most important lessons involves the acknowledgment that the injustice victims experience needs to be approached as “an independent phenomenon in its own right” rather than merely as an opposite, derivative, or antithesis of justice (Shklar, 1990, p. 15, see Section 3.1). In addition, the extent to which justice can or is even intended to be a reaction to the experience of injustice is inherently restricted. We will outline the differences between doing justice and countering injustice by invoking a number of binary distinctions, which will be further developed and explained in Section 3.2: morality versus ethics, episteme/​techne versus phronesis, games versus playing, and guilt versus shame. Acknowledging the limitations of processes of justice in the face of injustice does not mean that they have no role to play in countering injustice. Indeed, this observation should stimulate a search for perspectives and approaches that make countering injustice a more tangible goal while recognizing the inherent limitations of social institutions in reckoning with the reality of suffering atrocity. We will sketch our initial ideas on the implications of our perspective, particularly focused on the experience following large-​scale conflict and wrongdoing, in the concluding Section 3.3.

2.  Victimization as an Ontological Assault: From Susan Brison to the Musselmann 2.1. The ontological assault Philosopher of medicine Edmund Pellegrino (1979) coined the term “ontological assault” for the first-​person experience of sudden, life-​threatening illness. It refers to the radical shift in the way people experience their own bodies. According to Pellegrino, when we are healthy “we see ourselves identified with our bodies, facing the world and acting on it in essential unity” (1979, p. 44). Life-​threatening illness instead can suddenly catapult the patient into experiencing a lack of unity and even opposition between their own body and their concept of self. The experience of severe forms of victimization, including atrocity crimes, has a similar capacity to “unmake the world” (Crossley, 2000, p. 539). The experience not only reveals the reality and possibility of threat from others but also exposes and reveals features of one’s existence precisely through the damage it does to them. The experience of victimization can be understood through Matthew Ratcliffe’s (2008) concept of “existential feelings.” The term refers to affective experiences that shape one’s concept of self and concern “the

464    Antony Pemberton and Rianne Letschert intimate association between feeling, how one finds oneself in the world and one’s grasp of reality” (Ratcliffe, 2012, p. 25). Examples are experiencing contingency, uncertainty, insecurity, homelessness, and uncanniness. As Ratcliffe (2012) emphasizes, when existential feelings remain stable, we are most often oblivious to their role. But when those feelings change—​as is the case in the “ontological assault”—​we can experience this shift and/​or the absence of the way the world felt before. The exposure of the realities of the self to the victim is connected to the experience of shame in victimization and how victimization is experienced as real in the way that experiences before and after victimization may not be. As Lawrence Langer (1991, p. 4) discusses Auschwitz survivor Charlotte Delbo’s experiences: “For many, Auschwitz permanently destroyed the potency of the sedative we call illusion: ‘In the camp,’ Delbo insists, ‘you could never pretend; you could never take refuge in the imaginary.’ ” The crushing reality of the place, the pain, the exhaustion, the cold, that would later congeal into a hardened skin of memory, prevented her and her companions from fantasizing that they were someone or somewhere else.” The most complete analysis of the features of the ontological assault in victimization is offered by philosopher Susan Brison (2002) in Aftermath, her book-​length analysis of her own experience of sexual violence and attempted murder. Both as a work of empirical phenomenological victimology and as a reflection on the ethical implications of victimization, Brison’s book is in a class of its own (e.g., Pemberton et al., 2019; see also Tessman, 2014; Berstein, 2015; Ratcliffe, 2017). The relevance to the current subject is apparent from the many examples of atrocity crimes she weaves into her account and has been further emphasized by the authors drawing upon her work. In the following sections, we shall follow Brison in her analysis of victimization as damage to/​diminishment of/​destruction of three interrelated senses of self: the embodied self, the narrative self, and the autonomous self. As we do so, we employ examples of atrocity crimes to demonstrate the particular application to this topic.

2.2. The embodied self Although she does not use the term “ontological assault” herself, Brison’s articulation of the impact of her rape and attempted murder is eerily in line with Pellegrino’s concept. This is most literally true for the embodied self. Before the rape, Brison and her husband were attempting to have their first child. Following the rape, Brison (2002, p. 44) found: I was no longer the same person I was before the assault, and one of the ways I seemed changed was that I had a different relationship with my body. My body was now perceived as an enemy, having betrayed my newfound trust and interest in it, and as a site of increased vulnerability.

Violent victimization here has the capacity to wreak havoc on how we normally take relationships with our bodies for granted. In an analysis of Brison’s experience, that also included reflections on Jean Amery’s (1980) account of being a victim of torture at the hands of the Gestapo, J.M. Bernstein (2015) argued that these severe forms of victimization drive a wedge between two relationships we have with our bodies. According to Bernstein (2015),

Victimology of Atrocity Crimes    465 we are our bodies and we have our bodies. The former refers to the fact that our embodiment is the main way in which we exist physically in and interact with the world, while the latter refers to our control over our own body. The experience of physical violence serves to forcibly remind the victim of the reality of their embodiment while rendering them existentially vulnerable by diminishing or destroying their sense of control over their own body. Brison’s rapist took over the control of her body and in the aftermath her body appeared as alien and even as an enemy. As Winkler (1991, p. 14)—​another person victimized by rape—​ described it: “[o]‌ur existence becomes like a body on life support.” As Amery’s experiences show, using the victim’s body against the victim is, in fact, a key feature of torture. His torturers used a form of strappado, in which the victim is hung by his arms from a hook, eventually dislodging and breaking the victim’s arms and shoulders by the gravitational pull of their own body weight. More generally, the torturer’s instrument is the body’s capacity for pain, “and . . . torture becomes the victim’s primary self-​relation: in pain I exist against myself ” (Bernstein, 2015, p. 88). The forced famines of the Nazis and of Stalin’s Soviet Union in the Bloodlands of Eastern Europe pay tribute to another manner in which one’s own body can start to appear as the enemy (Langer, 1991; Agamben, 1999; Snyder, 2010). The atrocities there included the deliberate starvation of millions. The victims were not only condemned to die a slow and excruciating death, but, to ward off the inevitable, were forced to display increasingly inhuman behavior as well. The pinnacle of this inhumanity was formed by acts of cannibalism of family members and loved ones to stay alive. The manner in which hunger might lead our bodies to betray us is also visible in the experience of concentration camps. As Primo Levi (1988, pp. 171–​172) expressed it, “[w]‌hoever waits for his neighbor to die in order to take his piece of bread is, albeit guiltless, further from the model of the thinking man than the most primitive pigmy or the most vicious sadist.” The ontological assault on the embodied self reveals that the previously taken-​for-​granted unity between “the body I am” and “the body I have” is a fragile social achievement, the fulfillment of which is only partially within our grasp (Bernstein, 2015). Key to the capacity of victimization to unmake our perception of the world is that the social achievement involved in maintaining a unity in the embodied self relies on our ability to trust that others will not take control of our body and the lack of experiences that have broken this trust. Shame from victimization comes from the exposure to a reality in which this trust is fundamentally betrayed. As Bernstein (2015, p. 110) concludes: It is a constant in the literature on torture and the camps that it is the victim, not the torturer, who carries the burden of shame, since it is the victim who experiences his body as no longer his, as beyond control . . . an involuntary thing, a thing of spasms, howls, leaks, bursting and shriveling.

This experience exposes a truth, as Zahavi (2012, p. 316) writes, that what “is revealed in shame, although highly undesirable, is nevertheless experienced as familiar, as something that discloses the truth about oneself.” It is here that Agamben (1999, pp. 105–​106) locates the experience of existential shame that often accompanies victimization: “to be ashamed means to be consigned to something that cannot be assumed. But what cannot be assumed is not something external. Rather it originates in our own intimacy, it is what is most intimate in us (for example our own physiological life).”

466    Antony Pemberton and Rianne Letschert

2.3. The narrative self The taken-​for-​granted aspect of the embodied self also concerns more abstract ways in which we are in the world. The title of Brison’s chapter of Aftermath, “Outliving Oneself,” most directly concerns her narrative self. Our identity is storied: we construct our own life stories, while our life stories help us understand ourselves as continuous beings in our worlds, from the past into the present into the future, and with coherence to our close and distant social surroundings (Ricouer, 1986). Severe forms of victimization endanger such narrative identity; they cause a rupture in people’s life stories. Victims existentially struggle to make sense of the relationship between the person they were before, during, and after the victimization with the person they are now, and the implications of this moving forward into the future (Crossley, 2000; Pemberton, Mulder, Aarten 2019). The narrative rupture also concerns the sense of continuity with the victim’s social milieu. This sense of continuity can become unmoored by the difficulties victims experience in making sense of their life story, which can be felt to be at odds with the way the world seems to continue as if nothing has changed (Pemberton, Mulder, Aarten 2019). In atrocity crimes, the effects on the wider social surroundings can also be understood in terms of damage to the narrative. It is not only the victim’s individual narrative that is ruptured in these experiences, but also that of their community, or even wider society (Pemberton and Aarten, 2018). As individual life stories draw on such communal, social, or cultural meta-​narratives (Hammack and Pilecki, 2012), victims might experience such a rupture when interacting at the individual, meso-​, and macro-​levels. The Holocaust and other cases of genocide include the intent to utterly destroy a group of people. Beyond the impact of experiencing and witnessing the mass carnage, which in its cruelty and senselessness imperils much of the worth of living, the undertaking of genocide also speaks to the possibility of the destruction of the group, whose existence is taken for granted by its members. In other words, it signals the finitude of the group. Therefore, any narrative reconnection will take place against the backdrop of not only the uncertainty of the existence of the individual, to which the violence has so radically exposed them, but also of the group that supplies much of the material from which the person’s identity and future will be drawn (Becker, 1973). Brison emphasizes the experience of “narrative foreclosure” (Freeman, 2000). The story of herself, that in important ways comprised her identity, had ended, but she somehow lingered on in a narrative limbo. A book describing the experiences of female survivors of the Rwandan Genocide was tellingly called The Men Who Killed Me (De Brouwer et al., 2005). In recent work, Ratcliffe (2017) makes a compelling case that the shift in temporal experience is key to understanding narrative foreclosure. In particular, it points to the fact that the victim experiences a rupture with the past, and an inability to see a future. Again, Primo Levi (1985, p. 75) offered a precise summary of this experience: “[l]‌ike animals, we were confined to the present moment.” The difficulty or even inability to experience oneself as temporal is the backdrop against which narrative foreclosure occurs, as stories hinge on such a flow of time. The ability to do so, however, is key to human existence, which is most crucially distinguished from things and—​perhaps more debatably—​animals in that the latter instead occur as a succession of “nows,” simply being present at discrete moments in time (Carman, 2013).

Victimology of Atrocity Crimes    467 This feature of victimization points to the particular difficulty of defining it in mental health terms, which views incessant, hallucinatory re-​living of a traumatic memory as a sign of disorder (Fassin and Rechtman, 2009). This view neglects the extent to which the experience of victimization is experienced as real and subsequent non-​victimization experiences may not be. Moreover, the assumption that the experience is situated in the victim’s past neglects the reality of the victim’s experience of narrative foreclosure. As Amery (1985, p. 34) put it, “[w]‌hoever is tortured, stays tortured. Torture is ineradicably burned into him, even when no clinically objective traces can be detected.” Or as psychologist Gregg Horowitz (2009, p. 38) summarized: “In its compulsive repetition of the moment of utterly vulnerable victimization, trauma is the incessance of injury. It is not the incessant return of the past, but rather the persistence of the thing itself . . . in its persistence. [It is] a broken off piece of suffering.” Such narrative foreclosure can also be experienced at the collective level. For instance, the work of psychologist Sotheara Chimm (2012) in Cambodia shows that the Cambodian “auto-​genocide” has left an imprint on the population that he tellingly calls baksbat, or “broken courage.” This concept essentially means that the ability to perceive a future, to work toward achieving it as a collective, is lost upon many of those who lived through the Khmer Rouge regime. Again, the experience of the ontological assault entails damage/​ diminishment/​ destruction of a taken-​for-​granted feature of ourself, which reveals the very features that it damages/​diminishes/​destructs. And again, it proves an extreme challenge to assume the narrative self—​given that the experience escapes the means of language, which is the root of all stories. As Amery argued (1985, p. 33): It would be totally senseless to try and describe here the pain that was inflicted on me. . . . One comparison would only stand in for the other, and in the end, we would be hoaxed by turn on the hopeless merry-​go-​round of figurative speech. The pain was what it was. Beyond that there is nothing to say. Qualities of feeling are as incomparable as they are indescribable. They mark the limit of the capacity of language to communicate.

Or as Levi (1985, p. 9) more succinctly summarized: “Our language lacks the words to express this experience, a demolition of a man.” Where words can be found, the difficulty comes from their subjectivity to the speaker and to the listener. Langer (1991, p. 3) emphasizes it is a mistake to “take for granted the role of a common language to express needs, form bonds and define the moral borders of the universe we live in.” When words exist, they have achieved a form of doubling: “cold,” “filthy,” or “gaunt” meant one thing to an Auschwitz survivor and another to the person who listens to them. Ratcliffe (2012, p. 13) remarks in more general terms “it is not just that one remembers things being different. The absence is there; part of the experience.” Survivors know that what is lost or damaged is taken for granted by others. In the Holocaust Testimonies (Langer, 1991, pp. xiii–​xiv), Magda F. recalls hauntingly, “I’m gonna tell you something now. If somebody would tell me this story, I would say she’s lying or he’s lying. Because this can’t be true. . . . Because to understand us, somebody has to go through it with us.” The fact that the victim expects disbelief diminishes any expectation that they will be able to communicate their experiences, an expectation that is all too often confirmed by the way others react to victims’ attempts at communication. In this regard, Tessman (2014, p. 154) details the evasive listening of audiences who repeatedly attempt to hear “a consoling story full of ‘moral

468    Antony Pemberton and Rianne Letschert formulas’ about ‘redemption,’ ‘salvation,’ ‘renewal,’ ‘growing through suffering,’ ‘strength,’ ‘hope,’ and ‘heroism’ ” in survivors’ descriptions of the Holocaust’s utter horrors. Such preemption is also visible in the way these experiences are theorized, as we discuss in the next section.

2.4. The autonomous self Finally, Brison discussed the consequences for her autonomous self. The damage to her narrative self and her embodied self left her with profound difficulties to understand herself as able to pursue goals and relationships that provide the foundation of her life; her desire of becoming a mother is but one example. In addition, narrative foreclosure renders projecting, planning, and pressing forward into the future all but impossible. If you cannot feel yourself existing into the future, you cannot plan or project ahead, either. Victimization, moreover, can destroy the sources of our final ends, for instance, the persons we love or our physical, mental, and emotional capacities to maintain a connection to them. In her discussion, Brison (2002, p. 61) makes the profound point that her victimization confirmed for her the relational nature of her experience of autonomy: “Enhancing the autonomy in the aftermath of my assault reinforced my view of autonomy as fundamentally dependent on others.” In much social-​science literature, the self is not understood this way. The implicit theory in use is a “Lone Ranger” perspective on humans, in which the healthy (adult) individual is viewed as one who is “self-​contained, independent and self-​reliant” (Rime, 2009, p. 60).1 We think this is a mistake in general. Humans are not beings who are selves first and then subsequently interact with a world outside, but are better understood as “being-​in-​the-​world,” an existence that Brison finds to be “created and sustained by others.” However, Brison’s account offers the insight that becoming a shut off, self-​contained, individualized, non-​relational self is a consequence of victimization that the victims desperately need to remedy. We have called this a self that is “radically alone.” It is unable to do what it did before, automatically and without reflection: exist immersed in a physical, temporal, and social world. A key manner in which the process toward radical loneliness takes place—​particularly in atrocity crimes—​is made explicit in Lisa Tessman’s (2014) work on situations of moral failure.2 She considers the well-​known paradigm of Sophie’s choice: an SS officer forces a Jewish mother in a concentration camp to choose which of her two children, a boy or a girl, will be put to death under the threat that if she does not choose, both children will be killed. Discussion of this situation often veers off into theorizing whether she made the right or wrong choice, or whether there was a right or wrong choice to make. Tessman (2014, p. 161) contends that this misses the point and instead “if a question about Sophie’s choice can reach the point of articulation at all, it is something more like ‘how was Sophie

1  We

took the Lone Ranger description from Bernard Rimé (2009), who also noted the difference between the social science of adults and of children and adolescents in this regard. 2  As will become apparent later, we might prefer the term “ethical failure” for the phenomena Tessman describes, but this does not detract from the force of her insights.

Victimology of Atrocity Crimes    469 destroyed by the choice that confronted her.’ ” Langer’s work on the Holocaust Testimonies (1991, p. 12) provides many examples of such realities: Anna G. tells of a 10-​year old girl who refused to go to the “left” (toward death) after selection. Kicking and scratching, the young girl was seized by three SS men who held her down while she screamed to her nearby mother that she shouldn’t let them kill her. According to Anna G., one of the SS men approached the mother who was only in her late twenties, and asked her if she wanted to go with her daughter. “No” the mother replied, at which point the witness observes, “This left a tremendous effect on me.” Any issue of the mother’s guilt in this case is largely irrelevant and easily resolved, as it was a “choice” made at gunpoint. However, the evil in this situation transcends this, as it purposefully relies on the consequences of forcing the mother into “choosing” in this situation. This choice not only destroys her own sense of motherhood, but also devalues and undermines that fundamental experience of life for the witness Anna G. Years later, she still had nightmares about this situation in which her own daughter was the screaming 10-​year-​old. Her experience calls into question the extent to which she could truly be able to assume the identity of being a mother, as such an identity is contingent on an absolute inability to transgress the basic requirements of what that identity entails. This even applies to people not even present at the site of this experience. As Tessman (2014, p. 171, bold added by authors) analyzes this example, “the effect is coming to realize that a mother (any mother? I too?) can be brought to the point of such a betrayal or forsaking of her child.” Making the victims complicit in their own victimization and the victimization of the loved ones that perished in the camps was one of the most demonic features of the Nazi regime. It forced victims to become agents against their own final ends, against those ends they most fundamentally care about. These identity-​defining ends are not goals to be achieved at one discrete point in time, to be left behind in the past. Instead, the question of “Who am I?”, in part or in full, follows the commitments that are related to “What do I care about?” Choices can be made that go against these commitments but not without a reevaluation of the self. Put differently, we care about certain possibilities, persons, and relationships because they define who we will be. In these terms, the actions of the Nazis not only endangered particular sources of caring but undermined caring as such. Losing a loved one is always a source of much anguish, in part because of its implications for our identity, for example: we are no longer a husband or a father (Frankfurt, 2004). But it does not render the capacity to love, or to discover such final ends, inert. Forcing Sophie or the woman in Anna G.’s recollection into making a choice against her own final ends instead, potentially and fully, devastates the capacity for such caring outright. The shame of choosing against what the identity of motherhood at the core requires us (never) to do can result in the experience of truth that being a mother is not such a final end at all (Tessman, 2014). If being a mother is not such an end, what other final ends are still open to us? The damage to motherhood here might infect final ends toute corte.

2.5. The ultimate ontological assault The depth of the challenge of the ontological assault to victims’ humanity is evidenced by the so-​called Musselmann in the camps in the Second World War. Amery (1985, p. 9) described

470    Antony Pemberton and Rianne Letschert the Musselmann as “the prisoner who was giving up and was given up by his comrades, no longer had a room in his consciousness for the contrasts good or bad, noble or base, intellectual or unintellectual. He was a staggering corpse, a bundle of physical functions in his last convulsions.” Similarly, Levi (1988, p. 90) contended: . . . the Musselmanner, the drowned, for the backbone of the camp, an anonymous mass, continually renewed and always identical, of non-​men who march and labour in silence, the divine spark dead them, already too empty to really suffer. One hesitates to call them living: one hesitates to call their death death, in the face of which they have no fear, as they are too tired to understand.

And in the words of Bruno Bettelheim (1960, p. 152), “They had to give up responding to the environment at all, and become objects, but with this they gave up being persons.” Agamben (1999) finds the situation of the Musselmann to represent the point at which human beings, while apparently remaining human beings, cease to be human. Each of the devastations to our being described in the previous sections are combined and taken to their limit in the figure of the Musselmann. They not only lost any ability for caring, but indeed any apparent awareness of social life at all; their sense of temporality had fully contracted to the present, constrained and constricted by the all-​out victory of the bodies they are and the sickness and hunger inflicted upon them over the bodies they have, thereby rendering a full-​blown foreclosure of any life narrative. In Agamben’s work, he repeatedly points to the Greek terms “bios” and “zoe” for, respectively, biographical life and biological life. The latter is the simple fact of living that is common to all living beings, while the former is the way of living unique to humans, as an individual or a group. On these terms, the Musselmann represents a “bare life,” a human existence which has been stripped of its bios and of its specifically human qualities.3 The latter point is instructive for at least two different reasons. First, witnessing the Musselmann offers the most full-​blown experience of the type of shame we have addressed throughout this chapter. We are confronted fully with the shape of our human being in the truth that this humanity itself can evaporate, while it cannot be assumed. The fact that it cannot be assumed is in part contingent on the fact that these features of self are on each count social achievements. In a discussion of shame, Seidler (2001, quoted in Zahavi, 2012, p. 320), summarizes it thusly: “Das Schamsubjekt ist ‘ganz bei sich’ und gleichzeitig ‘außer sich’ ” which translates to “the subject of shame is at the same time wholly with one, as well outside of one.”4 One of the seeming paradoxes according to Agamben (1999) is that once shame reaches its pinnacle—​once the threshold towards becoming a Musselmann is passed—​it will no longer be felt as such by the victim in question, as the capacity to experience shame is itself an ontological feature of human being. Second, the experience of witnessing such full-​blown devastation of humanity calls into question humanity as such. The exposure of the features of humanity in the ontological

3  It is worth remarking here that bios is also often referred to as “political life.” We will not pursue this point here, but this could also be analyzed in conjecture with the damage to the sphere of politics in atrocity crimes, see later. 4  Translated by the authors.

Victimology of Atrocity Crimes    471 assault offers an insight into a more profound reality than that lived in its aftermath. One of the most poignant descriptions of the latter can be found in Primo Levi’s (1988, p. 245) recurring dream: Now everything has turned to chaos; I am alone in this grey and turbid nothing, and now I know what this thing means, and I also know that I have always known it. I am in the Lager once more, and nothing is true outside the Lager. All the rest—​family, flowering, nature, home—​was a brief pause, a deception of the senses, a dream; my family, nature in flower, my home. Now this inner dream, this dream of peace is over; and in the outer dream, which continues gelid, a well-​known voice resounds: a single word, not imperious, but brief and subdued. It is the dawn command of Auschwitz, a foreign word, feared and expected: “Get up” Wstawach.

The shame here spills over into what Garrett (1994) calls “philosophical despair,” which he distinguishes from project-​specific despair (in which the despair concerns a particular state of affairs) and personal despair (which concerns one’s entire life). Philosophical despair is the despair about life itself, or feeling that life does not matter. It is what Primo Levi heard in the often-​cited words of the kapo, “es gibt hier kein Warum” (“there is no why here”). But if there was no why there, and that experience coincides with a sense of exposing a deeper truth about the self than elsewhere, what does that say for the life lived in the aftermath of the Second World War? That is the conundrum to which Levi referred to as the “shame of the just man” upon the liberation of Auschwitz. It is the shame that is associated with the victims’ experience of the inescapable reality of Auschwitz. That is the reason why Levi (1988, p. 181) remarked that this was “shame that the Germans never knew,” given that they, at all times, would have had the option to escape into justification, abstraction, or illusion. Neither Amery nor Levi found a good answer for themselves and eventually succumbed to their experience decades after they had “survived” the camps.

3.  Reacting to the Ontological Assault: Countering Injustice In the previous sections we developed the notion of understanding victimization as an ontological assault, or an assault on being. In this section we turn to the reaction to the injustice of victimization, what we call countering injustice (Pemberton, 2019). The purpose of countering injustice can be conceived as a remedy to the damage inherent to the ontological assault, the attack on our being-​in-​the-​world, including the resulting sense of narrative foreclosure and radical loneliness. This distinguishes countering injustice conceptually from doing justice. A key difference is that where countering injustice involves a relationship within the self, doing justice solely focuses on relationships between people. We will analyze the differences between countering injustice and doing justice, as well as discuss the implications of the limitations of doing justice while countering injustice for a victimological perspective on processes of justice in the aftermath of atrocity crimes.

472    Antony Pemberton and Rianne Letschert

3.1. Injustice as an independent phenomenon in its own right It is no news that in the aftermath of crime, particularly where it results in mass victimization due to atrocity crimes, victims may have many needs. For instance: medical and psychological assistance, shelter, education, employment, and emotional support. When it comes to the moral wrongfulness or the injustice of what happened rather than the harm it caused, the theory is built upon the tacit understanding that pursuing justice is the natural and obvious means to counter injustice. Political theorist Judith Shklar (1990) referred to this idea as the “normal model” of justice. In seeming coherence with its etymology, injustice is then conceptualized as a lack of justice; as one pole with justice and/​or as another side of one dimension with justice. The fact that the normal model understands injustice and justice as one dimension makes justice the obvious counterforce against suffering wrongdoing (Pemberton and Aarten, 2017). Shklar (1990) was skeptical of this view. This followed her emphasis on the limits of the processes of justice and coming to terms with the lived experience of injustice. This is particularly clear in the aftermath of the atrocities such as war crimes, crimes against humanity, and genocide. It begs the question What, if anything, can meaningfully be understood as justice in the face of the enormity of such evil? But this applies also to crimes of lesser magnitude. The implicit view, that initially there is a just situation which is disturbed by the occurrence of an injustice and subsequently rebalanced by (the outcome of) a justice process, does not stand up to much scrutiny (Yack, 1999). Elizabeth Wolgast (1987) makes this point at some length. Following a murder, rape, or the torture of a child, the punishment and therefore suffering of the offender might provide some satisfaction, but it cannot be said to restore the situation to the way it was before the offense. The victim is not returned to life, nor have they become un-​raped or un-​tortured. Beyond this, and more fundamentally, Shklar (1990) and Yack (1999) point to the asymmetry of justice and injustice. Justice may be conceived to be a counter to injustice, but, more primarily, it seeks to achieve order and regularity, or “well-​oiled social functioning” (Misra, 2014, p. 84). It does so in part by referring to abstract and universal values, which can apply irrespective of people’s history and relations, and to rational thought, believing to be the result of convergence through reasoned debate. This makes justice, according to Shklar, both wider and narrower than countering injustice. Its central, wider aim entails a focus on order and regularity, with an emphasis on rules and universality. In turn, it understands the experience of injustice in terms of rule-​breaking and seeks to impose norms and solutions to this rule-​breaking that apply across situations. But that also means that it does not and cannot include a full picture of everything that is involved in injustice—​it narrows our view of injustice to what is relevant in processes of justice. Shklar (1990, p. 15) called upon us to view injustice “as an independent phenomenon in its own right.” She already pointed to many victims’ key concerns that an emphasis on justice is likely to airbrush out the personal details of what it felt like, the victims’ story past and present, the imprints it left on memory and body, and the particular and personal meaning that the event had in victims’ lives. In doing so it privileges “broken rules” over “broken bodies and ruined lives” (Bernstein, 2015, p. 4), while fusing justice and injustice into one dimension means that the distinction between these issues goes unnoticed. The discussion in the previous section goes to the heart of this distinction (Pemberton, 2019b). Where doing justice in the aftermath of crime and victimization considers the

Victimology of Atrocity Crimes    473 transgressions of rules of conduct between people, countering injustice concerns the fact of victimization. Victimization includes the experience of damage, diminishment, and destruction in the ontological assault: the impact on the embodied self, the narrative self, and the autonomous self. The key issue is that injustice as the experience of “broken bodies and ruined lives” is a relationship with the self, rather than solely a relationship between people. Before addressing the limitations of processes of justice due to the differences between doing justice and countering injustice, we note that processes of justice in the aftermath of atrocity crimes are also limited on their own terms. Characteristics of atrocity crimes render the delivery of justice through criminal law more difficult compared to doing so with conventional crime. Just to mention a number of additional difficulties: establishing individual guilt for crimes committed as a collective or in the name of a collective, in other words the abundance of evidence of collective evil, coupled with a lack of proof of individual wrongdoing; the uncertain line between culpable and inculpable parties, including the role of so-​called innocent bystanders; the difficulty of finding a remedy suitable to the enormity of the crimes committed; and, coupled with the previous points, the diminished likelihood of reaching goals of criminal justice such as retribution and general or special prevention. The sheer number of victims and the harm visited on them means that the limits of the law are not only breached in an abstract sense, but also in more practical matters (Pemberton and Letschert, 2017). The aftermath of atrocity crimes often also calls into question if order could be secured or repaired by justice. Shklar’s (1986) initial qualms with legalism focused on the aftermath of international crimes, in particular the Second World War. Much of what is necessary for and presumed by a legal order, in particular its political underpinning, including its legitimacy as a representative institution in a polity, has been damaged, diminished, or devastated by these crimes. Instead of assuming the existence of legal order, these structures and trust need to be rebuilt and often won against all odds. Again, some of the complexities in this process are obfuscated due to the unreflective and simplistic use of the term “justice” as an automatically benign value. Shklar, for instance, argued for a more critical appraisal of the use of “political justice,” “social justice,” and “economic justice.” We would find the same to be true for “restorative justice” and—​most relevant to the aftermath of atrocity crimes—​“transitional justice.” Fusing the concepts of transition and justice neglects that these objectives might contradict each other, while it is often less than obvious that in such contradictions, justice should prevail over the requirements of transition.

3.2 Countering injustice versus doing justice The differences between “doing justice” and “countering injustice” can be further developed through a number of binary distinctions: “morality” versus “ethics”; episteme/​techne versus phronesis; “games” versus “playing”; and “guilt” versus “shame.” We discuss these in turn in this section. In an insightful essay, Avishai Margalit (2002) marshalled the fact that the English language offers two near synonyms in “ethics” (from the Latin) and “morality” (from the Greek) for our general framework of norms and values. While these terms are often used interchangeably, Margalit (2002) suggested adopting “morality” as the term for what he calls our “thin” relationships with others, and “ethics” to refer to our “thick” relationships

474    Antony Pemberton and Rianne Letschert (see at greater length Pemberton, 2015). The former would concern the normative framework that guides people’s dealings with others, solely on the basis of their common humanity. No more than a purely symbolic shared membership of the human race is needed. It should apply in principle to the whole of humanity, whether or not we ourselves are part of the relationship in question and equally to our judgements of behavior between others, and to our own behavior toward others. Such thin relationships form the basis of existing theories of justice. The domain of ethics instead would cover our “thick” relationships, according to Margalit (2002). In his view, we also have obligations which would lead to counter-​normative results when applied to cover all of humanity: those that concern our children, spouses, friends, and neighbors, for instance. Elsewhere (Pemberton, 2019a), we have already developed the argument that Margalit’s perspective can be reframed as a relationship within the self, which pivots on vital elements of identity that involve our caring for others, and more broadly our being-​in-​the-​world. This includes the lived “thick” relationships of which Margalit speaks. As we argued there, “by shifting the emphasis from ‘thick’ relationships to identity, it also makes clear . . . the ethical significance of the way in which one views oneself. This does not concern primarily the expectations that others are right to have of me, but instead the experience of how I, in my actions and experiences, maintain my own identity” (Pemberton, 2019a, p. 21). We believe this to be the key to unlocking the differences between doing justice and countering injustice, which also signifies a fundamental limitation of processes of justice in coming to terms with victimization.5 The purpose of countering injustice can be conceived as a remedy to the damage inherent to the ontological assault, including the resulting sense of narrative foreclosure and radical loneliness. The extent to which countering injustice is successful cannot be understood without its first-​person interpretation, the meaning, and ethics of those directly involved. Not only are the issues mentioned often absent from processes of justice, but they rely on a distinct (intellectual) virtue (Pellegrino 1979; Flyvbjerg, 2001; Pemberton, 2019a). In the terms of Aristotle’s Nicomachean Ethics 2014, doing justice involves the virtues of episteme and techne. The first concerns the acquisition of universal knowledge and the second concerns the craft of applying this knowledge in a particular situation. Countering injustice instead involves Aristotle’s third intellectual virtue: phronesis, best understood as the practical wisdom of knowing how to act in a particular social and political context, with reference to and reliance on those actors involved in the situation (Flyvbjerg, 2001). This bleeds into a distinction we adopted from David Graeber’s (2015) analysis of bureaucracy between games and playing (Pemberton, 2015; Pemberton and Aarten, 2017). According to Graeber (2015, p. 192), “A game is a bounded specific way of problem solving. Play is more cosmic and open-​ended. A game has a predictable resolution, play may not. Play allows for emergence, novelty, surprise.” Games by definition have rules, while play is an imaginative enterprise, context-​dependent, arbitrary, and fundamentally free. Games have clear beginnings and ends, and similarly clear boundaries to indicate what and who belongs. In play, instead, ambiguity reigns. Play seeps into other activities with porous

5  We cannot discuss this in detail here (see Pemberton, 2015; Pemberton and Aarten, 2017; Pemberton, 2019a) and so only discuss our perspective broadly.

Victimology of Atrocity Crimes    475 borders, if any at all, and has no requirement to make explicit who is allowed to play. Games will strive to confine, restrict, or even rule out the possibilities for play, but play can, and often will, develop into new games. Processes of justice are structured like games: separated from the rest of social life, governed by clear rules, clear definitions of, and separation between outcomes and processes, and a delineated set of participants. In Graeber’s terms, countering injustice is instead playful: boundaries with other areas of social life are porous, unclear, and indeed often unhelpful, the extent to which a resolution can be reached or is even possible remains to be seen, processes and (views on or understanding of) outcomes interact, and rely on the imagination and the context-​dependent interpretation of the participants, who do not comprise a predictable and delineated set. Viewing justice and injustice as part of one dimension can lead to the erroneous belief that settling questions concerning justice will offer answers to injustice as well: we think that this matter can be drawn out through a clearer understanding of guilt and shame. In our reading, the former is fundamentally a legal term, smuggled into our moral and emotional vocabulary through the Christian law conception of morality (Nietzsche, 1888/​1967; Anscombe, 1958; Williams, 1985; Agamben, 1999). As Williams’ (1993) analysis makes clear, guilt is the counterpart to the type of thin relationships that make up morality. In his terms, guilt concerns a moral self that is characterless. Of course, many issues of guilt and guiltlessness are of great relevance to those experiencing injustice and victimization. Allowing those guilty to commit crimes with impunity would increase the magnitude of the experience of wrongdoing, which also applies to an extent to an emphasis on the impersonal, causal forces underlying the commission of atrocities. As Levi (1988, pp. 48–​49) put it: “I am not an expert on the unconscious and the mind’s depths. . . . I do not know and it does not much interest me to know, whether in my depths there lurks a murderer, but I do know I was a guiltless victim and I was not a murderer.” However, apportioning guilt does not provide an answer to all the questions posed by crime, particularly where such crime involves the wide-​scale commission of atrocities. As has become clear in the previous section, we consider the experience of shame to be of key importance to understanding a reality of victimization: it is this ontological shame that appears as a counterpart to suffering the ontological assault. This shame concerns questions of identity: as Bernard Williams (1993, p. 93) succinctly said, “Shame looks to who I am.” And as we quoted Lisa Tessman (2014, p. 171) before, “[i]‌f a question about Sophie’s choice can reach the point of articulation at all, it is something more like ‘how was Sophie destroyed by the choice that confronted her.’ ” This is a different question than the ones posed in a process of justice, and it also compels a search for different answers. Even the questions relevant to the assessment of guilt, including what happened here, who did what, and who was responsible, need to be considered separately in their relevance to the identity of victims. In any case, we should be aware that the conditions that establish the guiltlessness of victims at the same time can be conducive to the elevation of their sense of shame. As Shapiro (2003, p. 1132) concludes: “It is not only the experiences these people were forced to endure or the actions they were forced to perform but their very helplessness and inability to resist that is reason for shame.” Each of these features is relevant to the experience of victimization in peacetime, in situations where order and institutions of justice and politics are not imperiled. The situation following atrocity crimes raises the stakes: that follows from the magnitude of evil, the depth of harm done. As noted before, it also means that the order and regularity that is

476    Antony Pemberton and Rianne Letschert required by the game-​like order of law has yet to be forged. Moreover, the depth of the experience of ontological shame imperils the sphere of ethics itself. The Cambodian experience of baksbat (“broken courage”) described earlier is perhaps only the starkest reminder of the pervasive loss of trust that often engulfs post-​atrocity communities and states. The experience of many post-​communist and post-​authoritarian states—​for instance East Germany and Chile—​in which neighbors and even family members were (forced to be) involved in victimizing those with whom they had “thick” relationships propels the radical loneliness of victimization into becoming an implicit norm across society.

4.  Conclusion: Countering Injustice in the Aftermath of Atrocity In this final section, we will sketch some main implications of this chapter’s perspective for the development of justice processes in the aftermath of atrocity that seek to engage with a victimological perspective. In a previous paper, we marshalled Amartya Sen’s (2009) description of the Sanskrit notions of justice, niti and nyaya (see Pemberton and Letschert, 2017). The latter is a conception of justice that perpetually considers the lived context and the existing options feasible within that context, with a particular eye to avoiding matsyanyaya, that is, forms of manifest injustice. The former is the kind of ideal-​type justice broadly similar to the way justice is conventionally conceptualized. We found a poor fit with the reality of the aftermath of atrocity crimes. International criminal justice pretends “to strive for niti in the pittance of cases in which it actually acts, while averting its gaze from the multitude of cases in which this is not the case” (Pemberton and Letschert, 2017, p. 35). Not only does nyaya reflect a more realistic attitude to the aftermath of atrocity crimes, it also holds the potential of doing more to counter injustice. The type of realistic weighing of the alternatives invokes phronesis (see earlier), while the touchstone of avoiding manifest injustice leads to an inclusion of the victim’s perspectives.6 Our views also restrict the extent to which thinking about the reaction to victimization in terms of repair or restoration is useful (Pemberton 2015, 2019a, 2019b). Realizing victims’ nature as being-​in-​the-​world can help us steer clear from adopting metaphors for victimization that see it in biomedical or economic terms: victims as self-​contained, individual, biological entities that need restoring or repair to their previous level of functioning.7 Instead, the remaking of the selves in the aftermath of atrocity involves selves that are often fundamentally and radically altered by living through the experience. The victimization 6 

As we concluded in Pemberton and Letschert (2017): “This leads us to the understanding that we should strive to reorient our reaction to international crimes, to increase the chances of the victimised populations themselves seeing that justice is done and to further aid rebuilding justice in the future. This justice is done in reality, acknowledging the budgetary constraints and the cultural, historical and social contexts of the jurisdiction in question. This is a justice that is reflexive and contingent, a justice that will often fail the standards of the ‘international community,’ including those relating to the inclusion of domestic political considerations. It is justice as the art of muddling through, acknowledging its many limitations: it is justice as nyaya.” 7  As is apparent from Pellegrino (1979)’s work, that is a view that is also suspect in medicine itself.

Victimology of Atrocity Crimes    477 and its aftermath will often have become part of the fabric of the person’s existence, given that these experiences have revealed a truth about the self that often lingers on well after the crimes. Rather than “restoration,” “re-​storying” might be a better term (Lindemann-​ Nelson, 2001; Pemberton, 2019a). Given the damage to the self as narrative, such narrative repair is of vital importance after individual instances of victimization, but the stakes are raised in the aftermath of atrocity crimes. It is not only the individual’s narrative that needs to be retold, but also that of the community or society to which the individual belongs. Doing so will often involve the kind of imaginative, inventive, and unforeseen choices and actions that we sought to capture under the term “playfulness.” The impact of processes of justice to countering injustice needs to be understood in terms of their contribution to such remaking of identity and re-​storying. We would also argue that the experience of radical loneliness as a key element of the ontological assault emphasizes the importance of connection and communion (Pemberton et al., 2017). This sits uneasily with the law’s game-​like inclination to separate itself from the rest of social life. This follows the logic inherent to the virtue of justice but can come at a severe cost to the ability of justice processes to counter injustice. It is here that we would situate the charge against international criminal proceedings that they offer only remote justice: justice that is disconnected from the victims, rather than serving as a conduit for a renewed communion of the peoples most severely afflicted by the atrocities in question. Our arguments also offer a position from where to critique the wholesomeness of truth in the aftermath of atrocity. This goes beyond what we would take to be the achieved wisdom. For instance, Martha Minow (1998), along with many others, recognizes that recounting, sharing, and confirming the veracity of painful memories of violence and indignity can be a cathartic and healing experience, but she recognizes the uncertainty of what a limited public process (or even moment) of avowal can provide for any victim and the possibility of exploitation of fragile people in a dramatic spectacle. We would also agree with Minow (1998, p. 79) that the extent to which such truth-​telling is beneficial to victims is contingent on the manner in which it can be positioned within a revitalized set of values, or in her words, “re-​establishing a moral framework, in which wrongs are correctly named and condemned, is usually crucial to restoring the mental health of survivors.” However, our analysis of the experience of shame and how it exposes a deeper reality about the self, suggests that the experience of truth itself might be part of the burden the victims have to carry. That is not to say that there is any merit in denying the truth of a victim’s experience, although the chapter has offered different manners in which this does occur. It also suggests the importance of a means to not merely state but to reimagine or recast the truth, again in keeping with the playfulness that countering injustice might require. The common denominator of this brief sketch is the necessity to avoid colonizing the experience of injustice and avenues to counter injustice by justice and justice processes. As Shklar (1986; 1990) maintained, for all its limitations, justice will often be the best thing we can do to counter injustice. She also argued that the latter is more likely to be true once we recognize the disjunction between doing justice and countering injustice and seek to examine the latter on its own terms. As is clear from this chapter, we see a crucial issue in this regard: the fact that victimization as an ontological assault is best understood as a damage/​ diminishment/​destruction of vital relationships within the self. At a minimum, therefore, we hope to have sparked an interest in trying to understand the ethical significance of this

478    Antony Pemberton and Rianne Letschert view, and the manner in which it can offer a fresh perspective on victims’ experiences in the aftermath of atrocity.

References Agamben, G. (1999) Remnants of Auschwitz: The Witness and the Archive. New York: Zone Books. Amery, Jean. (1980) At the mind’s limits: contemplations by a survivor of Auschwitz and its realities. Bloomington: Indiana University Press. Anscombe, G.E.M. (1958) “Modern Moral Philosophy.” Philosophy 33, pp. 1–​19. Aristotle (2014) Nicomachean Ethics. Translated by: Reeve, C.D.C. Indianapolis: Hackett. Becker, E. 1973. The denial of death. New York: Free Press. Bernstein, J.M. (2015) Torture and Dignity: An Essay on Moral Injury. Chicago: University of Chicago Press. Bettelheim, B. (1960) The Informed Heart. New York: The Free Press. Brison, S.J. (2002) Aftermath: Violence and the Remaking of the Self. Princeton, NJ: Princeton University Press. Carman, T, (2013). “The Question of Being.” In: Wrathall, M. (ed.) The Cambridge Companion to Being and Time. Cambridge: Cambridge University Press, pp. 84–​99. Chimm, S. (2012) “Baksbat (Broken Courage): The Development and Validation of the Inventory to Measure Baksbat, a Cambodian Trauma-​Based Cultural Syndrome.” Culture, Medicine and Psychiatry 36(4), pp. 640–​659. Crossley, M.L. (2000) “Narrative Psychology, Trauma and the Study of Self/​Identity.” Theory & Psychology 10(4), pp. 527–​546. De Brouwer, A.M. & Chu, S.H.K. 2009. The men who killed me. Vancouver. Douglas & McIntyre. Delbo, C. (1995) Auschwitz and After. New Haven, CT: Yale University Press. Fassin, D. & Rechtman, R. 2009. The empire of trauma. An inquiry into the condition of victimhood. Princeton NJ: Princeton University Press. Flyvbjerg, B. (2001) Making Social Science Matter: Why Social Inquiry Fails and How it Can Succeed Again. Cambridge: Cambridge University Press. Frankfurt, H. 2004. The reasons of love. Princeton NJ: Princeton University Press. Freeman, M. (2000) “When the Story’s Over: Narrative Foreclosure and the Possibility of Self-​Renewal.” In: Andrews, M., Sclater, S.D., Squire, C., and Treacher, A. (eds.) Lines of Narrative: Psychosocial Perspectives. London: Routledge, pp. 81–​93. Garrett, M. (1994) “The Problem of Despair.” In: Graham, G., and Stephan, G.L. (eds.) Philosophical Psychopathology. Cambridge, MA: MIT Press, pp. 73–​89. Graeber, D. (2015) The Utopia of Rules: New York. Melville. Hagan, J., and Rymond-​Richmond, W. (2009) Darfur and the Crime of Genocide. Cambridge: Cambridge University Press. Hammack, P.L., and Pilecki, A. (2012) “Narrative as a Root Metaphor from Political Psychology.” Political Psychology 33(1), pp. 75–​103. Horowitz, G. (2009) “A Late Adventure of the Feelings.” In: Golden, K.B., and Bergo, B.G. (eds.) The Trauma Controversy. New York: SUNY Press, pp. 23–​44. Langer, L. (1991) Holocaust Testimonies. New Haven, CT and London: Yale University Press. Langer, L. (1998) Preempting the Holocaust. New Haven, CT and London: Yale University Press.

Victimology of Atrocity Crimes    479 Letschert, R.M., Haveman, R.H., de Brouwer, A., and Pemberton, A. (eds). (2011) Victimological Approaches to International Crimes: Africa. Antwerp: Intersentia. Levi, P. (1985) If Not Now, When? London: Penguin Books. Levi, P. (1988) If This Is a Man/​The Truce. London: Abacus. Lindemann-​Nelson H. (2001) Damaged Identities, Narrative Repair. Ithaca, NY and London: Cornell University Press. Margalit, A. (2002) The Ethics of Memory. Cambridge, MA: Harvard University Press. Minow, M. (1998) Between Vengeance and Forgiveness. Boston: Beacon Press. Misra, S. (2014) “Doubt and Commitment: Justice and Skepticism in Judith Shklar’s Thought.” European Journal of Political Theory 15(1), pp. 77–​96. Nietzsche, F. (1887/​1967) On the Genealogy of Morals. Translated by: Hollingdale, R.J., and Kaufman, W. Random House: New York. Pellegrino, E.D. (1979) “Toward a Reconstruction of Medical Morality: The Primacy of the Act of Profession and the Fact of Illness.” Journal of Medicine and Philosophy 4(1), pp. 32–​56. Pemberton, A. (2015) Victimology with a Hammer: The Challenge of Victimology. Tilburg: Prismaprint. Pemberton, A., & Aarten, P. G. M. (2018). Narrative in the Study of Victimological Processes in Terrorism and Political Violence: An Initial Exploration. Studies in Conflict and Terrorism. 41(7): 541–​556. Pemberton, A. (2019a) “Annual Lecture: Time for a Rethink: Victims and Restorative Justice.” International Journal of Restorative Justice 2(1), pp. 11–​33. Pemberton, A. (2019b) “The Shame of Injustice: The Ethics of Victimology and What it Means for Restorative Justice.” International Journal of Restorative Justice 3, pp. 451–​469. Pemberton, A., Aarten, P.G.M., and Mulder, E. (2017) “Beyond Retribution, Restoration and Procedural Justice: The Big Two of Communion and Agency in Victims’ Perspectives on Justice.” Psychology, Crime and Law 23(7), pp. 682–​698. Pemberton, A., and Letschert, R.M. (2017) “Justice as the Art of Muddling Through: The Importance of Aftermath of International Crimes.” In: Brants, C., and Karstedt, S. (eds.) Engagement, Legitimacy, Contestation: Transitional Justice and its Public Spheres. Oxford: Hart Publishers, pp. 17–​40. Pemberton, A., and Aarten, P.G.M. (2017) “Judith Shklar’s Victimology and Restorative Justice.” In: Aertsen, I., and Pali, B. (eds.) Critical Restorative Justice. Oxford: Hart Publishers, pp. 315–​330. Pemberton, A., Mulder, E., and Aarten, P.G.M. (2019) “Stories of Injustice. Towards a Narrative Victimology.” European Journal of Criminology 16(4), pp. 391–​412. Rafter, N., and Walklate, S. (2012) “Genocide and the Dynamics of Victimization: Some Observations on Armenia.” European Journal of Criminology 9(5), pp. 514–​526. Ratcliffe, M. (2008) Feelings of Being: Phenomenology, Psychiatry and the Sense of Reality. Oxford: Oxford University Press. Ratcliffe, M. (2012) “The Phenomenology of Existential Feeling.” In: Fingerhut, J., and Marienburg, S. (eds.) Feelings of Being Alive. Boston and Berlin: De Gruyter, pp. 23–​54. Ratcliffe, M. (2017) Real Hallucinations: Psychiatric Illness, Intentionality and the Interpersonal World. Cambridge, MA; MIT Press. Ricoeur, P. (1986) “Life: A Story in Narrator.” In: Doeser, M., and Kray, J. (eds.) Facts and Values. Dordrecht: Nijhoff, pp. 34–​68. Rimé, B (2009) “Emotion Elicits the Social Emotion: Theory and Empirical Review.” Emotion Review 1(1), pp. 60–​85.

480    Antony Pemberton and Rianne Letschert Sen, A. (2009) The Idea of Justice. London: Allen Lane. Shapiro, D. (2003) “The Tortured, Not the Torturers, Are Ashamed.” Social Research 70(4), pp. 1131–​1149. Shklar, J. (1986) Legalism: Law, Morals and Political Trials. Cambridge, MA: Harvard University Press. Shklar, J. (1990) The Faces of Injustice. New Haven, CT: Yale University Press. Snyder, T. (2010) Bloodlands: Europe between Hitler and Stalin. New York: Basic Books. Tessman, L. (2014) Moral Failure. Oxford: Oxford University Press. Williams, B. (1985) Ethics and the Limits of Philosophy. Oxon: Routledge. Williams, B. (1993) Shame and Necessity. Berkeley: University of California Press. Winkler, C. (1991) “Rape as Social Murder.” Anthropology Today 7(3), pp. 12–​14. Wolgast, E. (1987) The Grammar of Justice. Ithaca, NY: Cornell University Press. Yack, B. (1999) “Putting Injustice First.” Social Research 66 (4), pp. 1103–​1120. Zahavi, D. (2012) “Self, Consciousness and Shame.” In: Zahavi, D. (ed.) The Oxford Handbook of Contemporary Phenomenology. Oxford: Oxford University Press, pp. 304–​323.

CHAPTER 21

How Can Morta l i t y Du e to Atro cit y C ri me s Be Est im ated? Met h od s a nd Data Sourc e s Helge Brunborg 1.  Introduction The loss of life is without doubt the worst consequence of atrocity crimes. Despite its seriousness, it is usually difficult to make reliable estimates of the number of victims of such crimes. The reasons for this are often related to the nature of the events causing the atrocities, such as warfare, which not only destroys human lives but also social and physical infrastructure, including administrative systems and buildings. The estimate of those killed during one of the most well-​known and worst atrocities in history, the murder of six million Jews during World War II, has become generally accepted by everybody (with a few exceptions), despite not being well documented. At the International Military Tribunal in Nuremberg in 1945–​ 1946, many cases of crimes were mentioned which included the number of victims, but there was little or no scientific authentication and analysis of the presented evidence (Seltzer, 1998; Brunborg, 2015). Mortality estimates are required for many different purposes: humanitarian reasons (e.g., to help survivors), political reasons (e.g., to justify reactions to halt atrocities or to provide evidence about the scale of the atrocities), post-​conflict reconciliation, criminal proceedings, scientific publications, and for history. The purpose for which the estimates are made may affect the choice of data sources, the population of concern, the indicators to be estimated, and the type of documentation. Estimates made for a criminal court will usually require heavier documentation and a more conservative approach than estimates for an academic paper. Since the military courts in Nuremburg and Tokyo after World War II, there have been important legal developments, with the adoption of the Geneva Conventions in 19491 and the 1  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31 (First

482   Helge Brunborg establishment of several international criminal courts, including the ad hoc International Criminal Tribunals for the former Yugoslavia (1993)2 and for Rwanda (in 1994)3, as well as the permanent International Criminal Court (2002).4 There have also been advances in statistical and demographic methods to collect data on deaths, although primarily on “normal” deaths (censuses, sample surveys, and administrative registers), and to estimate mortality indicators, greatly facilitated by technological progress. The interest in the mortality of armed and other conflicts has also grown substantially, including the establishment of several databases of victims. However, despite these developments, many questions remain when it comes to mortality estimates following atrocity crimes: First, what do we understand by “victims of atrocity crimes”? Only victims of war-​related crimes and genocide? What about deaths caused by epidemics, lack of health services, or poor living conditions during a conflict? Second, should military or civilian deaths, or both, be recorded, or perhaps only combat-​ related deaths? Third, should atrocity mortality statistics focus on certain groups according to gender, age, region, nationality, ethnicity, or religion? History is full of examples of targeting of specific groups. Depending on the purpose, the estimates can be group-​specific, for example, for documenting genocide. Fourth, which measure(s) of atrocity deaths should be estimated? Number of deaths, crude death rate (number of deaths per 1,000 of the population), or deaths by age, sex, and other background variables, such as region (locality)? There are also several mortality indicators such as death rates and life expectancy, depending on the purpose. For criminal proceedings and reconciliation, the total number of deaths of certain groups may be required, whereas for history, the death rates may be more relevant.5 Fifth, which method should be used to collect data and estimate the number of victims of a conflict? Sample surveys during or after the conflict, recording of incidents, population censuses, or population projections? Again, this would depend on the feasibility of the various methods, the intended use of the estimates, and the time horizon. In Cambodia,

Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention). 2  Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted May 25, 1995) UNSC Res 827(1993), as amended (ICTY Statute). 3  Statute of the International Criminal Tribunal for Rwanda (adopted November 8, 1994) UNSC Res 955(1994), as amended (ICTR Statute). 4  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 5  Degomme and Guha-​Sapir (2010) use estimates of crude death rates to estimate the violence-​related mortality rate, both per 10,000 population per day. These rates are further used to estimate both total and violence-​related number of deaths in Darfur, 2004–​2008. Tapp et al. (2008) estimate crude mortality rates (CMRs) and mortality rates due to violence (VMRs) per 1,000 or 10,000 people and per day, month, or year in Iraq during the war.

Mortality Estimates: Methods and Data Sources    483 for example, reliable data on the killings by the Khmer Rouge were not available, so the estimates had to be based on other methods and data sources (Tabeau and Kheam, 2009). Sixth, what kind of data are available or may be collected? In periods of armed conflict, registration systems are often destroyed, and perpetrators may be trying to conceal their crimes. Killings are often not observed by outsiders. Newspaper and non-​governmental, or intergovernmental, organizations’ reports are often inaccurate and may overcount some and undercount other casualties. This chapter will present and discuss how the number of deaths caused by atrocity crimes may be estimated: definitions, data sources, methods, and limitations, illustrated by examples. I will start by clarifying and defining some concepts. Only quantitative methods and sources are presented. The alternative approach, qualitative methods, is also used to study atrocity crimes, but generally with small samples.6 They may, however, “be useful to suggest mechanisms through which conflict affects demographic behaviour. . . . Qualitative data is usually collected to complement quantitative studies, to explore the participants’ own perspectives, or to clarify how concepts are understood locally” (Alburez-​Gutierrez, 2019, p. 629). We will not consider victims of other crimes, such as torture, sexual violence, and hostage taking.

2.  Definitions There is no internationally recognized legal or statistical definition of “victims of atrocity crimes.” However, the most common approach seems to include victims of genocide, crimes against humanity, and war crimes in this category, as discussed by Kuperberg and Hagan in Chapter 1 of this volume.7 Although terrorism can be extremely atrocious, it does not seem reasonable to include victims of terrorism in the definition of atrocity victims, since terrorism stricto sensu is not covered by international humanitarian law, nor by international criminal law. Likewise, murders and deaths committed by conventional criminals during (relative) peacetime should not be included. Thus, the definition of victims of atrocity crimes for the purposes of this chapter excludes large losses of human life due to terrorism, drug wars, and other conventional criminal actions, unless such crimes are so widespread or systematic, or committed in connection to an armed conflict, or with a purpose to destroy a specified group to constitute a war crime, crime against humanity, or genocide. Additionally, it is important to be aware that “[t]‌he fact that people are killed or injured as a result of combat activities does not automatically mean that a crime has been committed” (Fenrick, 2006, p. 184). “International humanitarian law and the Rome Statute permit

6 

For discussion of some of the qualitative methods see Chapter 2 by Catrien Bijleveld in this volume. also Global Centre for the Responsibility to Protect (2018) “Background Briefing: Defining the Four Mass Atrocity Crimes.” Available at: http://​www.globalr2p.org/​wp-​content/​uploads/​2020/​12/​ Defining-​the-​Four-​Crimes.pdf (Accessed: August 9, 2019); and International Committee of the Red Cross (2004) “What Is International Humanitarian Law?” Available at: https://​www.icrc.org/​en/​doc/​ assets/​files/​other/​what_​is_​ihl.pdf (Accessed: August 8, 2019). 7  See

484   Helge Brunborg belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.”8 In this sense, during armed conflict not all killings are criminal, only deliberate killing of combatants if the combatants surrender or are disabled, and hence do not participate in the fighting. The killing of civilians who do not directly take part in hostilities is criminal if the civilian losses, called collateral (i.e., unintentional) deaths, are disproportionately high compared to the military objective of an action. Collateral deaths are difficult or impossible to determine, but the ICTY has addressed the issue of estimating collateral deaths in some of its trials (Fenrick, 2006). The Uppsala/​ Peace Research Institute in Oslo (PRIO) data set9 on battle deaths distinguishes among combatant deaths, battle deaths, and war deaths, as well as between battle deaths and one-​sided violence. State-​based armed conflicts that claim at least 25 battle deaths per year are recorded in the database (Lacina and Gleditsch, 2005). In general, the data show that global battle deaths have been decreasing over most of the period 1946–​2002. This is also the conclusions from the analysis of the data until 2016 (Roser, 2019). Wagner at al. (2018) have used the Uppsala Conflict Data Program Georeferenced Events Dataset database to study the effect of armed conflict on child mortality in Africa, finding that a child born within 50 kilometers of an armed conflict had five times higher risk of dying before reaching the age of one than a child born in the same region during periods without conflict. Work is ongoing on related similar databases, recording, for example, global deaths in conflict since 1400, in one-​sided violence since 1989, and in civil wars during the period 1945–​1999 (Roser, 2019). Tabeau and Bijak (2005) distinguish between five categories of deaths during the conflict in Bosnia and Herzegovina, which took place in 1992–​1995:

a) Regular deaths caused by disease, old age, or war-​unrelated accidents; b) Deaths (of mainly civilians) due to severe living conditions during war; c) Deaths of civilians due to war; d) Deaths of soldiers/​other military personnel due to war; e) Missing persons (both civilians and soldiers).

They conclude that “[t]‌he assessment of war casualties must be concentrated on civilian victims, whose death (or disappearance) can in a straightforward manner be linked with war operations (categories b, c and the civilian component of e).” (Tabeau and Bijak, 2005, p. 221). Genocide deaths, as in Srebrenica in 1995, are included as part of (c) and (d). The same is the case for crimes against humanity. The authors conclude that although their estimate is much better founded than any other estimate ever obtained, it is still incomplete and should be seen as a work in progress. It is doubtful if death data of similar quality and completeness have been recorded for any other conflict and have been through an equally rigorous analysis. To repeat, it seems unreasonable to count all deaths in a country (or a region) during the period of a particular conflict as atrocity deaths. We should for most purposes only

8

  Letter from the chief prosecutor of the International Criminal Court (ICC) of 9 February 2006.   Available at: https://​www.pcr.uu.se/​research/​UCDP/​ (Accessed: October 29, 2019).

9

Mortality Estimates: Methods and Data Sources    485 include violent deaths that occurred due to the conflict and exclude “normal” deaths due to disease and old age. We should perhaps also distinguish between battle deaths of members of armed forces (which usually do not amount to crime) and civilians (which usually do, if unproportionate to the military advantage). For court trials, only certain categories of victims are included, depending on the charges. For example, it is not a war crime to kill a soldier in combat, according to international criminal law. But, it is a war crime to execute soldiers who have been captured or who are not engaged in combat. The additional number of deaths during a conflict is called excess deaths. “Excess deaths relate to all those deaths that would not have occurred under normal circumstances” (Tabeau and Kheam, 2009, p. 1). These are, therefore, “deaths above and beyond a baseline rate thought to be the one that would have prevailed if there had not been a war” (Spagat and Dougherty, 2010, p. 4). Excess deaths include both direct (or violent) deaths and indirect deaths. Direct excess deaths encompass persons killed in combat, executed, murdered, deaths from torture, land mines, etc. Indirect excess deaths are due to inadequate food, shelter, and medical services, increasing infectious diseases, reduced public hygiene (e.g., water quality), victims of mines, etc. Lacina and Gleditsch (2005) argue that there is a need for more attention to non-​battle causes of mortality, especially displacement and disease. The only way to distinguish between violent and other deaths during a conflict is to know the cause of death. Violent deaths usually have a disproportionate effect on a particular age group of males, whereas deteriorating living conditions affect all ages and both sexes (Heuveline, 1998, p. 51). This relationship may be utilized to estimate victims due to violence. The number of excess deaths in Cambodia during the Khmer Rouge regime in 1975–​1979 is very uncertain but has been estimated at between one and three million (Heuveline, 2015), of which about half are indirect (Tabeau and Kheam, 2009). Fully one quarter of the population died under the Khmer Rouge regime, which lasted for less than four years (Kiernan, 2010; Heuveline and Poch, 2007). Another example of (indirect) excess deaths is deaths from famine in the Soviet Union in the 1930s due to Stalin’s policies, estimated at 4–​5 million (Wheatcroft, 1990). Deaths may also be caused by a conflict following a conflict, both in the short and the long run. Li and Wen (2005, p. 471) find that civil conflicts have much stronger immediate effects on adult mortality than interstate conflicts, while interstate conflicts have stronger lingering effects. They also find that men tend to suffer higher mortality immediately from intrastate conflict and severe conflict, whereas women experience as much mortality due to lingering effects in the long run. These cases demonstrate that there are several different ways of defining and classifying victims of atrocity crimes. The estimates will depend on the chosen definition as well as on the purpose of the estimates, and on the available data sources on deaths.

3.  Types of Mortality Data Just as there are different definitions of both atrocity crimes and atrocity victims, there are different types of conflicts that occur in different settings. Armed conflicts can be national

486   Helge Brunborg or international, involve the state or not, be one-​sided or not, occur in rich or poor countries, use modern or old technology, affect the civilian population to a small or large extent, et cetera. Generally, we distinguish between micro-​data and macro-​data to measure mortality. Micro-​data, or individual-​level data, also called raw or primary data, are records with specific information about the persons (or events10) of concern. For example, if we have lists of deaths with particulars about the victims, such as name and date of birth, we can check that the persons listed as dead have not been double counted and that they actually lived in a given area before or during the conflict if pre-​war data are available. Another advantage of working with primary micro-​data is that it allows the analyst to make their own tables and do their own analysis, rather than relying on the aggregation of data done by someone else. Moreover, micro-​data may enable the linking of data from different sources if sufficient identifiers exist, which is called “record linkage”. This is useful both for corroborating the data and for obtaining additional information about the individuals, such as ethnicity and place of residence before the conflict. Different sources of data for the same individuals may also be used to check the history of individuals claimed to be killed or missing, for example, such as reappearing after a conflict as survivors in a voters’ list. The greatest drawback of micro-​data is that collecting, acquiring, checking, cleaning, and processing the data can be very difficult, complicated, costly, and time-​consuming. Moreover, we should not forget that data on individuals might be of poor quality, making it imperative to study how the data were collected. There are errors in all micro-​data, such as wrong or missing dates of birth, misspelled names, or wrong particulars about the event, which make record linkage difficult or impossible. The quality of the data can be checked through various statistical procedures, for example, to identify and delete duplicate records for the same individual or event, which occurs more frequently than normally assumed. Sample surveys, which have perhaps become the most common data collection method, usually record micro-​data quite accurately, for example, on deaths of relatives or neighbors. However, this is of limited value if the sample is skewed and not representative of the population that is investigated, as discussed in Section 4. Macro-​data, or aggregate data, are secondary data, often compiled and estimated by international or national institutions, or by individuals. Macro-​data are normally created by aggregating micro-​data, but they are sometimes drawn from media reports or public health reports or estimated using weak data and/​or methodology. If numbers of victims are collected from the media, for example, we cannot be sure that the same deaths have not been included more than once or that many deaths have been omitted altogether. This was the case for the public health estimate of war deaths in Bosnia and Herzegovina of 157,000 victims, which was calculated to be about 50 percent too high (Tabeau and Bijak, 2005). Estimates may also be affected by the political perspective of the estimator, resulting in numbers being biased upward or downward. An example of a low estimate for Bosnia and

10 The most important demographic events are births, deaths, marriages, divorces, international migrations, and moves within a country. In a conflict, an event may be a particular killing. Data on individuals may be either on event (type, date, place, etc.) or on status (sex, age, place of residence). Aggregated data on events are called flow statistics and on characteristics stock statistics.

Mortality Estimates: Methods and Data Sources    487 Herzegovina using macro-​data is 25,000–​60,000 (Kenney, 1995). Some of the most extreme (and unreliable) estimates of atrocity deaths have been made by people with very limited methodological training. Micro-​ data are usually more reliable than macro-​ data, since it is easier to detect falsifications if name, date of birth, et cetera are specified. It is also easier to cross-​verify micro-​data and to identify and eliminate duplicate records for the same victims or events. On the other hand, micro-​data may be incomplete and biased. As mentioned earlier, it is often difficult to be certain that all victims have been enumerated. These challenges are exemplified further in Section 5. If no death counts are available, so-​called indirect methods may be used. An example of this is estimation of the number of victims in the conflicts in Cambodia in the 1970s applying population projections to censuses taken before and after the conflicts. This method, along with various other sources of mortality estimates due to atrocity crimes, are further discussed in the following section.

4.  Sources of Mortality Data In normal, peaceful times, the best source of mortality data is civil registration (CR). Systems for registration of vital events, which include births, deaths, marriages, and divorces, but usually not migrations, have been established in most countries but are still quite deficient in some regions. No country has completely accurate records; in fact, “for death registration, only 55% of the countries, territories and areas [globally] have at least 90% coverage.”11 In some Asian countries with heavy mortality tolls due to recent atrocity crimes, the pre-​ conflict coverage ranged from 12 percent in Yemen to 34 percent in Iraq and 75 percent in Syria in 2007.12 For a country like Afghanistan, there are no available data on civil registration. In Africa, about 45 percent of deaths are registered, but the coverage is low or unknown for many countries. Even if all (or most) deaths during a conflict period are registered by the CR system, the cause of death also needs to be registered to be able to classify a death as an atrocity crime. It is much more demanding to register the cause of death than just to register the death itself. Only trained medical staff can ascertain the cause of death accurately. “Worldwide,

11 

United Nations (2014) “Principles and Recommendations for a Vital Statistics System. Revision 3.” Department of Economic and Social Affairs, Statistics Division, Statistical Papers, Series M No. 19/​Rev.3, New York. Available at: http://​unstats.un.org/​unsd/​Demographic/​standmeth/​principles/​M19Rev3en.pdf (Accessed: August 14, 2019). Coverage means the proportion of the population in a geographical area that is covered by the civil registration system. A related term is “completeness rate,” which is the actual number of registered events divided by the estimated number of vital events (United Nations, 2018 “Handbook on Civil Registration and Vital Statistics Systems: Management, Operation and Maintenance. Revision 1.” Available at: https://​unstats.un.org/​unsd/​demographic-​social/​Standards-​and-​Methods/​files/​ Handbooks/​crvs/​crvs-​mgt-​E.pdf) (Accessed: April 16, 2020). 12 United Nations (2017) “Coverage of Birth and Death Registration.” Available at: https://​ unstats.un.org/​unsd/​demographic-​social/​crvs/​index.cshtml#coverage (Accessed: April 14, 2020).

488   Helge Brunborg nearly half of deaths are registered with information on cause-​of-​death. . . . 81 countries collect data of very low quality or do not register deaths at all. All low-​income countries and two-​thirds of lower-​middle-​income countries fall in this category.”13 However, during conflict it is usually not very helpful that there was a high coverage of death registration in peaceful times. The most important potential sources of micro-​data on atrocity deaths are:

1. Civil registration of vital events; 2. Sample surveys; 3. Surveillance; 4. Population censuses; 5. Electoral lists; 6. Databases of victims based on media reports, hospital records, burials, etc.; 7. Lists of missing and dead persons; 8. Exhumations; 9. Population registers; 10. Truth and reconciliation commissions.

We may distinguish between passive and active reporting of deaths. Passive reporting includes records of exhumations and missing persons, military records, information on deaths from newspapers, eyewitnesses, hospitals, burial societies, et cetera, with Iraq Body Count as a well-​known example (Tapp et al., 2008). The passive surveillance method will usually undercount war-​related victims, as not all deaths may be recorded. Examples of active reporting include randomized sample surveys where interviewers visit households and ask about deaths in the household due to armed conflict. Such surveys are often criticized for the fact that reliable samples cannot be easily drawn from survivors’ populations and this often leads to serious miss-​estimation of victims (Tabeau and Zwierzchowski, 2013). In addition to the data sources previously mentioned, there are various indirect methods to estimate the number of conflict-​related victims, including: 11. Population projections; and 12. Multiple systems estimation. These methods can only provide rough estimates of the overall number of victims and not micro-​data, such as name and other particulars about the victims. Moreover, these methods may only to a limited extent provide estimates about the number of victims by age, sex, and ethnicity, for example. There are also anthropological and genealogical methods to collect data on atrocity victims, but it is difficult to use them to study large populations. A recent development is the Extended Genealogical Method, which was used “to reconstruct the excess mortality from the 1982 Río Negro Massacres in Guatemala” (Alburez-​Gutierrez, 2019, p. 627). In the next paragraphs, these sources and methods are presented and discussed together with examples of their use. A complete set of examples is not attempted, however. 13 World

Health Organization (WHO) (2019) “Civil registration of deaths.” Available at: https://​ www.who.int/​gho/​mortality_​burden_​disease/​registered_​deaths/​text/​en/​ (Accessed: August 14, 2019).

Mortality Estimates: Methods and Data Sources    489

4.1.  Civil registration of vital events During an armed conflict, the civil registration of deaths usually deteriorates. The registration of cause of death, which is required to ascertain that a death is war-​related, becomes even more deficient. Regular data collection methods, such as censuses and surveys, are often not reliable (or available) for doing this. The so-​called verbal autopsy, a trained layperson’s statement used for recording cause of death in the absence of medical personnel, is improving but can never become a fully reliable substitute.14 However, a layperson’s statement that a relative or neighbor was killed in warfare may be more reliable than if the cause of death was disease. An example of such data collection during conflict is Bosnia and Herzegovina, where 74,402 death records were collected by the civil registration system during 1992–​1995, of which 25,103 were war-​related (Tabeau and Bijak, 2005, p. 229).

4.2. Sample surveys A sample survey is a survey in which a random sample of households is interviewed, based on a questionnaire, eliciting information about the demographic evolution of household members over a specified retrospective period; mortality rates are estimated based on deaths reported in the sample over the recall period (Tapp et al., 2008, p. 11). There are many ways of drawing samples. Most household surveys are based on what are termed “cluster samples,” that is, cases where the ultimate sample units are chosen in groups of various sizes within one selected parts of the country (Dodge, 2003). Unfortunately, sample surveys are often biased, which means that the results are not representative of the study population. Bias may be caused by faulty sampling, interviewer bias, response bias, recall bias, and other sources of bias. Sample surveys may collect information about atrocity victims by asking household representatives about their knowledge of conflict-​related deaths, usually among family members. They are usually taken after a conflict has ended, for example, as a retrospective mortality survey.15 Some are conducted during a conflict, which is a risk to interviewers and may create problems, for example, in Iraq, Congo, and Darfur (Burnham, et al. 2006; Coghlan et al., 2006; Degomme and Guha-​Sapir, 2010). Sample surveys are inexpensive and fast compared to population censuses. Moreover, they can ask more specific questions on the topic of investigation than a large, nation-​wide census can. But asking about conflict casualties is challenging and requires careful design and testing (Asher, 2013). There are, several problems in using sample surveys to collect data on victims of atrocities, both during and after a conflict, such as “flaws in the sampling frame, refusals to respond and other types of non-​response, or badly designed questionnaires” (Asher, 2013, p. 120). These problems may lead to unreliable results. There may, for example, be

14 

World Health Organization (WHO) (2019) “Verbal autopsy standards: ascertaining and attributing causes of death.” Available at: https://​www.who.int/​healthinfo/​statistics/​verbalautopsystandards/​en/​ (Accessed: August 14, 2019). 15  See Asher (2013) for examples from Timor-​Leste and Sierra Leone.

490   Helge Brunborg overcounting if some deaths are reported several times by different family members. There may also be undercounting of deaths in families where all members have been killed since there is no family member to report them. People missed because of internal displacement or flight to another country may also contribute to undercounting. Some clusters in a sample may not be accessible to the surveyors and, therefore, could not be included, resulting in an underestimation of the mortality rate if the rates were higher in the inaccessible areas (Degomme and Guha-​Sapir, 2010). Obermeyer et al. (2008) have used retrospective death data from World Health Surveys to estimate violent war deaths in several countries. In these surveys, a question on deaths of siblings was asked to one respondent per household, which is a well-​established method to collect data about adult mortality. Nationally representative World Health Surveys were conducted in 70 countries in 2002–​2003, of which Obermeyer et al. used 13 surveys that recorded more than five sibling deaths from war injuries in a given 10-​year period.16 They used these to estimate that there were 378,000 “global war deaths” annually between 1985 and 1994 and conclude that “[w]‌ar causes more deaths than previously estimated, and there is no evidence to support a recent decline in war deaths” (Obermeyer et al., 2008, p. 1). This contradicts the findings of the Uppsala/​PRIO database, which Obermeyer et al. (2008, p. 5) conclude underestimated the number of war-​related deaths by threefold during the period 1985–​1994 (Lacina and Gleditsch, 2005). These results have been severely criticized for methodological weaknesses, in particular that the authors did not compare like with like, according to Spagat et al. (2009). The World Health Surveys collected “war deaths,” which means fatalities from injuries that respondents attribute to warfare, whereas the Uppsala/​PRIO database includes battle deaths in state-​ based conflicts (Lacina and Gleditsch, 2005). Moreover, Spagat et al. (2009, p. 241) criticizes the Obermeyer et al. (2008) study for excluding survey estimates that “were too low to allow for meaningful analysis,” suggesting that this procedure is biased toward finding a high ratio between their results and those of Uppsala/​PRIO. There are many other examples of widely different survey estimates of the number of deaths in an armed conflict, including Sudan, Iraq, Kosovo, El Salvador, and Nicaragua (Seligson and Mcelhinny, 1996; Spiegel and Salama, 2000; Johnson et al., 2008; Tapp et al., 2008; Degomme and Guha-​Sapir, 2010; Spagat 2010). Tapp et al. (2008) reviewed 13 studies on war mortality in Iraq—​five population-​based random surveys and eight passive studies. The results are “immensely different” (Tapp et al., 2008, p. 10), with mortality estimates varying from 48 to 759 deaths per day, and the excess number of deaths since the war started ranging from 100,000 to 601,000. The studies are, however, based on significant differences in methodology, including sampling method, time period covered, and categories of deaths. Some included indirect deaths due to the war in the excess mortality estimates, while others only included deaths directly caused by the war. Moreover, some of the studies requested death certificates for verification, but there may have been “a resistance of some household members to disclose cause of death” (Tapp et al., 2008, p. 9).

16 

The authors do not explain why they selected these 13 countries. It was probably done to include countries with significant numbers of conflict-​related deaths. The selection has been criticized by Spagat et al. (2009).

Mortality Estimates: Methods and Data Sources    491 There is also a general difference between active and passive registration methods, on which Tapp et al. (2008, p. 9) concludes that “[s]‌tudies using a population-​based method are more sensitive for estimating mortality, by identifying non-​reported deaths.” Several of the Iraq surveys have been criticized for using a faulty sampling technique (Johnson et al. 2008). The second Lancet study (Burnham et al. 2006), for example, was so severely criticized for ethical and data-​integrity problems (Spagat, 2010; Spagat and Dougherty, 2010) that the principal investigator’s privileges to head projects involving human subjects research were suspended.17 One of the worst cases of atrocity crimes in recent times is the genocide in Rwanda in 1994, where 800,000 people (10 percent of the population) were killed in just three months (Verwimp, 2004). De Walque and Verwimp (2010) have studied the pattern of excess mortality in the genocide using the sibling histories collected in the Demographic and Health Survey 2000. They found that adult males and educated individuals in urban areas were more likely to die. The examples presented here show that estimates of war-​related deaths from sample surveys are often unreliable. The survey methodology needs to be studied carefully before an estimate is used, including sampling plan, sample size, possible bias, questionnaire, confidence intervals, and documentation.

4.3.  Surveillance Surveillance is defined “as the systematic collection, analysis, and interpretation of health data and the timely dissemination of such data to policymakers and others” including deaths, births, and other demographic events (Bonita et al. 2001, p. 223). This is done in many places, but the use of this method to record war-​related deaths is rare because the study areas are usually small and an armed conflict may disrupt the operation of the surveillance. An example is Matlab Bazar in Bangladesh, where the crude death rate rose by 37 percent during the civil war in 1971, although the area was not the scene of any significant armed encounters (Curlin et al., 1976). Another example is Mekong Island Population Laboratory, which was established in Cambodia in 2000. The study population includes 10,000 residents, and the basic demographics are updated twice a year. From questions about the survival of parents, excess deaths during the Khmer Rouge regime were estimated at about 25 percent of the 1975 population (Heuveline and Poch, 2007).

17 “Because

of violations of the Bloomberg School’s policies regarding human subjects research, the School has suspended Dr. Burnham’s privileges to serve as a principal investigator on projects involving human subjects research.” (Johns Hopkins Bloomberg School of Public Health (2009) “Review Completed of 2006 Iraq Mortality Study.” Available at: http://​www.jhsph.edu/​publichealthnews/​press_​ releases/​2009/​iraq_​review.html. Accessed: June 28, 2019).

492   Helge Brunborg

4.4. Population censuses Population and housing censuses are the most common source of population data in most countries.18 The major advantages are that they use well-​tested methodology and that they cover the total population of a country. The major drawbacks are that they are taken rather infrequently, usually only every 10 years, and that there is little room for detailed questions on an unusual and sometimes sensitive issue such as conflict mortality. Few, if any, of these have data on atrocity deaths, but censuses may be used to provide indirect estimates on atrocity mortality, as discussed later. Census data are often used to estimate mortality in countries with insufficient registration of deaths. The most common approach is to ask about deaths in the household in the past 12 months, as was done in, for example, Kenya in 2009 and Botswana in 2011. It is, however, challenging to use such questions to record atrocity deaths, as we would also need to include an additional question on the cause of death, preferably also about other circumstances of the death. I am not aware of any censuses that have included this question for the total population. It was not done in the first post-​war census in Bosnia and Herzegovina in 2013, and I do not know if Iraq will attempt to record war-​ related deaths in its first post-​war census scheduled to be held in 2020, but which was postponed due the COVID-​19 pandemic. This would, in any case, be too late to obtain reliable data on killings during the war which started with the U.S.-​led invasion in 2003. The closest example of a census recording data on violent deaths is the 2010 census of Nepal, in which a representative sample of households were asked about the cause of deaths in the family, including external causes such as accidents, suicide, violence, and rebels (Sharma, 2006). It should be noted that censuses may also discriminate. An example is the 1991 Rwandan census, which was the last census to ask about ethnicity. There are indications that too many Tutsi were recorded in the census, which calls into question the total number of those killed in the 1994 genocide, as “the numbers of Hutus killed in 1994 may have been much higher than reported” (Jones, 2010, p. 102). Nevertheless, population censuses may be utilized in several ways to estimate war mortality: 1. General mortality during a conflict period may be estimated from a census and compared with “normal” mortality, i.e., before and/​or after the conflict. The excess mortality may be ascribed to the conflict, but this method cannot distinguish between mortality directly and indirectly caused by the war. The method has been used to estimate the number of deaths in the U.S. Civil War (Hacker, 2011). 2. Censuses provide statistics on the size and age-​sex structure of a population before and after a conflict. The “missing” numbers may be ascribed to excess mortality (or to reduced fertility) due to the conflict, if it can be assumed that net migration is negligible. An example is Cambodia, where the 2000 population pyramid that was projected from the 1998 census depicts an unusually small number of persons aged 18 IPUMS International is an important source of census microdata, including 43 censuses and surveys for 98 countries (https://​international.ipums.org/​international/​). (Accessed: August 16, 2019).

Mortality Estimates: Methods and Data Sources    493 70–74 60–64 50–54

Female

Male

40–44 30–34 20–24 10–14 0–4 1500000 1000000 500000

0

500000 1000000 1500000

Figure 21.1  Population pyramid for Cambodia 2000 Source: Neupert and Prum (2005, p. 227)

20–​24, who were born or lived during the Khmer Rouge period in 1975–​1979 (see Figure 21.1). Moreover, “[t]‌he pyramid suggests that adult males were more targeted by political violence than were women, children, teenagers and the elderly” (Neupert and Prum, 2005, p. 254). Another telling example is the population pyramid for Germany for 1960 shown in Figure 21.2, which clearly shows the effects of the two world wars, with distinct deficits for age groups 60–​74 (World War I) and 40–​44 (World War II), and 10–​14 (births during World War II). Another example is the 1937 census for the Soviet Union, which yielded a significant lower population size than projected from the previous census in 1926. This upset Stalin so much that he executed the persons in charge of the census, which was banned and made secret. But the census records remained intact and post-​Soviet analyses have revealed a large population loss, which is ascribed to the famine in 1932–​1933, which is considered a genocide (Johnson, 1992; Merridale, 1996). Russian censuses also show the effects of armed conflict on the ratio of males to females in the population, from 1.001 in 1897, to 0.935 in 1926 following World War I and the Revolution, and to 0.773 just after World War II (Coale, 1991, p. 519). Hill et al. (2008) applied the intercensal survival technique19 on data from the censuses of 1931, 1941, and 1951 to measure the survival of successive age cohorts from one census to the next to study the demographic impact of the partition of India in 1947, finding that partition-​related population losses in the Punjab, either from deaths or unrecorded migration, were in the range of 2.3–​3.2 million.

19  On the use of two successive population censuses to estimate mortality in the period between the censuses, assuming that the censuses are accurate and that the population is closed (no migration), see United Nations (1983) “Indirect Techniques for Demographic Estimation.” Population Studies, 81. New York: Department of International Economic and Social Affairs, Ch. IX.

494   Helge Brunborg Male

100+ 95–99

0.0% 0.0%

90–94

0.0% 0.0% 0.1%

85–89

0.5%

80–84

0.2% 0.7% 1.3%

0.9%

75–79 70–74

2.0%

1.3% 1.7%

65–69

2.7%

2.4%

60–64 55–59

3.2%

50–54

3.2%

3.3% 3.8% 4.2%

2.9%

45–49

4.0% 2.7%

1.9%

40–44

3.8%

2.7%

35–39

3.5%

3.2%

30–34

3.4%

3.5%

25–29

4.1%

4.3%

20–24

3.6%

15–19

3.4%

3.2%

10–14 5–9

3.1% 3.5%

3.7%

3.8%

4.1%

0–4 10%

Female

0.0% 0.0%

8%

6%

4%

2%

0%

2%

4%

6%

8%

10%

Figure 21.2  Population pyramid for Germany 1960 https://​www.populationpyramid.net/​germany/​1960/​ (Accessed: 16 September 2019)

3. Censuses are important for making household lists and drawing random samples for surveys. Without a master sampling frame,20 that is, data on where households are located and their characteristics, it is difficult to draw representative samples, especially for recording relatively rare events such as conflict-​related deaths, which may lead to highly biased estimates of conflict-​related mortality, see Section 4.2. 4. A census yields estimates of the population at risk (denominators) by age and sex, which are needed to estimate mortality rates from the numbers of deaths (numerators), for example, for the total population (crude death rate) or for children under five (under-​five mortality rate).

20  See United Nations (2005) “Household Sample Surveys in Developing and Transition Countries.” Series F No. 96. New York: Department of International Economic and Social Affairs; United Nations (2005) “Designing Household Survey Samples: Practical Guidelines.” Series F No. 98. New York: Department of International Economic and Social Affairs.

Mortality Estimates: Methods and Data Sources    495 5. Census records can provide individual-​level information about people before a conflict and link this to conflict deaths at the individual level, yielding data for killed persons by age, residence, and religion, for example; (see Section 5).

4.5. Electoral lists Post-​conflict electoral lists are lists of survivors, whereas pre-​conflict electoral lists may also include persons who later became victims. Electoral lists may be used to obtain statistics on the age-​and sex structure of a population in the absence of a census. Censuses are complex and expensive and not the first priority after a conflict, whereas elections often have to be undertaken soon to stabilize political conditions. The drawbacks of electoral lists are that they include only people who are entitled to vote, usually over the age of 18. Moreover, electoral lists are often established by active and voluntary registration and do not include people who are not eligible to vote, who do not want to vote, or who are unable to register (non-​citizens, living in remote areas, health problems, and so forth). Since a census in Cambodia had not yet been taken after the Khmer Rouge, Heuveline (1998) used the 1992 electoral list to obtain statistics on the age-​sex structure of the population to estimate the excess mortality during the Khmer Rouge regime in 1975–​1979. The first post-​conflict census was conducted in 2008.21 Another example of the application of electoral lists is the 1997 electoral lists for Bosnia and Herzegovina, which was used to check that persons reported to be killed or missing in the armed conflict in 1992–​1995 were not survivors (see Section 5).

4.6. Databases of victims Institutions and groups often collect data on deaths from media reports and other sources and record them in a database with information about place, date, name if available, and other details. This method of collecting data on victims is called a “passive” collection of incidents of deaths (and of other events), contrary to the “active” collection of deaths in surveys and censuses, as discussed earlier. The collection of conflict-​related deaths often starts during the conflict. This has been done in several countries, including Bosnia and Herzegovina, Iraq, and Syria. The largest and the best known of victims’ databases is the Iraq Body Count (IBC), which “records the violent deaths that have resulted from the 2003 military intervention in Iraq.”22 The IBC website states that: • IBC’s figures are not statistical “estimates” but a record of actual, documented deaths. • IBC records solely violent deaths. 21  Kingdom

of Cambodia (2009) “General Population Census of Cambodia 2008: National Report on Final Census Results”. Available at: https://​camnut.weebly.com/​uploads/​2/​0/​3/​8/​20389289/​2009_​ census_​2008.pdf (Accessed: April 16, 2020). 22  Iraq Body Count (IBC) (2019) Website. Available at: https://​www.iraqbodycount.org/​ (Accessed: June 28, 2019).

496   Helge Brunborg • IBC’s detailed database records solely civilian (strictly, “non-​combatant”) deaths. A separate total that includes combatant deaths is provided on the homepage. • IBC’s figures are constantly updated and revised as new data comes in, and frequent consultation is advised. By June 2019, IBC had documented 183,669–​206,273 civilian deaths from violence, and a total of 288,000 violent deaths, including of combatants. In general, fatalities drawn solely from media reports tend to undercount the true extent of the death toll, according to Spagat (2010), who mentions several examples of undercounts, including: • Roberts et al. (2004) estimated 56,700 violent deaths of civilians plus combatants outside the Al-​Anbar governorate in Iraq, compared to 17,687 deaths of civilians recorded by IBC for the same period. • Benini and Moulton (2004), in a study of Afghanistan since 2001, compared mortality estimates from a population-​based survey, which found 5,576 killed, with a body count based on media monitoring of 3,620 civilians killed for the same period. Another database of victims is the Bosnian Book of Dead (BBD), which includes war-​related deaths. The data were collected mainly from individual informants such as eyewitnesses, close relatives, friends, and neighbors, or from overall sources such as press reports, books, missing persons lists, non-​governmental organizations, and government sources. Ball et al. (2007), who evaluated the BBD, write that it is not correct to consider 96,895 (in July 2006) as the overall total of victims of the 1992–​1995 conflict. This number should be viewed as an approximation and not as the complete total. Their overall conclusion is that “the level of incompleteness and deficiency in the BBD database is low and fairly acceptable. The database is a remarkable achievement of all those who have worked on this project. . . .The database is a unique and valuable source and deserves a prominent place among sources on victimization of the 1992–​95 war in Bosnia and Herzegovina” (Ball et al, 2007, pp. 41 and 59). One of their critiques is that the original information is not preserved in the database, when records were created by combining pieces of information from overlapping sources. Interestingly, the total number of victims in the BBD is very close to the ICTY estimate: 102,622 war-​related deaths in Bosnia and Herzegovina in 1992–​1995 (Tabeau and Bijak, 2005).

4.7. Lists of missing persons During and after a conflict, various organizations and individuals often collect data on people who have disappeared and/​or are believed to have been killed. They do this to document what happened and to inform the relatives of the victims. Lists of missing persons due to forced disappearance have been collected and published in many countries. The most experienced and well-​known organization doing this, the International Committee of the Red Cross (ICRC),23 collects information from persons who have 23  International Committee of the Red Cross (2010) “Missing Persons and International Humanitarian Law.” Available at: https://​www.icrc.org/​en/​document/​protected-​persons/​missing-​persons (Accessed: September 19, 2019).

Mortality Estimates: Methods and Data Sources    497 lost contact with their family members or who suspect that they have been killed. ICRC does this to help family members to connect. During the wars in the former Yugoslavia in the 1990s, they assembled and published several lists with name, place of birth and residence, et cetera. Today there may, however, be less need for such exercises, since most people have mobile phones, making it easier for people to stay in touch even in chaotic situations, unless the regime interferes with phone reception and internet access. The ICTY has made extensive use of such lists of missing and dead persons, mostly stemming from ICRC but also from the Physicians for Human Rights (PHR), which assembled such lists to help identify exhumed bodies (see Section 5).

4.8.  Exhumations Exhumations of mass graves are important for several reasons, including legal and personal. The main goal is to identify the bodies. This has been greatly facilitated in recent years by the development of DNA analysis. Exhumations may involve several types of forensic expertise, including investigators, archaeologists, anthropologists, odontologists and pathologists (Skinner and Sterenberg, 2005). Victims of atrocity crimes are often buried in mass graves without any markings of names and are often concealed and hidden. In the wars in the former Yugoslavia, buried bodies were sometimes moved from one mass grave to another to hide the bodies and what had happened to them, as many were blindfolded and shot from behind. This complicated the identification of the dead bodies, as different parts of the bodies could be found in two or three separate mass graves, often far apart. Nevertheless, careful exhumations and analyses have made it possible to identify many bodies found in mass graves (Huffine et al., 2001). Data from exhumations in Bosnia and Herzegovina have been important evidence in trials at the ICTY. Based on DNA analysis, the identification of persons missing after the fall of Srebrenica in July 1995 increased from less than 1 percent in 2000 to 86 percent in 2013, as discussed in Section 5. There were no victim counts for the Khmer Rouge regime, but a mass grave mapping project (DC-​Cam) was conducted in Cambodia in the 1980s and identified 1.3 million human remains in the mapped mass graves (Tabeau and Kheam, 2009). The International Commission on Missing Persons (ICMP), created by the initiative of U.S. President Bill Clinton in 1996 at the G-​7 Summit in Lyon, has worked in many countries “to address the issue of people who have gone missing as a result of armed conflict, human rights abuses, disasters, organized crime, irregular migration and other causes.”24 Exhumations of mass graves have been conducted by ICMP and other organizations in countries such as Argentina, Brazil, Chile, Columbia, Congo, Croatia, East Timor, the

24  International Commission on Missing Persons (2020). Available at: https://​www.icmp.int/​about-​ us/​history/​ (Accessed: November 22, 2019).

498   Helge Brunborg former Yugoslavia, Guatemala, Kosovo, Libya, Serbia, Rwanda, and Ukraine (Huffine et al., 2001; Skinner and Sterenberg, 2005).25

4.9. Population registers A population register is a register of the entire population of a country (or region) with information about name, date of birth, marital status, and, if available, place of residence of each individual. This information is regularly updated with additions (births and immigrations) and losses (deaths and outmigrations), and changes in the status of the individuals, such as marriages, divorces, and place of residence.26 Good population registers are an extremely rich source of demographic data, but they have not yet been used to estimate atrocity deaths (to my knowledge), because there have not been any armed conflicts in countries with sufficiently good registers, which were primarily established in the Nordic countries in the 1960s. As population registers are established in more countries, they may one day become a valuable source to also estimate atrocity deaths. However, it is likely that a population register will not function very well in a war-​like situation. Moreover, population registers and other systems with data on individuals may be misused “to target vulnerable population subgroups for human rights abuses, including genocide, crimes against humanity, and forced migration” (Seltzer, 2005, p. 31).

4.10. Truth and reconciliation commissions Several truth and reconciliation commissions have collected data on human rights violations, including killings. This has been done in many countries, especially in Latin America, including Columbia, Guatemala, and Peru, as well as in Timor-​Leste (Ball et al., 2000; Davenport and Ball, 2002; Silva and Ball, 2006; Lum et al., 2010).

4.11. Population projections Population projections may be used to estimate what the population size would have been without a violent conflict. This assumes that there are population counts both before and after the conflict. The pre-​conflict population is projected forward by age and sex to the year of the post-​conflict census and a comparison with the actual population count is made, yielding an estimate of the excess mortality in the interval. To make such a projection, assumptions have to be made about what the demographic parameters would have been

25  See also International Commission on Missing Persons (2019) “Where we work.” Available at: https://​www.icmp.int/​where-​we-​work/​ (Accessed: September 20, 2019). 26  United Nations (2018) “Handbook on Civil Registration and Vital Statistics Systems: Management, Operation and Maintenance.” New York. Available at: https://​unstats.un.org/​unsd/​demographic-​social/​ Standards-​and-​Methods/​files/​Handbooks/​crvs/​crvs-​mgt-​E.pdf (Accessed: September 20, 2019).

Mortality Estimates: Methods and Data Sources    499 without the conflict. It is usually assumed that the levels of fertility, mortality, and migration are the same during the conflict period as before the conflict started. There are, however, normally secular trends in these parameters, especially mortality and fertility, which are declining over time in most countries but are difficult to quantify. Moreover, a violent conflict often vastly increases emigration from a region, which may be almost impossible to measure. This projection method is called the intercensal cohort-​component method (Shryock and Siegel, 1975). The method cannot, in general, distinguish between violent and non-​violent excess deaths. Heuveline (1998) used population projections between the 1962 census and the 1992 electoral list to estimate excess mortality in Cambodia. He divided this interval into several periods and projected the 1962 population forward to 1970 and the 1992 population backward to 1980, when an administrative population count had been done. He found that there were between 1.2 and 3.4 million excess deaths in 1970–​1979. Based on the age-​sex patterns of violent and non-​violent mortality, he estimated that there were between 0.6 and 2.0 million violent deaths during the Khmer Rouge regime in 1975–​1979.27 Neupert and Prum (2005) have also used population projections to estimate excess mortality for Cambodia in the 1970s, finding 1.4 million excess deaths. They had the advantage of using fertility and mortality estimates from the recent Cambodia Demographic and Health Survey in 1998, unlike Heuveline (1998).

4.12. Multiple systems estimation Sometimes there may be several and partially overlapping sources of victims, including both common and different variables about each individual, as in the lists of missing and dead people in Bosnia and Herzegovina (see Section 5). Merging such lists is a challenge, because each victim should be included only once and not two or more times. However, there are usually also some victims who are not recorded in any of the available sources. A method to estimate the total number of victims based on overlapping sources, including victims not recorded in any source, is called multiple systems estimation or capture-​tag-​ recapture. The method has been used in several settings to estimate the total number of atrocity victims (Ball et al., 2002; Ball et al., 2003; Brunborg et al., 2003; Lum et al., 2010; Manrique-​Vallier et al., 2013; Green and Ball, 2019). In this section various sources of data on atrocity deaths have been mentioned. In the next section, I present a specific project to estimate conflict mortality based on several of the data sources and methodologies previously discussed.

27  “The

reconstruction of the dynamics of the population of Cambodia with extreme demographic parameters allows for very different estimates of the number of excess deaths in the decade of the 1970s, ranging from 1.2 to 3.4 million.” (Heuveline, 1998, p. 59).

500   Helge Brunborg

5.  The Population Project at the ICTY This section details the ICTY population project established by the Office of the Prosecutor (OTP) in 1997 in order to provide estimates of conflict-​related mortality during the 1990s war in Bosnia and Herzegovina (BiH) for the purposes of ICTY investigations and trials. 28 The motivation for this was the existence of numerous estimates of the number of deaths due to the armed conflict in BiH during 1992–​1995. The ICTY investigators were uncertain about the reliability and relevance of the various estimates, which at that time ranged from 25,000 to 329,000 (Tabeau and Bijak, 2005). Information about deaths could be useful for investigation of crimes and perhaps as evidence in trials. When I started to work on this project in 1997, my initial plan was to use the pre-​war population as a starting point and to attempt to trace as many persons as possible by using all available data on dead persons and survivors, matching records on individuals based on name, date of birth, and so on. With a complete list of the post-​war population, the difference between the pre-​and post-​war populations would consist of dead and missing persons, taking account of refugees, displaced persons, births, “natural” deaths, and migrations during the war period. However, it soon became clear that this approach was not feasible, because reliable, relevant, and complete data sets were not available, for both the war and post-​war periods. A complete enumeration of the post-​war population in BiH had not yet been taken.29 Moreover, the plan to account for everybody would have required a completeness and quality of data that are rarely available for any country, especially in a war period. We concluded that we should focus on obtaining data on individual victims. Fortunately, there were several highly relevant, good-​quality data sources for Bosnia and Herzegovina, which had a good public infrastructure before and to some extent after the war. Over time, the population project at the ICTY managed to acquire several sets of good micro-​data for all or parts of Bosnia and Herzegovina, mostly in electronic format, including the following:

1. Lists of missing and dead persons from two organizations (ICRC and PHR); 2. People known or assumed to be dead based on media reports and witnesses; 3. Exhumations; 4. Pre-​war population census (1991); 5. Post-​war voters’ lists (1997, 1998, and 2000); 6. Displaced persons; 7. Refugees; 28 

Large parts of this section are adopted from Brunborg (2015). The last census before the war was taken in 1991 and the next census would normally be held 10 years later. However, the census was postponed until 2013, as the international community felt that the political conditions in BiH were not yet ready for a census that might serve to cement the ethnic cleansing that had occurred through forced displacement during the war. The 2013 census, which was monitored by an international group of observers headed by Eurostat, included several questions relating to the war period, such as being a refugee and internally displaced after April 30, 1991, but nothing on violent deaths during the war. See the census form at United Nations (1991), which is available at: http://​unstats.un.org/​ unsd/​demographic/​sources/​census/​quest/​BIH2013enIn.pdf (Accessed: October 29, 2019). 29 

Mortality Estimates: Methods and Data Sources    501 8. Army records of killed and missing persons; 9. Civil registration of deaths, including both violent and natural deaths; 10. People in detention during the war; 11. Funeral records; and 12. Hospital and ambulance records. We attempted to merge all these records, using name, father’s name, date and place of birth, place of residence, and other identifiers to match the records. We used the record linkage method to do this, but only deterministic and not probabilistic matching, because the lawyers required full certainty about numbers and individuals. This process demanded that the same identifiers were available in two or more records. However, it was often not possible to find any matches for a person because of wrong or missing records, misspelling, et cetera. The first presentation of demographic evidence to court was made in the trial of Radislav Krstić, who was charged with genocide, crimes against humanity, and violations of the laws or customs of war related to the fall of the enclave of Srebrenica in July 1995.30 In January 1999 the Office of the Prosecutor of the ICTY tasked the demography team to determine and report the minimum number of dead and missing persons related to the fall of the enclave (Brunborg and Urdal, 2000). Lists of missing and dead persons proved to be the most useful source of data on victims of atrocities in Bosnia and Herzegovina, especially the lists assembled by ICRC. The ICRC registered missing persons “to help families get an answer as to the fate of their missing loved ones.”31 Physicians for Human Rights (PHR) registered missing persons with the primary purpose to assist in identifying exhumed bodies and to help families to find out what happened to their missing relatives.32 While PHR concentrated mainly on persons missing from Srebrenica after the fall of the enclave in July 1995, the ICRC registered missing persons from all of Bosnia and Herzegovina throughout the war period 1992–​1995. Both organizations collected data primarily from close family members but occasionally accepted reports from more distant relatives, friends, and neighbors. The organizations registered persons presumed to be dead but whose bodies had not been found. The ICRC published several versions of its list of missing persons for Bosnia and Herzegovina and alsoa separate list of persons known to be dead. The objective of the report requested by the Office of the Prosecutor was to use these and other data sources to arrive at a reliable estimate of the number of people who were dead or still missing after the fall of Srebrenica. We were also asked to present a list of these individuals to the court with name, date of birth, and other details. Our approach was to merge the lists of missing persons from the ICRC and PHR, removing duplicates. If key variables, especially names and dates of birth, were identical in two separate lists, the 30 Case

Krstić (Amended Indictment) ICTY-​98-​33 (27 October 1999). Committee of the Red Cross (2007) “The Missing: Preventing Disappearances and Finding Answers.” Available at: https://​www.icrc.org/​eng/​resources/​documents/​interview/​missing-​ interview-​270807.htm (Accessed: September 20, 2019). 32 Physicians for Human Rights (2019) “Where We Work: Bosnia and Herzegovina.” Available at: https://​phr.org/​countries/​former-​yugoslavia-​bosnia-​and-​herzegovina-​and-​croatia/​ (Accessed: September 20, 2019). 31  International

502   Helge Brunborg matched records were assumed to represent the same person, otherwise not. The methods used to do this were: 13. Deleting duplicates, which could sometimes be difficult, because we did not know which of two almost identical records was the “correct” one (e.g., of twins). 14. Evaluating the quality of the data sources, which included checking the frequency of wrong, incomplete, or missing date of birth, and comparing the spelling of names against “correct” Bosnian names, sometimes correcting obvious spelling errors, such as replacing “Q” with “LJ.” 15. Excluding records of persons who were reported missing before July 11, 1995 and/​or were last seen alive far from Srebrenica. 16. Comparing the missing lists with pre-​and post-​war lists, such as the 1991 census and the 1997 and 1998 voters’ lists. Some of this was done using computer algorithms, but difficult or dubious cases needed special and time-​consuming attention. We also did some fuzzy matching, for example, comparing date of birth +/​–​3 years. We deleted matches that we were not certain about, taking a more conservative approach than if the work had been purely academic. The matching would have been much simpler if the unique ID number that was introduced in the former Yugoslavia in 1981 had been recorded in the missing lists as well as in the other sources, which was not the case, only partially in the electoral lists. There were empty, incomplete, or wrong fields in all lists, particularly for date of birth and date of disappearance. The year of these events was included for close to all, however. Other variables were recorded for almost everybody, but often with errors, particularly in the spelling of names of persons and places. These errors complicated the checking and matching of records from different lists. For difficult cases, the 1991 census was consulted for information about the person in question, for example, to verify date of birth, name of father, and place of residence. Another example of the use of merged lists was to extract information from one list that was not included in the other lists, for example ID number (from the voters’ lists and ethnicity from the census). The use of census records was crucial in concluding whether a pair of potential matches of records from two different lists represented the same person. Comparison with the voters’ lists was also done to identify potential survivors. We found nine such Srebrenica-​ related matches, which indicated that these people were either wrongly registered as missing, or that their identities had been misused in the voter registration. (Most of these persons were later found in mass graves.) The main finding was that at least 7,475 persons were dead or missing after the fall of Srebrenica (Brunborg and Urdal, 2000). Of these, the majority were found in both ICRC and PHR lists (5,712), a large part in the ICRC list only (1,586), and relatively few in the PHR list only (192). As mentioned earlier, nine persons were identified in voters’s lists and deleted as possible survivors, whereas six persons had been found alive according to ICRC but their names were not revealed. In addition, an unknown number of persons was probably not reported as missing, for various reasons.33 Our estimate was lower than the 33  Using multiple systems estimation (Section 4.12), resulted in only 53 additional victims, which indicates a high degree of registration of missing persons. However, another reason for this may be that the ICRC and PHR were not really independent, which is one of the assumptions of the method.

Mortality Estimates: Methods and Data Sources    503 1200

Number

1000 800 600 400 200 Age at the end of 1995 91–95

86–90

81–85

76–80

71–75

66–70

61–65

56–60

51–55

46–50

41–45

36–40

31–35

26–30

21–25

16–20

11–15

0

Figure 21.3  Number of missing men from Srebrenica by age at disappearance Source: Brunborg et al. (2003, p.239)

commonly used range of 8,000–​10,000 dead persons, which led to some critique in Bosnia and Herzegovina. It was found that 90 percent of the missing persons were men of “military age” (16–​60 years), as indicated in Figure 21.3. Only 48 (0.6 percent) were women and all but one was a Bosniak (Muslim). The analysis showed that the missing persons were real (and not made-​ up) persons who lived in the Srebrenica area before 1995. In 1999, when most of the data analysis was done, less than 2,000 bodies had been exhumed from Srebrenica-​related graves, and only 68 (0.9 percent) of them had been identified. There had been no DNA identifications, as such analyses were complicated and costly. However, DNA methodology has developed tremendously since then. By November 2013, the OTP list of missing and dead persons had grown to 8,047 persons, as shown in Table 21.1, which was presented as evidence at the trial of General Ratko Mladić.34 Fully 6,745 of these (83.8 percent) had been identified by comparing DNA profiles of bodily remains with those of close relatives of missing persons. The 355 additional persons in the overall total were included because they were exhumed from Srebrenica-​related graves, or their relatives testified on their disappearance details. The study of the Srebrenica missing and dead persons exemplifies the technique of using individual-​level data collected for other purposes to estimate the number of victims of atrocity crimes. The Srebrenica results were presented as evidence in 10 ICTY trials with a total of 15 accused, including Slobodan Milošević, Radovan Karadžić and Ratko Mladić (Brunborg, 2015). Evidence based on similar methods and sources was presented in testimonies and reports in about 20 other trials, including on the siege of Sarajevo and changes in the ethnic composition of a large area of Bosnia and Herzegovina, and was referred to in many of the judgments. The same microdata-​based methodology was

34 Case

Mladić (Fourth Amended Indictment) IT-​09-​92 (16 December 2011).

504   Helge Brunborg Table 21.1: Progress in establishing deaths of Srebrenica missing, 2000–​2013 Date of OTP Report

Srebrenica missing (OTP)

Srebrenica identified (ICMP)

Excluded potential survivors

Accepted victims (integrated)

Percent identified

12.02.2000 16.11.2005 11.01.2008 09.04.2009 21.07.2013

7,475 7,661 7,661 7,692 7,692

68 2,591 4,263 5,555 6,745

9 12 12 12 12

7,447 7,764 7,826 7,905 8,047

0.9 32.5 50.1 70.3 83.8

Source: Expert testimony of Ewa Tabeau in the Mladić case in November 2013. *The percentages were calculated by Ewa Tabeau based on the OTP missing lists.

applied to estimate the number of war-​related deaths in all of Bosnia and Herzegovina in 1992–​1995, using several additional sources. Tabeau and Bijak (2005) estimated 102,622 deaths, of which 55,261 (54 percent) were civilian. Previous estimates ranged from 25,000 to 329,000 deaths. It took some time to convince investigators and trial attorneys about the value of demographic evidence in court. One reason for their reluctance is the strict requirements for legal evidence. A few cases of faulty data might weaken or destroy the credibility of the researcher and the findings. Moreover, indirect and complicated methods, such as probabilistic analyses, would be met with skepticism, not understood by the judges, or be challenged by the defense lawyers. For legal purposes, not all war-​related deaths may be included in the documentation of a war crime in trials, as discussed in Section 2. To be on the conservative side, the prosecution may, for example, choose to exclude war-​related deaths for men of military age, often defined widely as 15–​60 years, even if the men were unarmed civilians when they were killed. But this depends on the actual situation and the charges. For the events following the fall of Srebrenica in 1995, all men were included in the estimates of the number of missing and dead persons, as most of them were exhumed from mass graves, unarmed, and not fighting, as corroborated by other evidence. Although demographic data and analyses have proved to be important evidence at war crimes trials, trial demography has several limitations. Demography is usually not able to distinguish or identify legally important categories such as civilian and military victims, “lawful” and “unlawful” victims, combat deaths, and collateral deaths. Moreover, a demographer is normally not able to say anything about who the perpetrators were and their motives for committing the crimes. Additional evidence is needed to answer such questions. But demographic findings can play an important role in supplementing such evidence, as well as giving an overview of the consequences of a conflict for the population. Demographers at the ICTY have sometimes been criticized, including by the accused Vojislav Šešelj, for not being independent, since they were employed by the Office of the Prosecutor of the ICTY. Tabeau (2009, p. 21) responded to this by saying that “I’m independent in my work, and nobody’s telling me how to do my work and what kind of results

Mortality Estimates: Methods and Data Sources    505 to obtain. The results are obtained from studying the sources, and from data processing, and from studying related materials.” Working for the prosecution has led to a cautious and conservative approach, attempting at estimating the minimum number of victims. In academic work there is usually more attention to estimating the likely number of victims. The disadvantage of the conservative approach is that the numbers may be lower than the most likely estimates. The presentation of demographic evidence at ICTY trials represents a breakthrough in the use of demographic evidence, including mortality estimates, in the prosecution of war crimes, crimes against humanity, and genocide at international criminal trials. This has had an impact on many judgments. Moreover, it has led to an emphasis on collecting and using data on individuals to estimate the number of victims in an armed conflict, rather than on more or less solid macro-​data, such as in the Nuremberg Trials after World War II. Unfortunately, there are many past and current conflicts where micro-​data are difficult or impossible to collect. Another implication of the ICTY use of demography is that methods developed for other purposes have been applied to the analysis of war crimes, crimes against humanity, and genocide, such as record linkage (see Section 3) and multiple systems estimation (see Section 4.12). The use of demographic evidence in war crime trials has stimulated the interest in the development of methods to study war crimes, including data collection (Obermeyer et al., 2008; Spagat et al., 2009). Finally, the extensive (and successful) use of demography at the ICTY has led to the establishment of a new scientific discipline, first called “demography of violence,” which was later changed to “demography of armed conflict” (to exclude regular crimes and domestic violence). Since 2000 there have been multiple seminars, conference sessions,35 articles, and books on this.36

6.  Concluding Remarks It is not easy to estimate reliable numbers of atrocity crime victims. There are many ways of doing it and many possibilities of going wrong. The potential data sources vary substantially in availability, representativeness, and quality. This chapter shows that the choice of methodology is essential for the results. Examples are presented for three countries that have undergone devastating civil wars and/​or

35  Including at the International Population Conferences of the International Union for the Scientific Study of Population (IUSSP) in 2005, 2009, and 2013. 36  IUSSP appointed two consecutive scientific committees on this topic: The Working Group on the Demography of Conflict and Violence (2002–​2004) and the Panel on the Demography of Armed Conflict (2005–​2009), both chaired by the author. The Working Group organized an international seminar on this theme in Oslo, November 8–​11, 2003, which resulted in special issues on demography and conflict in the Journal of Peace Research, 2005, 42(4) and the European Journal of Population, 2005, 21(2/​3), as well as the book The Demography of Armed Conflict (Brunborg et al., 2006). The major demographic reports presented at the ICTY have been collected in a book edited by Tabeau (2009).

506   Helge Brunborg oppressive regimes: Bosnia and Herzegovina (BiH) (1992–​1995: 25,000–​330,000 victims), Cambodia (1975–​1979: 1–​3 million victims), and Iraq (2003–​2008: 0.1–​1.2 million victims). This shows that it is essential to use high-​quality data and sound methods to obtain reliable estimates. Databases based on media and other reports usually underestimate the number of victims, by as much as 1/​10, whereas sample surveys are often small and biased. The most reliable data source seems to be lists of missing and killed persons corroborated by population census and exhumations, which was extensively used to estimate atrocity victims in BiH. For some conflict-​affected countries, there are numerous surveys and other data sources on atrocity mortality, such as Darfur and Congo in addition to those mentioned earlier, whereas for other countries, almost nothing has been done, such as Afghanistan and northern Sri Lanka (Checchi, 2010). Estimates of atrocity crimes should be evaluated critically because of the methodological challenges and because “[p]‌arties to a conflict frequently seek to shape the numbers and beliefs about the causes behind them because they know the results can have serious consequences in the realms of politics, justice, and social reconstruction. They want the ‘facts’ to support their political, legal, or social claims” (Seybolt et al., 2013, p. 3). When the number of atrocity victims is estimated and presented, the category of victims should be specified, if possible. The most important distinction is between victims directly affected by warfare activities and victims indirectly affected because of deteriorated living standards and deficient health care. It is also important to specify whether the victims are military or civilian and killed in battle or not. It is often not possible to make these distinctions, and the total number of excess deaths in a conflict is the only estimate that can be made. Another distinction relates to different categories of crime according to international law, in particular genocide, war crimes, and crimes against humanity. It can be very challenging to obtain data that reflect these categories. Some conflict-​related deaths are “legal,” meaning that perpetrators cannot be punished for them according to international criminal law, such as battle deaths of fighting soldiers, whereas other are “illegal,” such as executions. Unfortunately, “[t]‌here are, as yet, no tools to critically appraise the quality of evidence from armed conflict studies and it is clear that there is a pressing need for the development of appraisal checklists, and further consideration of systematic reviews/​meta-​analyses of humanitarian emergency data” (Tapp et al. 2008, p. 9). Moreover, “there is a need to improve upon and standardize practical epidemiological methods for the systematic collection of information, such as mortality data, during and after periods of conflict” (Spiegel and Salama, 2000, p. 2208).

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508   Helge Brunborg Dodge, Y. (ed.) (2003) The Oxford Dictionary of Statistical Terms. Oxford: Oxford University Press. Fenrick, W.J. (2006) “International Humanitarian Law and Combat Casualties.” In: Brunborg, H., Tabeau, E., and Urdal, H. (eds.) The Demography of Armed Conflict. Dordrecht: Springer, pp. 179–​196. Green, A.H., and Ball, P. (2019) “Civilian Killings and Disappearances during Civil War in El Salvador (1980–​1992).” Demographic Research 41(27), pp. 781–​814. Hacker, J.D. (2011) “A Census-​Based Count of the Civil War Dead.” Civil War History 57(4), pp. 307–​348. Heuveline, P. (1998) “‘Between One and Three Million’: Towards the Demographic Reconstruction of a Decade of Cambodian History (1970–​79).” Population Studies 52(1), pp. 49–​65. Heuveline, P. (2015) “The Boundaries of Genocide: Quantifying the Uncertainty of the Death Toll during the Pol Pot Regime in Cambodia (1975–​79).” Population Studies 69(2), pp. 201–​218. Heuveline, P., and Poch, B. (2007) “The Phoenix Population: Demographic Crisis and Rebound in Cambodia.” Demography 44(2), pp. 405–​426. Hill, K., Seltzer, W. , Leaning, J., Malik, S. J. and Russell, S. S. (2008) “The demographic impact of Partition in the Punjab in 1947.” Population Studies 62(2), pp. 155–​170. Huffine, E., Crews, J., Kennedy, B., Bomberger, K., and Zinbo, A. (2001) “Mass Identification of Persons Missing from the Break-​up of the Former Yugoslavia: Structure, Function, and Role of the International Commission on Missing Persons.” Croatian Medical Journal 42(3), pp. 271–​275. Johnson, N.F., Spagat, M., Gourley, S., Onnela, J.P., and Reinert, G. (2008) “Bias in Epidemiological Studies of Conflict Mortality.” Journal of Peace Research 45(5), pp. 653–​663. Johnson, R.E. (1992) “A Half-​Century of Silence: The 1937 Census.” Russian Studies in History 31(1), pp. 3–​8. Jones, N.A. (2010) The Courts of Genocide: Politics and the Rule of Law in Rwanda and Arusha. Oxon and New York: Routledge. Kenney, G. (1995) “The Bosnia Calculation.” New York Times Magazine, April 23. Kiernan, K. (2010) “The Demography of Genocide in Southeast Asia: The Death Tolls in Cambodia, 1975–​79, and East Timor, 1975–​80.” Critical Asian Studies, 35(4), pp. 585–​597. Lacina, A., and Gleditsch, N.P. (2005) “Monitoring Trends in Global Combat: A New Dataset of Battle Deaths.” European Journal of Population 21(2–​3), pp. 145–​166. Li, Q., and Wen, M. (2005) “The Immediate and Lingering Effects of Armed Conflict on Adult Mortality: A Time-​Series Cross-​National Analysis.” Journal of Peace Research 42 (4), pp. 471–​492. Lum, K., Price, M., Guberek, T., and Ball, P. (2010) “Measuring Elusive Populations with Bayesian Model Averaging for Multiple Systems Estimation: a Case Study on Lethal Violations in Casanare, 1998–​2007.” Statistics, Politics and Policy 1(1), pp. 1–​26. Manrique-​Vallier, D., Price, M.E., and Gohdes, A. (2013) “Multiple Systems Techniques for Estimating Casualties in Armed Conflicts.” In: Seybolt, T.B., Aronson, J.D., and Fischhoff, B. (eds.) (2013) Counting Civilian Casualties: An Introduction to Recording and Estimating Nonmilitary Deaths in Conflict. Oxford: Oxford University Press, pp. 165–​182. Merridale, C. (1996) “The 1937 Census and the Limits of Stalinist Rule.” The Historical Journal 39(1), pp. 225–​240.

Mortality Estimates: Methods and Data Sources    509 Neupert, R.F., and Prum, V. (2005) “Cambodia: Reconstructing the Demographic Stab of the Past and Forecasting the Demographic Scar of the Future.” European Journal of Population, 21(2-​3), pp. 217–​246. Obermeyer, Z., Murray, C.J.L., and Gakidou, E. (2008) “Fifty Years of Violent War Deaths from Vietnam to Bosnia: Analysis of Data from the World Health Survey Programme.” British Medical Journal 336, pp. 1482–​86. Roberts, L., Lafta, R., Garfield, R., Khudhairi, J., and Burnham, G. (2004) “Mortality before and after the 2003 Invasion of Iraq: Cluster Sample Survey.” The Lancet 364, pp. 1857–​1864. Roser, M. (2019) “War and Peace.” Our World in Data. Available at: https://​ourworldindata.org/​ war-​and-​peace. (Accessed: August 12, 2019). Seligson, M.A., and Mcelhinny, V. (1996) “Low-​Intensity Warfare, High-​Intensity Death: the Demographic Impact of the Wars in El Salvador and Nicaragua.” Canadian Journal of Latin American and Caribbean Studies 21(42), pp. 211–​241. Seltzer, W. (1998) “Population Statistics, the Holocaust, and the Nuremberg Trials.” Population and Development Review 24(3), pp. 511–​552. Seltzer, W. (2005) “On the Use of Population Data Systems to Target Vulnerable Population Subgroups for Human Rights Abuses.” Coyuntura Social 32, pp. 31–​44. Seybolt, T.B., Aronson, J.D., and Fischhoff, B. (eds.) (2013) Counting Civilian Casualties: An Introduction to Recording and Estimating Nonmilitary Deaths in Conflict. Oxford: Oxford University Press. Sharma, G.K. (2006) “Leading Causes of Mortality from Diseases and Injury in Nepal: A Report from National Census Sample Survey.” Journal of Institute of Medicine 28(1), pp. 7–​11. Shryock, H.S., and Siegel, J.S. (1975) The Methods and Materials of Demography. Washington, D.C.: U.S. Department of Commerce, Bureau of the Census. Silva, R., and Ball. P. (2006) The Profile of Human Rights Violations in Timor-​Leste, 1974–​1999. Palo Alto, CA: Benetech. Skinner, M., and Sterenberg, J. (2005) “Turf Wars: Authority and Responsibility for the Investigation of Mass Graves.” Forensic Science International 151(2-​3), pp. 221–​232. Spagat, M. (2010) “Ethical and Data‐Integrity Problems in the Second Lancet Survey of Mortality in Iraq.” Defence and Peace Economics 21(1), pp. 1–​41. Spagat, M., and Dougherty, J. (2010) “Conflict Deaths in Iraq: A Methodological Critique of the ORB Survey Estimate.” Survey Research Methods 4(1), pp. 3–​15. Spagat, M., Mack, A., Cooper, T., and Kreutz, J. (2009) “Estimating War Deaths: an Arena of Contestation.” Journal of Conflict Resolution 53(6), pp. 934–​950. Spiegel, P.B., and Salama, P. (2000) “War and Mortality in Kosovo, 1998–​99: An Epidemiological Testimony.” The Lancet 355, pp. 2204–​2209. Tabeau, E. (ed.) (2009) Conflict in Numbers. Casualties of the 1990s Wars in the Former Yugoslavia 33. Belgrade: Helsinki Committee for Human Rights in Serbia. Tabeau, E., and Bijak, J. (2005) “War-​related Deaths in the 1992–​1995 Armed Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results.” European Journal of Population 21 (2-​3), pp. 187–​215. Tabeau, E., and Kheam, T. (2009) “Khmer Rouge Victims in Cambodia, April 1975–​January 1979: A Critical Assessment of Major Estimates.” Phnom Penh: Demographic Expert Report, Extraordinary Chambers in the Courts of Cambodia. Tabeau, E., and Zwierzchowski, J. (2013) “A Review of Estimation Methods for Victims of the Bosnian War and the Khmer Rouge Regime.” In: Seybolt, T.B., Aronson, J.D., and Fischhoff,

510   Helge Brunborg B. (eds.) Counting Civilian Casualties: An Introduction to Recording and Estimating Nonmilitary Deaths in Conflict. Oxford: Oxford University Press, pp. 213–​243. Tapp, C., Burkle Jr., F.M., Wilson, K., Takaro, T., Guyatt, G.H., Amad, H., and Mills, E.J. (2008) “Iraq War Mortality Estimates: a Systematic Review.” Conflict and Health 2(1), pp. 1–​13. Verwimp, P. (2004): “Death and Survival during the 1994 Genocide in Rwanda.” Population Studies 58(2), pp. 233–​245. Wagner, Z., Heft-​Neal, S., Bhutta, Z.A., Black, R.E., Burke, M., and Bendavid, E.B. (2018) “Armed Conflict and Child Mortality in Africa: A Geospatial Analysis.” The Lancet 392, pp. 857–​865. Wheatcroft, S.G. (1990) “More Light on the Scale of Repression and Excess Mortality in the Soviet Union in the 1930s.” Soviet Studies 42(2), pp. 355–​367.

CHAPTER 22

At ro cit y Cri me s a nd Ec o ci de Interrelations between Armed Conflict, Violence, and Harm to the Environment Daan P. van Uhm 1.  Introduction The changing ecological conditions in a globalizing world confront human societies with new challenges. Environmental degradation has become an important topic of discussion in the context of atrocity crimes connected to large-​scale pollution, global deforestation, the disappearance of species, and global warming. The exploitation of the natural environment is not only a potential driver for mass atrocity crimes (Alvarez, 2017), but mass atrocity crimes can also have devasting effects on the environment (Weinstein, 2005; White, 2012). For example, armed conflicts “have continued to cause significant damage to the environment—​directly, indirectly, and as a result of a lack of governance and institutional collapse” (UNEP, 2009, p. 8). As the United Nations Environment Programme (UNEP) observed: the “exploitation of natural resources and related environmental stresses can be implicated in all phases of the conflict cycle, from contributing to the outbreak and perpetuation of violence to undermining prospects for peace” (UNEP, 2009, p. 5). Due to the clear connections between the environment and the onset, financing, conduct, conclusion, and recovery from armed conflict, there is a serious debate whether the environment should be addressed as a matter of international peace and security (e.g., Berat, 1993; Gray, 1996; Higgins, 2010; Hendrix and Salehyan, 2012). The concern that the environment is often harmed during armed conflict is reflected by Principle 24 of the Rio Declaration on the Environment and Development: Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.1 1 

“Report of the United Nations Conference on Environment and Development” (Rio de Janeiro, 3–​14 June 1992) (12 August 1998) A/​CONF.151/​26/​Rev.1; Rio Declaration on Environment and Development, (12 August 1992 A/​CONF.151/​26) (Rio Declaration).

512    Daan P. van Uhm The use of inhumane weapons such as poisonous gas, landmines, chemical defoliants, scorched-​earth practices, as well as the violation of protected natural areas through troop movement, poaching for food, and actual combat reflect the multidimensional environmental impact of armed conflicts. During warfare combatants have often “deliberately or indiscriminately targeted the environment in order to deprive opposing troops of cover, food, and water” (Bruch, 2001, p. 697). At the same time, armed groups plunder natural resources under their control to finance military operations, which further invites attacks on those resources from opposing forces (Nietschman, 1990; Weinstein, 2005). Moreover, conflict disrupts and usually disables the regulatory authorities that typically enforce environmental protection (Homer-​Dixon, 2001; Machlis and Hanson, 2008).2 In 2016, the Policy Paper on Case Selection and Prioritization issued by the Prosecutor’s Office at the International Criminal Court (ICC) stated that atrocity crimes committed through, or resulting in, the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land warrant particular attention when selecting cases for investigation and prosecution (ICC, 2016). The expansion of its potential focus to include environmental crimes among prioritized cases illustrates the need for an examination of the interrelationship between atrocity crimes and anthropogenic environmental degradation. This chapter will start with a brief description of the human impact on the environment in order to contextualize the prioritization of the ICC. The environment as a cause, tool, and victim of armed conflict will be discussed and the interpretation of the environment in the context of the three categories of mass atrocity crimes under the Rome Statute3—​genocide, crimes against humanity, and war crimes—​will be analyzed. Thereafter, the history of ecocide as a missing crime under the Rome Statute will be examined and the chapter will conclude with a discussion.

2.  Environmental Harm in the Anthropocene Today, scientists from different disciplines speak of a new age that has arrived, the Anthropocene, an era that follows the Holocene Epoch (Steffen et al., 2011; Bonneuil and Fressoz, 2013). The Holocene, a period that started after the last ice age about 12,000 years ago, is known as a relatively stable environmental and climatological period in which humanity could develop by the planetary infrastructure of ecological services (Hamilton, 2013; 2 

Armed conflicts have caused UNESCO to list several national parks, including the Virunga National Park in the Democratic Republic of the Congo and Los Katíos National Park in Colombia, as being in danger. See UNESCO (n.d.) List of World Heritage in Danger, available at: http://​whc.unesco.org/​en/​ danger/​(Accessed: September 23, 2019). 3   Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute).

Atrocity Crimes and Ecocide    513 Costanza et al., 1997).4 However, the collapse of the European pre-​industrial institutions and the development of new technologies has drastically changed the world’s ecosystems (Steffen et al., 2007, p. 850; Van Uhm, 2018a). In contrast to the Holocene, the Anthropocene is characterized as a period in which the earth and atmosphere experience major consequences (such as changes in the atmosphere, lithosphere,5 biosphere, cryosphere,6 and oceans) due to human activities (Crutzen, 2002; Hamilton, 2013). According to the Dutch Nobel Prize–​winning meteorologist Paul Crutzen and biologist Eugene Stoermer (2000), the perspective of a commodified nature7 influenced how human activities affected many planetary systems and how humans became geological actors (Chakrabarty, 2009; Brisman and South, 2018). This is illustrated by significant socioeconomic trends, such as population growth, consumption, and transport, as well as changes in the global Earth system, including an increase in concentrations of carbon dioxide, deforestation, and the decline of biodiversity in the 19th and 20th centuries. For instance, climate change, biodiversity loss, and a reduction in ecosystem health reflects the anthropogenic effects (Alvarez, 2017). Modern forms of warfare impact the environment significantly, as is illustrated by the defoliated jungles in Vietnam, the ignited oil fields in Kuwait, and the emptied marshes in southern Iraq (Weinstein, 2005, p. 698). “The human imprint on the global environment has now become so large and active that it rivals some of the great forces of Nature in its impact on the functioning of the Earth system” argue climatologist Steffen and colleagues (2011, p. 842) in their renowned article “The Anthropocene: Conceptual and Historical Perspectives.” Gradually, the previously ignored environmental problems, such as deforestation, pollution, global warming, and wildlife trafficking are on the global agenda (Steffen et al., 2011; Van Uhm, 2016a; Van Uhm 2016b; Brisman and South, 2018). It has become clear that the protection of the environment is not only about a specific nature-​related interest, but also about the systemic preservation of the commons of nature essential for the life conditions of human beings and flora and fauna (Hardin, 1968; Chakrabarty, 2009). The Anthropocene signifies a new role for humankind—​as a species that adopted to changes of the natural environment to a driving force of environmental degradation (Crutzen and Stoermer, 2000; Steffen et al., 2011; Brisman and South, 2018). This means that we have to rethink our most foundational assumptions and reinterpret the principles of international law, as we can no longer approach our environment as independent to humanity (Holley and Shearing, 2018).

4 

For example, clean drinking water, the decomposition of wastes and the natural pollination of crops. The lithosphere is the solid, outer part of the Earth, including the brittle upper portion of the mantle and the crust. 6  The cryosphere is those portions of Earth’s surface where water is in solid form, including sea ice, lake ice, river ice, snow cover, glaciers, ice caps, ice sheets, and frozen ground (which includes permafrost). 7  Nature became commodified and overexploited without humans understanding and acknowledging biophysical security, in contradiction to many indigenous people recognizing human’s interconnectedness with the natural world (Whyte et al., 2017; Van Uhm and Grigore, 2021). 5 

514    Daan P. van Uhm

3.  Armed Conflict, Warfare, and the Environment The environmental destruction during armed conflicts is not a new topic for study. During armed conflict and warfare,8 the environment has been studied as a cause, a tool, and a victim of armed conflict (Ross, 1992; Weinstein, 2005). Military historians have generally approached the environment as an independent or intervening variable influencing military strategy, tactics, and outcomes (Keegan, 1993; Townshend 2000). Ecologists highlighted the environmental consequences of war and conflict-​related activities, for example, battlefield contamination, nuclear testing, post-​war refugee movements, and operational training (Homer-​Dixon, 2001). Political scientists argued that resource conflicts are an important cause of armed conflict and modern warfare (Westing, 1984; Klare, 2005), while military planners considered climate change as affecting security and ecosystem services in the restoration of peace (CNA, 2007). In the next sections, the environment as cause of armed conflict, tool of armed conflict, and victim of armed conflict will be further discussed.

3.1. The environment as cause of armed conflict Remarkably, more than 80 percent of the major armed conflicts in the second half of the 20th century occurred within biodiversity hotspots (Hanson et al., 2009). Even more so, countries with an abundance of natural resources on average seem to experience lower economic development levels than countries with fewer natural resources, the so-​called resource curse (Sachs and Warner, 2001; Kolstad and Søreide, 2009, p. 214). Ross (2003, p. 5) noted that “[i]‌t may seem paradoxical that a ‘gift’ from nature of abundant oil, gold or gemstones tends to cause economic distress. Yet study after study has found that resource-​ dependent economies grow more slowly than resource-​poor economies.”9 Brisman and South (2013, p. 57) clarify that “the damaging and divisive exploitation of environmental wealth in forms such as illegal trades in diamonds, timber, and wildlife . . . in turn, have generated funds that have supported and perpetuated internal conflicts, corruption, and the externalising of economic surplus.” From this perspective, the presence of an abundance of natural resources appears to be detrimental to a country’s development and seems to correlate with armed conflict, violence, and crime (Kolstad and Søreide, 2009; Boekhout van Solinge, 2014, p. 501; Brisman and South, 2013; Van Uhm, 2018b). Particularly in the Global South, many conflicts and wars took place because of such territorial disputes in the past decade (Homer-​Dixon, 2001; Conteh-​Morgan, 2004; Bellamy, 2011; Brisman et al., 2015). Based on the desire to control land so as to extend power, ensure security, punish, or to repatriate, the natural

8 

An armed conflict is a conflict between armed troops, while war is a state of armed conflict among states, governments, societies, and informal paramilitary groups (Stewart, 2003). 9  Even though many scholars find a negative relationship among natural resources, economic growth, and democracy, some scholars dispute the resource curse (e.g., Wright and Czelusta, 2004).

Atrocity Crimes and Ecocide    515 resources linked to the land are often an important reason to substantiate actions of dispossession, forced displacement,10 and land grabbing (Buzan et al., 1995; Brisman et al., 2015; Borges, 2018). For example, Colombia has the largest population of displaced persons in the world, with 4.9 million displaced people (about 1 in every 10 Colombians) registered in 2012, including many indigenous people.11 Reports indicate that almost one quarter of the Katío Emberá people (living west of the Atrato River near Los Katios National Park) have been displaced because of conflicts over areas with natural resources, while land grabbing became an ordinary practice (Suman, 2007, p. 568; Runk, 2017).12 In the case of Colombia, even public investment in natural resource businesses may create “perverse incentives” to armed actors, favoring forced displacement and land grabbing (Grajales, 2011, p. 785). Such forms of displacement and land grabbing result in violence between local people and companies or crime groups and officials and can be seen as drivers of armed conflict and war, while the profits from such resource exploitation may benefit repressive regimes or crime groups at a massive cost to the local populations (Embree, 2015; Goyes and South, 2015). In addition to an abundance of natural resources, emissions of greenhouse gasses impact global warming and increase the sea levels, but also cause new phenomena such as El Niño in the Americas, which contribute to conflict over natural resources, according to recent books and reports (e.g., White 2012; Alvarez, 2017). A United Nations report states, for example, that Darfur’s conflict that started in 2003 is partly rooted in the phenomenon of desertification and competition for scarce land and water (UNEP, 2009), while Alvarez (2017) explains in his book Unstable Ground: Climate Change, Conflict, and Genocide how climate change caused massive drought that ravaged Syria from 2006 to 2011 and was subsequently responsible for the conflict there. Hendrix and Salehyan (2012) discuss the implications of climate change with extreme deviations in rainfall that correlate with civil war and insurgency. These examples illustrate how resource revenues and global warming have served to stoke conflict, from the Iraqi invasion of Kuwaiti oil fields and the drought that overwhelmed Syria, to civil wars and conflicts financed by diamonds in West Africa (Le Billon, 2013). Similar “narratives” were also employed in past and ongoing prosecutions of individuals for atrocity crimes at the International Criminal Court when the context of the crimes is described. For example, in the Lubanga judgement, the ICC argued that exploitation of natural resources in the Ituri region of the Democratic Republic of the Congo (DRC) fueled the armed conflict.13 Similarly, in another DRC case against Bosco Ntaganda, the ICC Office of the Prosecutor argued when describing the context of the individual charges that “[t]‌he

10  For instance, it has been indicated that 87 percent of displaced people came from areas with a heavy presence of extractives (GITOC, 2016). 11  For instance, in Chocó, a department of Colombia, an estimated 50,000 people have been displaced (e.g., Rio Sucio, Jurado, Cacarica, Unguía, and Acandí close to the Panamanian border) between 1996 and 2001 (Suman, 2007, p. 568). 12  This is nine times the national average of displaced people (Suman, 2007, p. 569). 13  Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (Judgment Pursuant to Article 74 of the Statute) ICC-​01/​04-​01/​06-​2842 (14 March 2012), para. 76.

516    Daan P. van Uhm district of Ituri is rich in natural resources, including gold, diamonds, coltan, timber and oil. . . . Competition over these resources has, in many ways, fanned the flames of conflict in the area.”14

3.2. The environment as a tool of armed conflict One of the first recorded forms of environmental modification as a tool of warfare is the case of the Eurasian nomads, the Scythians, in the Persian-​Scythian War of 512 BCE. As the Scythians retreated, they practiced a “self-​inflicted scorched earth policy in an effort to hinder the Persian advance” (Ross, 1992, p. 516). Another example includes the ancient Romans, who, after conquering Carthage, destroyed the city and salted the fields around it in order to sterilize the area’s soil during the Third Punic War of 149–​146 BCE (Ross, 1992, p. 517). In 1213 to 1224 CE, the Mongolian incursions into Mesopotamia resulted in the massive elimination of all unappropriated crops and livestock. Under the supervision of Genghis Khan, the Mongols destroyed the major irrigation works of the Tigris River upon which the indigenous civilization of Mesopotamia depended for agriculture (SIPRI, 1980). More recently, the intentional modification of the environment as a tool of war can be illustrated by the Second Indochina War (otherwise known as the Vietnam War) of 1961–​1975 (Lopez, 2007). During this war, the United States utilized a strategy which included massive rural bombing, chemical and mechanical deforestation, large-​scale crop destruction, and intentional disruption of natural and human ecologies (Ross 1992, p. 518). The United States was, for instance, able to destroy 8 percent of the region’s croplands, 14 percent of its forests, and half of its mangrove swamps with Agent Orange in order to eliminate the environment used by the Viet Cong troops (Morrison, 1991). In addition to environmental modification, animals were also deployed during warfare. Perhaps the best-​known example is Hannibal, who took an army of 37 elephants across the Alps to battle the Roman cavalry in 218 BC (Van Uhm, 2018a). Yet, during the First and Second World Wars, animals were used as “weapons.” During World War I, the Russians equipped dogs with explosives in order to crawl under tanks, causing explosions, and during World War II, there was an attempt by behaviorist Skinner to develop a “pigeon guided missile,” a pigeon-​controlled guided bomb (Ross, 1992). The pigeons were trained by operant conditioning to recognize the target and correct any deviations in order to keep the bomb on its glide path (Capshew, 1993). A few years later, an experimental weapon called “napalm bats” was tested by the United States. The napalm was sutured underneath the skin, and the bats would be dropped over Japanese cities containing industrial and military targets (Ross, 1992). Such examples show how the environment, including animals, are being used as a tool during armed conflict, causing significant harm.

14  Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Bosco Ntaganda (Public redacted version of “Prosecutor’s Pre-​Trial Brief ”) ICC-​01/​04-​02/​06-​503-​Conf-​AnxA (9 March 2015), para. 7.

Atrocity Crimes and Ecocide    517

3.3. The environment as a victim of armed conflict From the early 20th century, the environmental consequences of armed conflict were immense because of new strategies where the environment was targeted as a warfare strategy, but also due to the unintentional harmful consequences of warfare. This can be illustrated by Iraq’s intentional environmental warfare, whereby Saddam Hussein burned Kuwaiti oil wells, refineries, and storage tanks as environmental defense, which resulted in large spills of oil in the Persian Gulf (Ross, 1992).15 However, this damaged not only the fragile ecosystem of the Persian Gulf significantly (over three million barrels of crude oil fouled the waters, covering more than 450 miles of coastline) but also resulted in acid rain falling from Bulgaria to Pakistan as a result of the fires (Ross, 1992).16 After the Vietnam War, the affected vegetation was unable to regenerate and left behind bare mudflats, even years after the chemical defoliants were sprayed from the air to destroy the jungle hiding places of the Viet Cong guerrillas. The long-​term effects of the warfare were identified by looking at modified species distribution patterns through habitat degradation and loss in wetland systems that absorbed the runoff from the mainland (Sterling et al., 2006). Other examples include the Kosovo conflict in 1999, in which the military operations conducted by NATO against Yugoslavia caused serious damage to the country’s natural environment, or the Rwandan war in the early 1990s that left national parks polluted with landmines (Kanyamibwa, 1998; Ordway, 2015).17 In addition to the ecosystems that were affected during the Vietnam War, wildlife biodiversity degraded significantly. A study of an inland valley found only 24 species of birds and 5 species of mammals, compared with 145–​170 bird species and 30–​55 kinds of mammals in two unsprayed reference valleys (Thang, 1984). Other studies underlined the decline of species abundance, such as wild boar, buffalo, tiger, and deer (Freedman, 2013).18 Following the Vietnam War, which was characterized by military tactics such as widespread application of defoliants, removal of topsoil, and alleged weather manipulation (e.g., Fleming, 2006), the international community adopted three conventions to constrain the actions of belligerents. Furthermore, a broad array of weapons, such as the use of landmines as well as

15 

This was influenced by the idea that black smoke from the blazes would confound U.S. ground and air forces. In addition, it was believed that the oil slick might present difficulties to coalition troops in an attempt to land on the Kuwaiti coast, that it could serve as a wall of fire forcing allied naval vessels to operate further offshore, or to clog Saudi desalinization plants which fed water and served as the supply for coalition troops (Ross, 1992). 16  On the other hand, war and conflict can also relieve pressure on biodiversity through “altered settlement patterns, the creation of de facto buffer zones, and reductions in resource-​based economic activity” (Hanson et al., 2009, p. 579). While conflicts frequently caused environmental degradation, peace can be even worse with forest exploitation to operate with impunity (McNeely, 2003). 17  Parliamentary Assembly of the Council of Europe (PACE) Environmental Impact of the War in Yugoslavia on South-​East Europe. Doc. 8925. 10 January 2001. Available at: http://​assembly.coe.int/​nw/​ xml/​XRef/​X2H-​Xref-​ViewHTML.asp?FileID=9143&lang=EN (Accessed: January 10, 2020). 18  The destruction of the environment by war and conflict in the context of species extinction can also be illustrated by the Central African Republic, where the influx of small arms from the conflicts in Chad and Sudan resulted in a transition to more deadly hunting practices, which in turn contributed to a reported reduction of the elephant population by around 90 percent between the 1970s and 1990s, and the virtual extinction of the rhinoceros population (Jha, 2014; Gillett, 2017).

518    Daan P. van Uhm biological and chemical weapons, are now criminalized in the Rome Statute because of their destructive effects on both humanity and the natural environment (Bruch, 2001). This section showed that armed conflicts and the environment are interconnected and can be analyzed through different levels—​as a cause, as a tool, and as a victim. While armed conflicts as such are not criminalized, many atrocity crimes occur during armed conflict. Therefore, the next section focuses on mass atrocity crimes and how the international criminal courts and tribunals, including the ICC, addressed environmental harms in their prosecutions of individuals for mass atrocity crimes.

4.  Atrocity Crimes and the Environment The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court.19 Under the Rome Statute, the ICC investigates and tries individuals charged with the gravest crimes of concern to the international community (Schabas, 2011; Cassese and Gaeta, 2013; Smeulers et al., 2015). International crimes as stipulated under the Rome Statute (e.g., genocide, crimes against humanity, and war crimes) are manifestations of collective violence, which is considered to endanger international peace and security (Scheffer, 2006; Smeulers and Haveman, 2011). Even though the environment is not so prominent in the ICC statute—​in many respects, the prohibited crimes are predominantly serious violence against humans—​the environmental concerns can be identified in the Rome Statute definitions through various examples. Therefore, the atrocity crimes of genocide, crimes against humanity, and war crimes will be discussed in relation to the environment in the next section.

4.1. Genocide and the environment Genocide is defined under the Rome Statute (Article 6) as acts “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”20 Article 6(c) continues on to assert that genocide is the act of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”21 From that perspective, Lopez (2007) states that Article 6(c) of the Rome Statute could provide the means to punish environmental cleansing. Environmental cleansing is the “deliberate manipulation and misuse of the environment so as to subordinate groups based on characteristics such as race, ethnicity, nationality, religion and so forth” (Borges, 2018, p. 65). Weinstein (2005) emphasized how the case of the Marsh Arabs in Southern Iraq in the 1990s could be considered as genocide because of the intention to destroy the Shi’a Muslims

19 

Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 20  Rome Statute, art 6. 21  Rome Statute, art 6(c).

Atrocity Crimes and Ecocide    519 through the physical destruction of the region by drying the Mesopotamian Marshes, which the people depended on for survival. This was done through killing but also through environmental destruction that consequently resulted in the deaths of large numbers of Marsh Arabs (Smith, 2013). Gillett (2017) refers to the indictment and charges of the ICC Prosecutor against former Sudanese President Omar Al-​Bashir with genocide under Article 6(c) for “deliberately inflicting on [the Fur, Masalit, and Zaghawa ethnic groups] conditions of life calculated to bring about their physical destruction in part.”22 These affected conditions of life resulted from destroying or depleting natural resources that the populations relied on for their survival, such as food and the contamination of the wells and water pumps (Gillett, 2017). These cases illustrate how environmental devastation can be used as an intentional tool or “major accelerator” of genocide (Weinstein, 2005, p. 714; Smith, 2013). In addition, the environmental devastation of regions inhabited by indigenous peoples whose culture, customs, and survival depend on the environment could arguably be considered as genocide. Bruch (2001, p. 727) describes how environmental degradation has serious impact on indigenous peoples’ survival by focusing on the Ecuadorian Amazon: “oil exploration and development in the Ecuadorian Amazon would devastate the environment and lead to ethnocide of indigenous peoples living in the region.”23 Smith (2013) illustrates the harmful impact of environmental degradation on the situation of the indigenous Aché people in Paraguay during the 1970s. State policies encouraged mining and livestock in forests where the Aché were living. Consequently, the Aché were “brutally targeted and their forested area of habitation was destroyed with the aim of removing them from the land” (Smith, 2013, p. 48). However, it has been argued by scholars that the specific genocidal intent remains very difficult to establish in the context of the “genocide” through environmental degradation. It may be a case of the negligence of the factories in the Ecuadorian Amazon that led to the environmental devastation (Lopez, 2007; Gillett, 2017). Paraguayan officials argued that the Aché were targeted because their land was desired, and not because they were indigenous, and as a result, it “was not genocide” (Smith, 2013, p. 48).

4.2. Crimes against humanity and the environment Crimes against humanity under the Rome Statute (Article 7) are defined as any listed act “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”24 The most relevant Articles of the Rome Statute from an environmental crime perspective include the prohibitions of extermination,25 forcible transfer of population,26 persecution,27 and other inhumane acts28 (Smith, 2013). Although

22  Situation in Darfur, The Sudan (Summary of Prosecution’s Application under Article 58) ICC-​02/​ 05-​152 (14 July 2008), para. 1. 23  “IACHR Report on the Situation of Human Rights in Ecuador” Inter-​Am. C.H.R., OEA/​Ser.L/​V/​ II.96, Doc. 10, rev. 1at ch.ix (Apr. 24, 1997). 24  Rome Statute, art 7(1). 25  Rome Statute, art 7(1)(b). 26  Rome Statute, art 7(1)(d). 27  Rome Statute, art 7(1)(h). 28  Rome Statute, art 7(1)(k).

520    Daan P. van Uhm crimes against humanity do not require the specific intent necessary for genocide (Art. 6), extermination, forcible transfer, persecution, or other inhumane acts based on environmental harm still need to fulfill the mens rea requirement that the act is committed with (foreseeable) knowledge of a widespread and systematic attack against civilian population. First, extermination includes “the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.”29 So for example, the Marsh Arabs case briefly described earlier could also be seen as a crime against humanity because the draining deprived the people of their dignity, livelihood, and culture (Lopez, 2007). Weinstein (2005, p. 720) argues that “[o]‌ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health,” could embody environmental devastation when committed “with the intent to cause great suffering in a widespread or systemic manner, or pursuant to a State policy.” Bruch (2001, p. 729) highlights that crimes against humanity may include widespread and systematic attacks conducted in a discriminatory manner on “drinking water, food sources, and other environmental components directly affecting the life and physical well-​being of a population.” For instance, the poisoning of natural water sources or removal of natural food sources in local ecosystems causing direct or indirect harms to local people. Second, deportation or forcible transfer of population means “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present.”30 The displacement of local people can be seen as a crime against humanity, whereby local communities are removed by forcible expulsion from places where they are lawfully present (Gillett, 2017; Borges, 2018). For example, in the al-​Bashir case at the ICC, the Prosecutor charged former President Omar al-​Bashir with forcible transfer of a population as a crime against humanity based on alleged attacks that had impact on the Fur, Masalit, and Zaghawa people’s means of survival, including natural resources.31 Another example includes South Sudan, where the water supply and land of local communities was targeted to force the locals from the area to allow oil companies to exploit natural resources (Smith, 2013). According to Smith (2013, p. 52), this example demonstrates how environmental damage “may be the means by which crime against humanity is committed.” Moreover, in order to drive civilian populations from an area and to demoralize opposing troops, armed forces often target objects and areas of interest regarding natural resources, such as natural areas in the Ecuadorian Amazon and Guatemala inhabited by indigenous peoples (Bruch, 2001, p. 698). Third, “persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”32 This can also refer to the natural environment that is damaged in such a way that fundamental rights of people are affected, and may be, for example, linked to the overarching effects on the environment by extensive mining activities (Smith, 2013). Detrimental impacts may

29 

Rome Statute, art 7(2)(b). Rome Statute, art 7(2)(d). 31  Situation in Darfur, The Sudan (Summary of Prosecution’s Application under Article 58) ICC-​02/​ 05-​152 (14 July 2008), paras. 14–​15. 32  Rome Statute, art 7(2)(g). 30 

Atrocity Crimes and Ecocide    521 include erosion, loss of biodiversity, sinkholes, or the contamination of soil, groundwater, and surface water by the chemicals emitted from mining processes (e.g., Kitula, 2006; Pilgrim, 2009; Mensah et al., 2015; Zabyelina and Van Uhm, 2020). Fourth, other inhumane acts are defined as “acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”33 There are many examples of indigenous populations that lost their way of living based on natural resources as a result of environmental exploitation, because the land became profitable for minerals or oil, or attractive as a waste disposal area (Van Uhm and Grigore, 2021). According to Smith (2013, p. 52), the environmental conditions inflicted on the habitat of the Aché in Paraguay “reveals circumstances that are possibly beyond the proscribed limits of this crime against humanity.”

4.3. War crimes and the environment In Article 8(2)(b)(iv), the Rome Statute specifically proscribes and prohibits environmental war crimes, and states that the following constitutes a serious violation of the laws and customs applicable in international armed conflicts (IAC):34 Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-​term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

There is no analogue of this provision in Article 8 addressing non-​international armed conflicts (NIACs), which is a clear limitation because currently many of the serious armed conflicts have been NIACs (Gillett, 2017). This is a lacuna in the framework of international criminal law in relation to environmental harm (Wattad, 2009; Smith 2013).35 During all stages of warfare—​war preparations, during the war, but also during post-​war activities—​serious impact on the environment may take place (Machlis and Hanson, 2008). The three requirements included in the Rome Statute requiring the extent of the damage to be widespread, long-​term, and severe are cumulative and must all be met to establish criminal responsibility. “Widespread” refers to the undefined geographical scope of the environmental harm; “long-​term” refers to the temporal duration of the environmental damage and could vary from several months to decades; and “severe” refers to the intensity of the damage caused to the environment beyond typical battlefield destruction. The final clause of Article 8(2)(b)(iv) states that the widespread, long-​term, and severe damage to the natural environment “would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” The “military advantage anticipated” is assessed from the

33 

Rome Statute, art 7(1)(k). Rome Statute, art 8(2)(b)(iv). 35  Even though the drafters of the Rome Statute considered inserting a provision similar to Article 8(2)(b)(iv) for non-​international armed conflicts, the proposition was explicitly rejected (Gillett, 2017). 34 

522    Daan P. van Uhm “perspective of the perpetrator on the basis of the information available to him/​her at the time of launching the attack” (Gillett, 2017, pp. 228–​229). According to Gillett (2017, p. 229) “[t]‌he narrow formulation in Article 8(2)(b)(iv) implies not only that there are forms of environmental damage that are not excessive despite being widespread, long-​term, and severe, but also that any environmental damage that does not conjunctively fill all the criteria of widespread, long-​term, and severe could never be excessive.” On the other hand, Article 8(2)(b)(iv) directly addresses environmental harm and is potentially broad in its coverage, because it has no limits in terms of types of attacks and means of warfare that it would cover (Gillett, 2017).

4.4. Practices and prosecutions Based on the 2016 ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization, the impact of atrocity crimes may be assessed in light of the increased vulnerability of victims, the terror subsequently instilled, or the socioeconomic damage, but also the environmental damage inflicted on the affected communities. According to the Prosecutor, particular consideration will be given to prosecuting Rome Statute violations that are “committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” (ICC, 2016, p. 14). As one of the most pressing concerns for future generations has become environmental degradation and its impact on the world, extending the protection against disproportionate environmental harm may be in accordance with the animating spirit behind the consensus reached in Rome in 1998 (Gillett, 2017). Thus, arguably protecting the environment fits within the values of the Rome Statute in that sense, because it is designed to protect the current population and “future generations” of planet Earth. However, Lopez (2007, p. 234) states that in practice, priority has so far been given to the prosecution of other atrocities, because “prosecution of individuals who committed ‘crimes of widespread murder, mutilation, and other atrocities against humans’ . . . ha[d]‌a greater impact on public opinion.” In addition, it can be more difficult to identify individuals who are culpable for systematic issues of environmental degradation and climate change, because of the lack of a direct link between perpetrator and victim (White, 2012). Moreover, prosecuting environmental damage under existing international criminal law has proved to be challenging. In particular, the principle of military necessity can constitute an important limit and counterweight to the interests of protection of the environment during warfare (Lopez, 2007). After World War II, during the Nuremberg Trials, three important prosecutions interpreted the laws that existed at that time to prosecute individuals for environmental damage caused during war. First, there were charges against General Lothar Rendulic regarding a scorched-​ earth policy in the German retreat from Finnmark.36 However, the Court decided that his actions were justified by military necessity and acquitted the General of the environmental damage charges because the defense argued that he ordered the scorched-​earth policy “to

36  Trial of Wilhelm List and others. Judgement the United States of America v. Wilhelm List, et al., United States Military Tribunal, Nuremberg, Case no. 47 (19 February 1948), p. 1297.

Atrocity Crimes and Ecocide    523 avoid annihilation by a superior Russian side that he felt were pursuing the German Army in their retreat” (Smith, 2013, p. 53). This case well illustrates the hurdles to prosecute environmental damage because of the principle of “military necessity.” Second, Alfred Jodl, the chief of the Operations Staff of the Oberkommando der Wehrmacht, destroyed 30,000 houses by scorched-​earth policy in retreat from Norway in 1941.37 Jodl argued that he was against this, but that Hitler ordered it and it was not fully carried out. He was found guilty of implementing the scorched-​earth policy among other serious charges and was sentenced to death by hanging by the International Military Tribunal in Nuremberg. Third, the United Nations War Crimes Commission discussed whether 10 German civil administrators, each of whom had been the head of a department in the Forestry Administration during the German occupation of Poland (1939–​1944), could be indicted for war crimes for cutting down Polish timber (Weinstein, 2005). The war crimes would arise from their “ruthless exploitation of Polish forestry,” which involved “widespread cutting down of Polish forests far in excess of what was appropriate to preserve the timber resources of the country” (Freeland, 2015, p. 64). The United Nations War Crimes Committee agreed that prima facie evidence of a war crime had been shown and 9 of the 10 officials were listed as accused war criminals (United Nations War Crimes Commission, 1948, p. 496). Despite the use and abuse of the environment in warfare and conflict, the vast detrimental impact of warfare on the environment throughout history, and the existence of international laws that directly or indirectly prohibit environmental destruction in armed conflict, no tribunal since Nuremberg has prosecuted individuals for war-​related environmental damage (Weinstein, 2005; Lopez, 2007). Smith (2013, p. 55) highlights that Article 8(2)(b)(iv) has been ineffective to address the growing environmental problems during warfare. No prosecutions have been pursued under this provision and it certainly does “not reflect preventive theories of environmental law.” Thus, criminal liability for environmental harm during armed conflicts is real on paper, but is missing in empirical reality (Weinstein, 2005; Lopez, 2007).

5.  Ecocide as Atrocity Crime Because of the limitations of international criminal law in relation to protecting the environment, there have been several calls to take an evolutionary leap forward by recognizing “ecocide” as a core international crime. Early definitions of ecocide tended to be restricted to wartime situations influenced by heavy environmental harm being inflicted on Vietnam, Cambodia, and Laos through the use of chemical warfare (Crook and Short, 2014). As early as 1970, the term “ecocide” was being used at the Conference on War and National Responsibility in Washington by Professor Arthur Galston, a plant biologist at Yale University, who “proposed a new international agreement to ban ‘ecocide’ ” (Gauger et al., 2012, p. 5).38 Galston argued that if “[genocide] could be perpetuated against humankind 37 

Trial of Alfred Jodl, The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part XXII (1 October 1946), pp. 138–​140. 38  Later, the term “ecocide” was used by Gray (1996, p. 216) to describe the “causing or permitting harm to the natural environment on a massive scale.” He states that individuals and organizations which

524    Daan P. van Uhm . . . then an attempt to destroy a natural environment [should be] qualified as equally disturbing. Such an atrocity required a similar concept—​ecocide, or an attempt to wipe out a specific environment” (Crook and Short, 2014, p. 307). In 1972, Olof Palme, then Prime Minister of Sweden, mentioned explicitly the Vietnam War as “ecocide” in his opening speech at the United Nations Stockholm Conference on the Human Environment (Björk 1996, p. 15). Even though ecocide was not mentioned in the official outcome document of the Stockholm Conference, the potential for a law criminalizing ecocide was widely discussed. Many NGOs addressed the issue and a demonstration with 7,000 participants was held (Gauger et al., 2012). In the following years pressure mounted on governments to address the issue, and this led to extensive enquiry as to whether ecocide should be included as a war crime, a form of genocide, or a crime against humanity in international criminal law. During the Convention on Ecocidal War in Stockholm, there was a call for a United Nations working group on ecocidal warfare in order to define and proscribe ecocide as an international crime of war (Crook and Short, 2014, p. 307). By recognizing that the Convention on Genocide was deficient, a draft International Convention on the Crime of Ecocide was prepared by Falk (1973) for UN consideration, focusing primarily on ecocide as a crime committed during warfare. He defined “environmental warfare as including all those weapons and tactics which either intend to destroy the environment per se or disrupt normal relationships between man and nature on a sustained basis” (Falk, 1973, pp. 8–​9). Although the draft Ecocide Convention recognized that environmental damage can be caused consciously and unconsciously, the majority of the draft focused on ecocide committed as a war crime with specific intent and did not set out similar peacetime provisions. By consideration of the draft Ecocide Convention by the United Nations Sub-​Commission on Prevention of Discrimination and Protection of Minorities, some members proposed that “the definition of genocide should be broadened to include . . . ‘ecocide:’ adverse alterations, often irreparable, to the environment—​for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest—​which threaten the existence of entire populations, whether deliberately or with criminal negligence.”39 Within the Sub-​Commission, Abdelwahab Bouhdiba voiced support for criminalizing ecocide by stating “any interference with the natural surroundings or environment in which ethnic groups lived was, in effect, a kind of ethnic genocide because such interference

harm the environment “breach a duty of care owed to humanity in general and therefore commit an international delict.” Berat (1993, p. 343) used it in a similar way by focusing on the crime of geocide (or ecocide), which could be defined as the “destruction, in whole or in part, of any of portion of the global ecosystem, via killing members of a species; causing serious bodily or mental harm to members of the species; inflicting on the species conditions of life that bring about its physical destruction in whole or in part; and imposing measures that prevent births within the group or lead to birth defects.” South (2010) supported Gray’s proposal that ecocide be written into international law, premised on the threat, or breach of rights, to health and to life. 39  United Nations Economic and Social Council, Sub-​Commission on Prevention of Discrimination and Protection of Minorities, ‘Review of Further Developments with which the Sub-​Commission has been Concerned’ (2 July 1985) E/​CN.4/​Sub.2/​1985/​6, p. 17.

Atrocity Crimes and Ecocide    525 could prevent the people involved from following their own traditional way of life.”40 Even though there was a significant support for ecocide to be included in an amended Genocide Convention, it was not pursued any further by the Sub-​Commission (Gauger et al., 2012).41 Other members of the Sub-​Commission argued that ecocide is a crime against humanity, rather than genocide.42 Following these discussions, from the mid-​1980s onward, the UN’s International Law Commission (ILC) considered including “acts causing serious damage to the environment” within the Draft Code of Crimes against the Peace and Security of Mankind (the Code). The Code became eventually the starting point for discussions and basis of the Rome Statute of the International Criminal Court (Gauger et al., 2012, p. 9). For the purposes of the Code, Article 26 was reduced to “willful and severe damage to the environment.” However, several governments criticized that the final draft of Article 26 did not address environmental crime by name, as it contains no reference to ecocide, but also the inclusion of the element of intent was controversial. For instance, the governments of Australia, Austria, Belgium, and Uruguay criticized the inclusion of the element of intent because during peacetime ecocide “is often a crime without intent . . . since perpetrators of this crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment” (Higgins et al., 2013, p. 260). However, the ILC determined to remove Article 26 altogether, instead of removing reference to the element of intent from the Article (Gauger et al., 2012). In 1995, a Working Group was established to further examine the issue of “willful and severe damage to the environment” in the Draft Code of Crimes against the Peace and Security of Mankind.43 Their report “Document on Crimes against the Environment” suggested to: a. retain environmental crimes as a distinct and separate provision; or b. include environmental crimes as an act of crimes against humanity; or c. include environmental crimes as a war crime. However, the suggestions were not followed up on, and crimes against the environment were completely removed as a separate provision in 1996 due to comments from a few governments that largely opposed any form of inclusion of Article 26. Consequently, a far narrower remit was finally put to a vote without the term “ecocide” and with only one decision left to take: whether to include environmental damage solely in the context of a war crime or to include it as a crime against humanity.44 The result was that the Drafting

40  United Nations Economic and Social Council, Sub-​ Commission on Prevention Discrimination and Protection of Minorities, E/​CN.4/​Sub.2/​SR.658, p. 53. 41  There is no reference why the effort to include ecocide as a crime of genocide was not pursued any further by the Sub-​Commission (Gauger et al., 2012). 42  United Nations Economic and Social Council, Sub-​Commission on Prevention of Discrimination and Protection of Minorities, “Review of Further Developments with which the Sub-​Commission has been Concerned” (2 July 1985) E/​CN.4/​Sub.2/​1985/​6, p. 17. 43  ILC, “Draft Code of Crimes against the Peace and Security of Mankind” (27 March 1997). (XLVIII)/​ DC/​CRD.3, paragraph 1. 44 Regarding the environmental damage in the context of war crimes: 12 votes in favor to 1 (4 abstentions) and in the context of crimes against humanity: 9 votes to 9 (2 abstentions).

526    Daan P. van Uhm Committee was notified to draft environmental damage only in the context of war crimes, and not in the context of crimes against humanity (Gauger et al., 2012). Article 26 was removed from the Code, and Article 8 on war crimes referred to the “widespread, long-​term and severe damage to the natural environment.” This legal definition of a war crime against the environment made it into the final Rome Statute’s Article 8(2)(b)(iv). Consequently, crimes against environment are limited to wartime situations and only to intentional damage (Gauger et al., 2012; Higgins et al., 2013).45 In April 2010, a new proposal for an international law on ecocide was submitted to the United Nations Law Commission by Polly Higgins (Higgins, 2010). According to her definition, ecocide is “the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished” (Higgins et al., 2013, p. 257). She highlighted the “legal duty of care” by which nations are legally bound to act before mass damage, destruction, or ecosystem collapse occurs. In other words, she proposed a law of ecocide which recognizes “human-​caused environmental damage and degradation (whether committed during or outside of war-​time), as a crime of strict liability (in other words, without intent) . . . [because] [m]‌ost corporate ecocide is not intended; often it is deemed collateral damage or an accident” (Higgins et al., 2013, p. 262). Therefore, the proposition would evade the issue of proving intent in international criminal law (Lopez, 2007; Gillett, 2017). Inspired by Polly Higgins, a panel of highly renowned international criminal and environmental lawyers from around the world has proposed a legal definition of ecocide as a potential 5th international crime, to sit alongside genocide, crimes against humanity, war crimes and the crime of aggression. In 2021, they defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-​term damage to the environment being caused by those acts” (SEF, 2021, p. 5).46 The panel recommends that a new crime of ecocide be adopted as Article 8 ter of the Rome Statute. The implementation of the crime of ecocide may prevent mass environmental destruction, as an independent violation rather than only when committed in conjunction with other violations (Westerhuis et al., 2013).

45 

Although the Code of Crimes against the Peace and Security of Mankind morphed into the Rome Statute, some states transferred the draft Crimes against Peace, including ecocide, into their own national penal codes. After the Vietnam War, Vietnam was the first country to include a crime of ecocide in its domestic law, followed by Russia in 1996 after the collapse of the USSR in 1991. Some countries have included ecocide as a Crime against Peace such as Armenia, Belarus, Republic of Moldova, Ukraine, and Georgia (Gauger et al., 2012). 46  “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated; “severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources; “widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings; “long-​term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time; “environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space (SEF, 2021, p. 5).

Atrocity Crimes and Ecocide    527

6.  Discussion and Conclusion In relation to existing international criminal law, the environmental damage merely amounts to the tool by which atrocity is perpetrated and “[t]‌he [environmental] destruction becomes a crime because of its humanitarian consequences” (Smith, 2013, p. 46). The environmental damage per se is not an offense under the Rome Statute, but criminal liability arises when the environmental harm impacts human beings and their security (Weinstein 2005; Smith, 2013). This reflects the anthropocentric view within international criminal law which is strongly influenced by the human-​nature dualism47 within Western culture. This deep-​rooted distinctive attitude of humans to nature is described by White (1967) in his article “Historical Roots of Our Ecological Crisis” as one of the most important explanations for the degradation of nature and anthropocentrism in the scientific disciplines. The reductionistic and utilitarian vision, which focuses on the commodification of natural resources, reflects the artificial distinction between nature and humans whereby the natural world is understood as “Umwelt,” something that surrounds us and sometimes disturbs our plans, but always remains separate from our social domain (Hamilton, 2013, p. 3). From this perspective, the Rome Statute departs from anthropocentric principles in its examination of harms against humans, instead of harms against the environment (Sheppard, 2010). Consequently, the planet’s natural resources are overexploited and wasted by numerous violations, crimes, and unethical practices against the environment without international criminal law protection (Beirne and South, 2007; White, 2011). In the context of the increasing social and professional concern regarding the environment, academics—​including criminologists and criminal lawyers—​started to focus on prioritizing green crimes and harms48 in recent years (e.g., Beirne and South, 2007; White, 2008; Hall, 2014; Van Uhm and Moreto, 2018). In his article “Rights and Justice on a Shared Planet,” Benton (1998) argued that the legalistic definitions of crime are problematic because the social construction of environmental crime is influenced by dominant anthropocentric perspectives. Green criminologists take the principle of harm to an extended level with environmental harms as a result of activities that have not (yet) been criminalized (Lynch and Stretesky, 2003; Beirne and South, 2007; White, 2008). As Brisman and South (2018) note, in the future of the Anthropocene the environmental harms will be more serious and resource scarcity will be criminogenic with serious implications for the world; e.g., increasing desertification and air and soil pollution appear to be good predictors of conflict and crime (e.g., Kelley et al., 2015; Van Uhm, 2018c). As demonstrated in this chapter, whether intentional or unintentional, the destruction of the environment has regularly been linked to atrocities . The environment with its natural resources can fuel or fund existing conflicts, particularly when the resources are scarce, as illustrated by the resource curse. The environment can also be a source of territorial conflict, as demonstrated by groups that are fighting over access to or use of natural resources.

47 

The socially constructed separation of nature and culture. Already in the mid-​20th century Sellin (1938) and Sutherland (1940) criticized the legal approach of crime and Schwendinger and Schwendinger (1970) argued that we have to approach crimes from a human rights perspective as the main criteria to define crime, instead of letting crime be defined by law. 48 

528    Daan P. van Uhm And natural resources can be a cause of conflict, as illustrated by the Vietnam War, when chemicals caused serious destruction of the environment, or the Gulf War, with burned Kuwaiti oil wells. War and conflict can cause extensive damage to ecosystems in a given territory but can also mean that the peaceful enjoyment of the inhabitants of that territory has been severely diminished (Weinstein, 2005). Such environmental harms are not land-​or border-​related; their complex effects threaten all life on Earth. As criminal theory can be seen as a “living institute” in which crime’s definitions and scopes change over time, it is not unthinkable that in the near future a proposal of criminalizing ecocide will be embraced (Hulsman, 1986; Hillyard and Tombs, 2004; 2007). From an ecocentric perspective, people are socially and ethically responsible for minimizing such damage, maintaining the natural balance and integrity of non-​human entities by acknowledging the dialectical relationship between humans and nature (Halsey and White, 1998; Van Uhm, 2017). Article 8(2)(b)(iv) of the Rome Statute shows that the Statute partially incorporates such ecocentric values, albeit subject to anthropocentric focus (Gillett, 2017). Given the historical background of Article 26 in the Draft Code of Crimes against the Peace and Security of Mankind and the votes in the 1990s regarding the environmental damage in the context of crimes against humanity (9 votes to 9; 2 abstentions), it could be reconsidered to adapt ecocide under Article 7 of crimes against humanity of the Rome Statute. However, by rejecting the dominant anthropocentric perspective within international criminal law, recognizing ecocide as a separate category in the list of international crimes of the Rome Statute can prevent both humanity from consequent atrocities as well as the environment from being damaged. In that sense, the recontextualization of atrocity crimes in relation to ecocide may not only be an instrument to prevent genocide, crimes against humanity, and war crimes, but can also function as an ecocentric form of liability (Wattad, 2009; Higgins et al., 2013). This may fit in the ICC’s tendency toward symbolic prosecutions and prioritization of cases in light of environmental harms and crimes in a changing world where the impact of humans on the environment is more visible than ever before.

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CHAPTER 23

F orced Migra nts a nd Atro cit y C ri me s Victoria Colvin and Phil Orchard 1.  Introduction Forced migrants have long been victims of atrocity crimes. In some cases, flight is the response to genocide, war crimes, or crimes against humanity. In others, flight itself is part of an atrocity crime, either in the form of ethnic cleansing, forced deportations, or forcible transfers. As of 2020, the numbers of forced migrants globally exceed 82.4 million people, including 26.4 million refugees and 48 million internally displaced persons.1 Violence, not surprisingly, is a critical factor leading to flight. A range of studies has documented a number of preconditions, including ethnic and religious conflicts, border disputes, authoritarian practices, economic underdevelopment, and unequal access to resources which can lead not only to violent conflict but also to increases in human rights abuses and atrocity crimes (Schmeidl, 1997; Schmeidl and Jenkins, 1998; Davenport, Moore, and Poe, 2003; Melander and Oberg, 2006; Moore and Shellman, 2006; Rubin and Moore, 2007; Kaya and Orchard, 2019). Further, forced displacement itself can constitute an atrocity crime, with both forced deportations across borders and forcible transfers within them now viewed potentially as crimes against humanity. And yet, while forced displacement is increasingly viewed as an international crime, the mechanisms by which perpetrators can be held accountable remain limited (Acquaviva, 2011; Jacques, 2012). Refugees receive protection under the 1951 Refugee Convention.2 The Convention defines a refugee as a person who: Owing to well-​founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their]

1 United Nations High Commissioner for Refugees. (2021) Global Trends: Forced Displacement in 2020. Available at: https://​www.unhcr.org/​60b638e37/​unhcr-​global-​trends-​2020 (Accessed: July 2 2021), p. 2. 2  Convention Relating to the Status of Refugees (adopted July 28, 1951, entered into force April 22, 1954) 189 UNTS 137 (Refugee Convention or Convention), Art 1(2).

536    Victoria Colvin and Phil Orchard nationality and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

However, while the Convention establishes fear of persecution as the primary element of the definition, it is silent on the question of state or individual criminal accountability for displacement. It creates no treaty monitoring body and does not place any positive obligation on governments to refrain from displacing their own population (Dawson and Farber, 2012, p. 59). Similarly, the UN High Commissioner for Refugees (UNHCR) Statute establishes it as having an “entirely non-​political character,” with the result that it cannot pursue states for engaging in such actions.3 Even if it was possible to introduce accountability mechanisms directly into the refugee regime through either the Convention or through UNHCR’s activities, there are concerns that this would turn grants of asylum into “an implicit accusation against that country” (Kälin, 2000, p. 423). This could have the negative effects of undermining both states’ willingness to provide refugees with asylum and UNHCR’s own efforts to operate within states of origin to safeguard the rights of both returnee refugees and internally displaced persons. The international response to forced migration, however, has begun to shift in three areas. First, with respect to international criminal law, forced deportations outside of a country’s territory and forcible transfers within a country’s territory have come to be recognized as potentially constituting both crimes against humanity and war crimes. This is reflected in the International Criminal Court’s Rome Statute in Article 7(d).4 Second, specific protections for internally displaced persons (IDPs) have also developed, including through the 1998 United Nations Guiding Principles on Internal Displacement.5 These Principles offer a factual description of IDPs as: Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-​made disasters, and who have not crossed an internationally recognized State border.6

While they are not a Convention and have not been negotiated by states, these Principles have been widely recognized as the “minimum international standard for the protection of internally displaced persons” (Kälin, 2005, pp. 29–​30) and as “an important international framework” by the United Nations’ 2005 World Summit.7 They establish that every human being shall have a right to be protected against arbitrary displacement, including ethnic 3  United Nations General Assembly, Statute of the Office of the United Nations High Commissioner for Refugees, UN Doc A/​RES/​428(V) (14 December 1950). 4  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 5  UN High Commissioner for Refugees (UNHCR), Guiding Principles on Internal Displacement, 22 July 1998, ADM 1.1, PRL 12.1, PR00/​98/​109. 6  UN Office for the Coordination of Humanitarian Affairs (OCHA), Handbook for Applying the Guiding Principles on Internal Displacement, 1 November 1999, p. 1. 7  UN General Assembly, 2005 World Summit Outcome: resolution/​adopted by the General Assembly, 24 October 2005, A/​RES/​60/​1, para. 132.

Forced Migrants and Atrocity Crimes    537 cleansing or similar practices, in situations of armed conflict, and as a collective punishment.8 In an important boost, the Principles have been brought into regional hard law, including through the African Union’s 2009 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention).9 Third, the Responsibility to Protect doctrine provides a mechanism through which the international community can assist states to halt or avert situations of forced displacement which could constitute atrocity crimes as well as other mass-​atrocity situations which led to widespread displacement and for the UN Security Council to take action in cases where states manifestly fail in their responsibilities to protect their own populations from such crimes. This chapter begins with a historical treatment of how forced migrants who were victims of atrocities have been treated in law. Up until the 1951 Refugee Convention, there were few direct efforts to treat such victims as different than other refugees, and little attempt to specifically target states through refugee law beyond defining refugees (and, potentially, internally displaced persons) as people who lacked the protection of their own governments. At the same time, there was a growing recognition that forced deportations (and, more recently, forcible transfers) were crimes and that perpetrators needed to be held accountable. This movement begins with Nuremberg and continues with the present efforts of the International Criminal Court. The chapter then moves on to explore protections that internally displaced persons now receive through the Guiding Principles and regional law, before concluding with a brief discussion of how the Responsibility to Protect may also provide forced migrants with protections.

2.  The Historical Treatment of Forced Migrants as Victims of Atrocities It is perhaps fitting that the first group to be referred to as “refugees”—​the Huguenot flight from France in 1685—​would today be viewed as victims of an atrocity crime (Marrus, 2002, p. 9). The Huguenots, the French Protestant population of France, had their religious rights protected by the 1598 Edict of Nantes. By the mid-​1660s, however, Louis XIV directly challenged those rights. Everything which was not “specifically permitted in the Edict of Nantes was forbidden” (Golden, 1988, pp. 16–​17). Protestant children were removed from their parents and raised in Catholic households; Protestant churches were closed; and Protestants were banned entry into professions. Finally, in 1685, Louis XIV revoked the Edict in its entirety. In so doing, he not only declared Protestantism illegal, but also officially denied exit to the Huguenots on pain of forfeiture of all property and (for men) being sent to work on French galleys in the Mediterranean for life if caught (Norwood, 1969; Golden, 1988, pp. 16–​18; Rae, 2002, pp. 83–​85). As Torpey (2000, p. 21) notes, through

8 

UN High Commissioner for Refugees (UNHCR), Guiding Principles on Internal Displacement, 22 July 1998, ADM 1.1, PRL 12.1, PR00/​98/​109, Principle 6. 9  African Union’s 2009 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted October 23, 2009, entered into force December 6, 2012).

538    Victoria Colvin and Phil Orchard the Revocation, Louis XIV sought to control not only emigration from France, but even movements within the country. The Huguenots were recognized—​and remembered—​as refugees not least because of Louis XIV’s actions, but also because this was seen by many other European rulers as an abrogation of a right to emigration (jus emigrandi) established within the Peace of Westphalia 40 years earlier. Both Louis XIV’s decisions to revoke the Edict, thereby ending religious toleration in France, and to deny the Huguenots the right to leave France, Rae (2002, p. 301) notes, were “regarded as illegitimate.” A century before, Hugo Grotius had argued that asylum existed for those “who suffer from undeserved enmity, not those who have done something that is injurious to human society or other men” (Grotius and Kelsey, 1925, p. 530). And so, in 1685 other European states welcomed the Huguenots and provided them with legal protections. Friedrich Wilhelm, the Great Elector of Brandenburg, was the first to act, passing his Edict of Potsdam three weeks after the Revocation. This Edict guaranteed the Huguenots the right to establish themselves in his territory as well as assistance and rights of free movement and worship. Other German states quickly followed, as did the Netherlands and the United Kingdom, both of which accepted the Huguenots but did not offer legal protections until 1709 (Orchard, 2014). These protections reflected that the Huguenots were recognized as refugees; not that they had an equally powerful claim as victims of an atrocity would have today. Moving forward, such legal protections were extended to political refugees following the French Revolution. However, the direct causes of flight tended to be ignored and reduced down to the simple concept that the refugees lacked the protection of their own state. In Revolutionary France, the 1793 Montagnard Constitution provided that the French nation served “as a place of refuge for all who, on account of liberty, are banished from their native country. These it refuses to deliver up to tyrants,” yet it was quickly suspended (Behrman, 2018, p. 78). More general protections for refugees came about in 1832, when French law defined them as ceux qui résident en France sans la protection de leur gouvernement (“those who reside in France without the protection of their government”).10 In the United Kingdom, the 1793 Aliens Act was silent on the question of refugees (Dummett and Nicol, 1990, p. 83). Five years later, however, its successor, the Aliens Act of 1798, established that refuge and asylum could be granted to those “flying from the oppression and tyranny exercised in France.”11 With the end of the Napoleonic Wars, the right of the government to deport aliens was removed, and, in practice, the United Kingdom did not deport any aliens between 1823 and 1906 (Porter, 1979, p. 8; Stevens, 2004, pp. 21–​ 23). While the 1905 Aliens Act re-​introduced this right of deportation, it also codified a clear asylum provision, exempting from a bar on entry any immigrants who prove they are “seeking admission to this country solely to avoid prosecution or punishment on religious grounds or political grounds or for an offence of a political character, or persecution, involving danger of imprisonment or danger to life or limb on account of religious belief.”12 As Bashford and McAdam (2014, p. 313) note, this act marks the moment when persecution, and in particular religious persecution, entered domestic immigration law.

10 

Loi Relative aux Etrangers Réfugiés Qui Résideront en France, passed on 21 April 1832. An Act for Establishing Regulations Respecting Aliens, 1798, 38 Geo. 3 c.77. 12  Aliens Act, 1905, 5 Edw. 7 c.13, s. 1(3)(d). 11 

Forced Migrants and Atrocity Crimes    539 Refugee protection throughout the 19th century, however, was a domestic affair only with individual states determining their policies toward the people who crossed their frontiers, and with no international legal obligations (Orchard, 2014). Further, religious refugees—​ particularly the Jews fleeing the pogroms of Russia and Eastern Europe—​were virtually invisible within the refugee system. While 1.5 million Jews fled both persecution and economic uncertainty in Russia in the three decades following 1880, they were not accorded refugee status but instead moved through Europe into the United States and the British colonies due to open migration laws (Boustan, 2007, p. 267). Following the First World War, the first formal international efforts to protect refugees began within the League of Nations. Fridtjof Nansen, the first League of Nations High Commissioner for Refugees, proposed to issue Russian refugees who had fled the Revolution with passports or equivalent identity papers under the auspices of the League. These “Nansen Passports” were important; they not only granted Russians a legal identity outside of their state but also marked the beginnings of international refugee law.13 While these statuses were subsequently extended to four additional groups—​Armenians in 1924 and Assyrians, Assyro-​Chaldeanians, and Turks in 1928—​what became known as the “arrangement system” had significant limitations (Orchard, 2016, pp. 214–​216). The first was that the League’s approach included only these specifically identified groups (Hathaway, 1984, p. 353). Outside of these groups, being without the protection of a government did not qualify an individual for refugee status. As a League rapporteur argued in 1926: “The mere fact that certain classes of persons are without the protection of any national Government is not sufficient to make them refugees.”14 With recognition through an Arrangement, conversely, every member of the group in that Arrangement was understood to be a refugee if outside their country of origin (Goodwin-​Gill and McAdam, 2007, p. 16). The League’s legal section in 1923 noted that “[i]‌n principle, however, any refugee originating from territory which formerly belonged to Russia . . . could legally be treated as a Russian refugee for the purposes of the activities of the League High Commissioner.”15 Finally, why were these specific groups selected? For the Russians, the new Soviet government had responded to their flight by stripping them of their citizenship: “by manipulating the legal status of its subjects, the Bolsheviks could punish from afar” (Felshtinsky 1982, p. 338; Torpey, 2000, p. 124). The lack of legal status meant that it was very difficult for the refugees to migrate onward from their initial locations of flight (Holborn, 1975, p. 4). The Nansen passport solved these problems (Orchard, 2014). The Armenian Arrangement occurred for different reasons. By 1924, there were approximately 200,000 Armenian refugees spread across Europe and the Middle East (Skran, 1995, p. 45). Many were direct victims of the Armenian Genocide; others had fled the more recent collapse of the independent Armenian state and its division by Turkey and the Soviet Union in the 1921 Treaty of Moscow (Marrus, 2002, pp. 76–​78). Following the success of the Russian Arrangement, the League added the Armenian refugee situation into Nansen’s scope of

13  League of Nations. (1930) Ten Years of World Cooperation, Geneva, Secretariat of the League of Nations, p. 269. 14  League of Nations Official Journal 1137, (1927) 8 (10) cited in (Hathaway 1984, p. 355). 15  “Minute Defining Russian Refugees,” 28 Jun 1923. League of Nations Archives, Geneva (LNA), R1729/​45/​29389/​15833.

540    Victoria Colvin and Phil Orchard work in 1923. The following year, Nansen recommended to the League members “that effect could best be given to the Council’s recommendation if the interested Governments would adopt a form of certificate for Armenian refugees identical with the certificate established for Russian refugees,” and provided a plan for the new certificate.16 Nansen noted that “the plan has been framed in a form which makes it possible for it to be brought into operation without the convening of a special conference.”17 In 1936, Michael Hansson, the President of the Governing Body of the Nansen International Office for Refugees, the successor organization to the High Commission, noted that this move was specifically due to the massacres the Armenians had suffered: If it admitted that Great Britain, Europe, and the civilised world in general, have definite obligations towards the Assyrians and the Saar refugees, how much greater are those obligations towards the Armenians, those unhappy people who, for the last fifty years, have been exposed to the most terrible massacres the world has ever known. (Hansson, 1936, p. 8)

While the League subsequently sought to create an overarching Convention, the 1933 Convention Relating to the International Status of Refugees remained silent on how refugees should be defined, referring back solely to the original Arrangements themselves.18 The 1938 Convention concerning the Status of Refugees Coming from Germany defined “refugees coming from Germany” as applying to “persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or in fact, the protection of the German Government” as well as stateless persons who had left Germany.19 But it did not explicitly state that the refugees (as opposed to the stateless persons) had to have left Germany and therefore could include people who still remained there.20 Thus, Sir John Hope Simpson, a leading expert at the time, argued that “that is a very difficult definition. So far as I can see it covers the people in the concentration camps inside Germany. They do not enjoy in fact the protection of the German Government” (Simpson, 1938, p. 609; Orchard, 2016, pp. 216–​217). However, only seven countries signed this convention and it was not used during the Second World War (Skran, 1995, p. 137). A lack of protection by the state of origin continued to be the basis for refugee definitions in the immediate post-​ war period. The International Refugee Organization’s (IRO) Constitution defined refugees in part as those who were outside their country “unable or unwilling to avail” themselves “of the protection of the Government of their country.”21 However, there was also a specific category of refugees for German and Austrian Jews:

16 

(1924) 5 League of Nations Official Journal 967. Ibid. pp. 968–​969. 18  League of Nations Convention Relating to the International Status of Refugees (28 October 1933) Treaty Series Vol. CLIX No. 3663. Available at: http://​www.refworld.org/​docid/​3dd8cf374.html, Art. 1. 19  League of Nations Convention Concerning the Status of Refugees Coming from Germany (10 February 1938) Treaty Series, Vol. CXCII No. 4461. Available at: https://​www.refworld.org/​docid/​3dd8d12a4.html, Art. 1. 20  This varied from an earlier League Provisional Arrangement concerning the Status of Refugees coming from Germany which was introduced in 1936 and specified that a German refugee “was defined to include ‘any person having left German territory who not enjoy or no longer enjoys the protection of the Government of the Reich’ ” (Hathaway 1984, p. 363). 21  Constitution for the International Refugee Organization, Annex 1, Part I, Section A, 1–​2. 17 

Forced Migrants and Atrocity Crimes    541 The term “refugee” also applies to persons who, having resided in Germany or Austria, and being of Jewish origin or foreigners or stateless persons, were victims of Nazi persecution and were detained in or were obliged to flee from and were subsequently returned to, one of those countries as a result of enemy action, or of war circumstances, and have not yet been firmly resettled therein.22

The IRO definition was the basis for negotiations around the definition contained within the 1951 Refugee Convention, which specified that a refugee was: Any person who owing to well-​founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable, or owing to such fear, unwilling to avail [themselves] of the protection of that country.23

This history affected the creation of the 1951 Refugee Convention in three ways. The first is the creation of the so-​called nexus clause of grounds for refugee status, which encompasses race, religion, nationality, membership of a particular social group, or political opinion. These are, unfortunately, limited protections: “not even all persons in flight from serious human rights abuse and who manage somehow to make their way to an asylum state qualify as refugees under international law” (Hathaway, 2001, p. 207). The Convention also defines refugees in an “essentially individualistic” way, which seems “to require a case-​by-​case examination of subjective and objective elements” of each applicant by state authorities, though this is not actually a requirement of the Convention (Goodwin-​Gill and McAdam, 2007, p. 23). Durieux (2008, p. 153) argues that while states frequently use such an approach, it “is misguided [and] should be questioned as a matter of principle.” However, UNHCR does undertake group-​based or prima facie recognition of refugee status when individual status determination “is impractical, impossible or unnecessary” and “where the refugee character of a group of similarly situated persons is apparent.”24 This is a process that can be extended to refugees fleeing genocide and other mass atrocity situations (Coen, 2015, p. 1054). Finally, the Convention is focused on state-​based persecution instead of other causes such as persecution caused by non-​state actors or from situations of generalized violence (Sztucki, 1999, p. 58). As UNHCR has noted, “persecution is normally related to action by the authorities of a country” and that while discriminatory or other offensive acts may be committed by other groups, such as the local populace, “they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.”25 These weaknesses are known, and states can provide alternative forms of complementary or subsidiary protection to individuals who do not fall within the Refugee Convention.

22 

Constitution for the International Refugee Organization, Annex 1, Part I, Section A, 3. Article 1 A.(2) Refugee Convention. 24 UNHCR “Guidelines on International Protection No.11: Prima Facie Recognition of Refugee Status,” HCR/​GIP/​15/​11, 24 Jun 2015, p. 1. 25  United Nations High Commissioner for Refugees. (2011) Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Geneva: United Nations High Commissioner for Refugees, p. 15. 23 

542    Victoria Colvin and Phil Orchard There has also been the development of regional instruments which include more expansive refugee definitions including elements such as generalized violence. For example, the 1969 Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa includes in its refugee definition “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.”26 Consequently, there has always been a tension in how refugee status is defined and in how it can be applied to victims of genocide and mass atrocities. The group-​based definitions used during the League of Nations politicized the process, which meant that many groups did not receive refugee status at all during the interwar period and only limited steps were taken to respond to refugees fleeing from Nazi Germany. Post-​war efforts under the IRO and then the creation of the 1951 Refugee Convention universalized refugee applications, but remained focused on both individualized and state-​based approaches and were quiet on the responsibilities of states who caused their own populations to flee.

3.  Criminalizing Forced Displacement Alongside these developments, there were also efforts to ensure that some forms of forced movements be treated as crimes. During the First World War, German authorities began to “deport Belgian and northern French workers, both employed and unemployed, to forced labour in Germany or behind the Western Front,” with at least 900 civilians dying in camps or while undertaking coerced work (Thiel, 2013, pp. 39–​44). The policies were stopped after widespread protests, but the 1921 International Red Cross Conference adopted a resolution that “deportation of civilians is only permitted in individual cases . . . mass deportation applying to entire categories of inhabitants, shall not be decreed” (Fried, 1946, p. 311; Thiel, 2013, pp. 44–​45). Such events were also included in the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, which specifically identified “deportation of civilians” as an offence, but the commission did not have the legal authority to prosecute any violations.27 At this stage, therefore, there were no further movements to codify such understandings. Following the Second World War, the response was different. Both the Tokyo and Nuremberg International Military Tribunals included deportation as a crime against humanity,28 while the Nuremberg Tribunal also included deportation to slave labor as a war crime.29 While the Tokyo Trials made only general descriptions of conduct, the Nuremberg Subsequent Proceedings specifically included several cases directly related to the forced deportation of civilians and prisoners of war (Colvin and Orchard, 2021). 26  Organization

of African Unity (OAU), “Convention Governing the Specific Aspects of Refugee Problems in Africa,” 10 Sept. 1969, (Article II). 27  Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, March 29 1919, p. 18. 28  Arts. 5 (b) and (c), Charter of the International Military Tribunal for the Far East (IMTFE), 19 January 1946; Art. 6(c), Charter International Military Tribunal (IMT). 29  Art. 6(b), Charter International Military Tribunal (IMT).

Forced Migrants and Atrocity Crimes    543 In the cases of Milch, Krupp, and Flick at the Subsequent Proceedings, the crime of deportation was connected to the use of slave labor on a mass scale in German industry. The Krupp case of 1948 found that: Deportation of civilians from one nation to another during times of war becomes a crime [i]‌f the transfer is carried out without a legal title. . . . The second condition under which deportation becomes a crime occurs when the purpose of the displacement is illegal, such as deportations for the purpose of compelling the deportees to manufacture weapons for use against their homeland or to be assimilated in the working economy of the occupying country. The third condition under which deportation becomes illegal occurs whenever generally recognized standards of decency and humanity are disregarded.30

Thus, deportation was clearly viewed as both a war crime and a crime against humanity. A number of other cases also included charges of deportation as a crime against humanity which encompassed both the movements of German and other nationalities (which would today be viewed as forcibly transfers), as well as movements of the Polish population within and from territories annexed by Germany (Colvin and Orchard 2021, pp. 66-​69). Most notably, the RuSha case, named for the SS Main Race and Settlement (Office Rasse-​und Siedlungshauptamt or RuSha), dealt with officials who participated in the program of racial classification and Germanizing of occupied territories. Thirteen were found guilty of crimes against humanity and war crimes as deportations. 31 Protections against forced displacement were also developing in international human rights law. In 1948, the Genocide Convention explicitly established that the forcible transfer of children from one group to another and acts which are “deliberately inflicting on the groups conditions of life calculated to bring about its physical destruction in whole or in part” both constitute genocide.32 How expansive the drafters meant for the forcible transfer clause to be is unclear, however. During the deliberations, the representative from Egypt specifically “asked for a definition of the term ‘forced transfer.’ Did it imply a transfer from one country to another or a transfer from one political or religious group to another?” to which the Greek representative, who had proposed the inclusion of the clause, simply noted that “it meant the forced transfer from one human group to another” and was silent on the question of territory (Abtahi and Webb, 2008, p. 1494). The inclusion of forcible transfers of children has led some legal commentators to suggest that other forms of forcible displacement involving children could constitute genocide; however, it is unclear how widely applicable this would be (Boot, 2002, p. 451; Dawson and Farber, 2012, p. 57). Once again during the Convention negotiations, the Syrian representative had proposed that “any measures directed towards forcing members of a group to leave their homes should be regarded as

30  The language was originally provided in a concurring opinion by Judge Phillips. Military Tribunal No. II, US v. Milch (1947) see also (Acquaviva 2011: 9). 31  United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol XIII, 1949, 2–​ 4, 86–​88. The matter was similarly dealt with in the 1961 Eichmann judgement, which included charges of deportation as both a war crime and a crime against humanity for transfers of Jews within Germany and areas occupied by Germany. Judgement, Adolf Eichmann, District Court of Jerusalem, (Criminal Case No. 40/​6), paras 601 and 606. 32  Art 2(e), Genocide Convention.

544    Victoria Colvin and Phil Orchard constituting genocide;” however, the general view was that this did not constitute genocide in itself and was voted down (Abtahi and Webb, 2008, pp. 1490–​1491). Other human rights conventions and declarations establish implicit rights against forced displacement. The Universal Declaration of Human Rights establishes that “everyone has a right to freedom of movement and residence within the borders of each state” and the right to leave any country and to return to their own country as well as a right to seek asylum from persecution.33 The International Covenant on Civil and Political Rights affirms the freedom of movement and residence within a country and the right to leave any country, though these rights can be limited for reasons of national security and public order.34 The Convention on the Elimination of All Forms of Racial Discrimination also establishes a right of freedom of movement and residence within the borders of a state.35 In addition, international humanitarian law, which applies during armed conflicts, forbids forced displacement in a range of circumstances. Geneva Convention IV (1949) Article 49 notes, “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive,” unless the security of the population or imperative military reasons so demand.36 Article 17 of the Additional Protocol II (1977), which deals with non-​international armed conflicts, also provides that “civilians shall not be compelled to leave their own territory for reasons connected with the conflict.”37 What specific requirements the occupying power must abide by, however, are unclear, with Jacques (2012, p. 79) noting that “diverging interpretations abound.” The International Committee of the Red Cross has argued that both of these articles are now customary international law, and these protections must be applied to all civilians except in situations where “the security of the civilians involved or imperative military reasons so demand” their movement (Henckaerts et al., 2005, p. 457). However, the protections only apply in situations of international or non-​international armed conflict. Further, the Conventions do allow for deportations, transfers, or evacuations to occur for reasons of civilian and military security.38 Additional Protocol I, which governs international armed conflicts, goes even further and suggests there is a duty to remove civilians from the vicinity of military objectives.39 Therefore, there are clear prohibitions against deliberate forced displacement in existing international law, though there are specific circumstances in which it

33 

Universal Declaration of Human Rights (10 December 1948) GA Res. 217A (III), UN Doc. A/​810 at 71 (UDHR), Arts 13 (1–​2) and 14(1). 34  International Covenant on Civil and Political Rights (adopted December 16, 1966, entered into force March 23, 1976) 999 UNTS 171, Art 12 (1–​3). 35 International Convention on the Elimination of All Forms of Racial Discrimination (adopted December 21, 1965, entered into force January 4, 1969) 660 UNTS 195 (CERD), Art. 5. 36  Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention). 37  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 609 (Protocol II). 38  Fourth Geneva Convention, Article 49(2). 39  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Protocol I), Article 58(a).

Forced Migrants and Atrocity Crimes    545 is allowed. However, the existence of law is one issue. The other is how to hold accountable states and individual perpetrators who engage in forced displacement crimes, either alone or in conjunction with other mass atrocity crimes. This is the theme of the next section.

3.1. The role of the international tribunals and International Criminal Court In the 1990s, International Criminal Law began to evolve rapidly. The International Criminal Tribunal for the former Yugoslavia (ICTY) was created in 1993. Its statute provided that the ICTY could prosecute individuals for grave breaches of the Geneva Conventions, including “unlawful deportation or transfer or unlawful confinement of a civilian.”40 It also provided for the prosecution of crimes against humanity “when committed in armed conflict, whether international or internal in character, and directed against any civilian population [of]: . . . (d) deportation . . . (h) persecutions on political, racial and religious grounds [and] (i) other inhumane acts.”41 In determining that crimes against humanity needed to have occurred during armed conflict, the statute is arguably more narrow than customary international law (Acquaviva, 2011, p. 6). In the Tadic case, the Tribunal’s Appeals Chamber noted this discrepancy and stated that “[i]‌t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.”42 While including specifically forced deportation across state borders as crimes, forcible transfers within the state were also included as a crime against humanity under the “other inhumane acts” category. In the Kupreskic case, the ICTY Trial Chamber noted that while the “other inhuman acts” category was meant as a residual category, it “undoubtedly embraces the forcible transfer of groups of civilians” but that such acts “must be carried out in a systematic manner and on a large scale.”43 The crimes of forced deportation and forcible transfers have been further developed within the International Criminal Court. The Rome Statute includes both “deportation or forcible transfer of population” as a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”44 It further defines deportation or forcible transfer as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”45 Notably, there is no requirement that armed conflict needs to be present, nor (except with respect to the crime of persecution) that the crime requires a discriminatory motive. For the attack to be

40  Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1995) UNSC Res 827(1993), as amended (ICTY Statute), Art. 2(g). 41  Ibid., Art. 5. 42  Tadic (Decision on Defence Motion for Interlocutory Appeal on Jurisdiction) IT-​ 94-​1-​AR72 (2 October 1995), para 141. 43  Kupreskic et al (Judgement) IT-​95-​16, Trial Chamber (14 Jan 2000), para 566. 44  Rome Statute, Art. 7(1)(d). 45  Rome Statute, Art. 7(2)(d).

546    Victoria Colvin and Phil Orchard qualified as “widespread,” it should be a large-​scale action involving a substantial number of victims, while “systematic” requires a high degree of orchestration and planning (Robinson, 1999, pp. 45–​46). Until recently, however, these crimes appeared to not be high on the ICC agenda. Prior to 2018, only one defendant had been charged with forcible transfers or deportations as a war crime. Deportation or forcible transfers as a crime against humanity had only been charged in three situations—​the Democratic Republic of the Congo, Kenya, and Sudan. However, the long-​running trial of Bosco Ntaganda, a rebel leader in the Democratic Republic of the Congo, concluded in July 2019 with his conviction on 13 counts of war crimes and 5 counts of crimes against humanity for acts committed in eastern Congo in 2002 and 2003 by troops under his command. Importantly, this included a conviction on forcible transfers as a crime against humanity and a conviction on the displacement of the civilian population as a war crime, the first such convictions by the Court.46 The ICC has also moved forward on charges against Patrice-​Edouard Ngaïssona and Alfred Yekatom in relation to events in the Central African Republic. Both Ngaïssona and Yekatom served in high-​level roles within the Anti-​Balaka movement. The Anti-​Balaka, composed of a set of Christian militias, emerged after the Séléka rebel movement, which was primarily supported by the Muslim population, overthrew the government. A UN Commission of Inquiry had determined in December 2014 that the Anti-​Balaka had committed ethnic cleansing against the Muslim population.47 Both Ngaïssona and Yekatom have been charged with crimes against humanity, including deportation or forcible transfers, and also charged with the displacement of civilian populations as a war crime.48 Their trial commenced in February 2021. Finally, the Court ruled that it could exercise jurisdiction over the crime of deportation of the Rohingya people from Myanmar to Bangladesh. While Myanmar is not a state party to the ICC, Bangladesh is, and the Prosecutor argued that since forced deportation required crossing an international border, the situation could be investigated.49 The ICC’s Pre-​Trial Chamber agreed, noting that since deportation had an “inherently transboundary nature,” the conduct “related to this crime necessarily takes place on the territories of at least two States.”50 The Chamber also made it clear that its determination was not just with respect to the Rohingya, but more widely that “acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute (by virtue of victims crossing the border to a State) fall within the parameters of article 12(2)(a) of the Statute.”51 Therefore, this could provide another mechanism through which 46 

Ntaganda (Trial Judgement) ICC-​01/​04-​02/​06 (8 July 2019), paras 1045–​1101. United Nations. (2014) “The International Commission of Inquiry on the Central African Republic: Final Report,” S/​2014/​928, 22 December 2014, pp. 7, 19. 48  Yekatom (Warrant of Arrest) ICC-​01/​14-​01/​18 (11 November 2018), page 21; and Ngaïssona (Warrant of Arest) ICC-​01/​14-​02/​18 (7 December 2018), p. 37. 49  Situation of Bangladesh/​Myanmar (Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute) ICC-​RoC46(3)-​01/​18-​1 (9 April 2018), paras. 1–​3. 50  Situation of Bangladesh/​ Myanmar (Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” Pre-​Trial Chamber I) ICC-​RoC46(3)-​01/​18 (6 September 2018), para. 71. 51  Situation of Bangladesh/​Myanmar, para. 73. 47 

Forced Migrants and Atrocity Crimes    547 signatories to the Rome Statute could refer cases to the Court if they received refugees who had been victims of forced deportation (Colvin and Orchard, 2018). Together, these three shifts suggest that the International Criminal Court is focusing on forced deportations and forcible transfers as their own distinct crimes, increasing the likelihood that perpetrators will be charged in other situations.

3.2 Protections for the internally displaced International criminal law, therefore, provides a mechanism to hold perpetrators to account for forced deportations and forcible transfers. A second major shift has also occurred over the past 20 years: the recognition that alongside refugees, internally displaced persons also need specific protections. As early as the Refugee Convention negotiations, there had been unsuccessful efforts to include IDPs. Eleanor Roosevelt argued against their inclusion, because they had: Separate problems of a different character, in which no question of protection of the persons concerned was involved. . . but those problems should not be confused with the problem before the General Assembly, namely, the provision of protection for those outside their own countries, who lacked the protection of a Government and who required asylum and status.52

UNHCR began providing assistance to IDPs in the 1970s when requested to do so either by the concerned state, the UN Secretary-​General, or the UN General Assembly. This was an ad hoc role, however, and one in which UNHCR did not seek to provide IDPs with protection (Orchard, 2018). As IDP numbers grew from around 8 million in 1980 to 22 million by 1990, the United Nations became increasingly involved. These efforts culminated in the 1998 Guiding Principles on Internal Displacement. The Principles, while non-​binding soft law, provide a restatement of the rights of IDPs in line with existing international human rights, humanitarian law, and refugee law in order to establish equality between IDPs and other citizens of their own country (Kälin, 2005, pp. 29–​30). The Principles address gray areas which were identified within existing international law with respect to the need to have rights against arbitrary displacement.53 Principle 6 establishes that “every human being shall have a right to be protected against arbitrary displacement” and define arbitrary displacement situations as including policies of apartheid, ethnic cleansing, or similar practices “aimed at or resulting in alteration of the ethnic, religious or racial composition of the affected population” and situations of armed conflict unless demanded for imperative military reasons or for civilian security.54

52  Mrs. Roosevelt (United States of America), UN General Assembly Official Records (UN GAOR), 264th Meeting, 2 December 1949, 473. 53  ECOSOC, “Internally Displaced Persons: Compilation and Analysis of Legal Norms, Part I,” E/​ CN.4/​1996/​52/​Add.2, 5 Dec. 1995, 5. 54 United Nations Office for the Coordination of Humanitarian Affairs, Guiding Principles on Internal Displacement (New York: United Nations, 1999), Principle 6.

548    Victoria Colvin and Phil Orchard Ethnic cleansing in itself has not been defined as an international crime in its own right. However, as Kälin (2008, p. 31) notes: “forced population transfers for the purpose of ‘ethnic cleansing’ and similar purposes can never be justified under international law and, therefore, always have to be considered arbitrary” (see also Martin et al., 2013, p. 45). Further, ethnic cleansing would usually fall under the prohibitions of forced deportations or forcible transfers as crimes against humanity. Although in themselves soft law without an enforcement mechanism, the Principles have been brought into regional hard law through two instruments in Africa. The 2006 Great Lakes Protocol, which applies to the 12 member states of the Great Lakes Conference, uses the Principles’ definition of arbitrary displacement and specifies that “member states undertake to prevent arbitrary displacement and to eliminate the root causes of displacement.”55 However, Walter Kälin, the former UN Representative for the Human Rights of Internally Displaced Persons, has noted that while this is a promising approach, implementation remains one of its key challenges.56 Of the eight signatories which have or have had IDPs, only four have introduced policies or legislation at the domestic level, while two have policies or laws in draft form (Orchard, 2018, p. 52). The African Union’s Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention), which has been ratified by 31 African states, also reflects the Guiding Principles’ prohibition against arbitrary displacement.57 A separate clause reinforces that “State Parties shall declare as offences punishable by law acts of arbitrary displacement that amount to genocide, war crimes or crimes against humanity.”58 The Convention establishes that state parties have an obligation to protect the rights of IDPs by refraining from and preventing “genocide, crimes against humanity, war crimes and other violations of international humanitarian law against internally displaced persons.”59 The Convention also introduces a remedies clause, establishing that “State Parties shall provide persons affected by displacement with effective remedies,” including compensation and reparations frameworks at the domestic level “in accordance with international standards.”60 The Convention lays out several mechanisms in order to monitor implementation and compliance, including a Conference of State Parties, reporting legislative measures, and the ability to refer disputes to either the Conference or to the African Court of Justice and Human Rights. Unfortunately, so far, the effects of these mechanisms are limited, with the Conference of State Parties having met only once, and few states have submitted

55  Art. 3(1) “Great Lakes Protocol on Protection and Assistance to Internally Displaced Persons” (adopted November 30, 2006). Available at: https://​www.refworld.org/​pdfid/​52384fe44.pdf (Accessed: October 29, 2018). 56 Walter Kälin, “The Great Lakes Protocol on Internally Displaced Persons: Responses and Challenges” (Speech at the Symposium on International Law in Post Conflict Situations: The Great Lakes Process, London School of Economics: International Humanitarian Law Project, London, 27 Sept. 2007), 4. 57  African Union’s 2009 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted October 23, 2009, entered into force December 6, 2012), Art. 4(b). 58  Ibid., Art. 4(6). 59  Ibid., Art. 9 1(b). 60  Ibid., Art. 12 (1) and (2). It also includes a further clause that a “State Party shall be liable to make reparation . . . when such a State Party refrains from protecting and assisting internally displaced persons in the event of natural disasters.” Ibid. Art. 12(3).

Forced Migrants and Atrocity Crimes    549 the required reports (Orchard, 2018, pp. 54–​55). Thus, while the Guiding Principles have established that IDPs have rights against arbitrary displacement including atrocity crimes, and these understandings have been brought into regional hard law, ensuring they are implemented remains an issue.

4.  The Responsibility to Protect and Forced Migrants Finally, the Responsibility to Protect (R2P) doctrine also provides a further mechanism to ensure that forced migrants who are victims of atrocity crimes receive some measure of protection.61 The R2P doctrine establishes that each state, as well as the international community as a whole, has the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.62 There is obviously a close linkage between these four atrocity crimes and the forced displacement of both refugees and IDPs. As Ferris (2016, p. 394) has argued, not only does “displacement almost always [occur] as a result of the four crimes included in the R2P concept,” but displacement can also serve as an early warning sign that mass atrocities are occurring. The Secretary-​General’s 2009 Report on the R2P directly drew linkages between forced displacement and the R2P.63 It noted that asylum could provide one route for protection from mass atrocity crimes, and also that the protection of refugees and internally displaced persons was a direct goal of R2P (Barbour and Gorlick, 2008). Further, the R2P doctrine means that the UN Security Council can use its powers under both Chapter VI and Chapter VII of the UN Charter to prevent and avert mass atrocity crimes, including those linked with forced displacement. Under Chapter VI, this includes the Council’s powers to investigate any dispute, while under Chapter VII the Council can use sanctions and other measures up to and including “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”64 The R2P has proved useful in a number of forced displacement situations under the different pillars, or three major aspects of R2P. The international response regarding the conflict in Kenya in December 2007 which displaced 300,000 people and killed up to 1,500 people is today widely seen as an excellent example of Pillar II at work (Welsh, 2013, p. 389). In that case, a coalition of eminent people led by Secretary-​General Kofi Annan was able to convince the two political sides to conclude a power-​sharing arrangement that ended the violence. Annan later noted he saw “the crisis in the R2P prism with a Kenyan government

61 

For further discussion of R2P see Chapter 19 by Alex Bellamy in this volume. UN General Assembly, 2005 World Summit Outcome: resolution/​adopted by the General Assembly, 24 October 2005, A/​RES/​60/​1; UNGA, Implementing the Responsibility to Protect: Report of the Secretary-​ General (New York: United Nations, 2009). 63  United Nations General Assembly. (2009) Implementing the Responsibility to Protect: Report of the Secretary-​General. New York: United Nations, p. 17. 64  Charter of the United Nations (adopted June 26, 1945, entered into force October 24, 1945) 1 UNTS XVI (UN Charter), Chapter VI, Art 34 and Chapter VII, Art 41 and 42. 62 

550    Victoria Colvin and Phil Orchard unable to contain the situation or protect its people. I know that if the international community did not intervene, things would go hopelessly wrong. . . . Kenya is a successful example of R2P at work” (Bellamy, 2011, p. 54). R2P was also successfully used in Côte d’Ivoire in March 2011. After President Laurent Gbagbo was unwilling to accept his electoral defeat and violence led to the creation of over 1 million IDPs, the UN Security Council recognized the victor, Alassane Ouattara, as the leader of the legitimate government. The UN Security Council then reaffirmed Côte d’Ivoire’s responsibility to protect its own population and authorized the 8,000-​person UN Operation in the Côte d’Ivoire which had been there since 2003 to use all necessary means to protect civilians, including by preventing the “use of heavy weapons against the civilian population.”65 With French support, the mission defeated Gbagbo, who was tried by the International Criminal Court but was acquitted by the Trial Chamber on four counts of crimes against humanity, including rape, murder, and persecution. He was not charged with forcible transfers.66 Thus, the R2P represents another form of response to aid forced migrants who are victims of atrocity crimes.

5.  Conclusion Over the past 20 years, there has been a growth in international mechanisms to protect forced migrants who are victims of atrocity crimes. Each of these, while positive, also suffers from limitations. Within international criminal law, forced deportations and forcible transfers have been defined as potentially constituting both crimes against humanity and war crimes, while some forms of transfers (such as the transferring of children) may also constitute genocide. However, the charging of these crimes by the ICC until recently has been limited. The Refugee Convention is also silent on the specific question of the response to atrocity crimes. However, emerging soft and regional law around the issue of internal displacement has clearly defined a right against arbitrary displacement. In the Kampala Convention, African states have accepted an obligation to protect IDPs from such acts even if, in practice, the Convention has not yet been fully implemented. Finally, there is a clear linkage between forced displacement and R2P, including through ethnic cleansing and the previously mentioned crimes against humanity and war crimes. These represent important steps forward to ensure that forced migrants can be protected from atrocities.

References Abtahi, H., and Webb, P. (2008) The Genocide Convention: The Travaux Préparatoires (2 Vols). Leiden: Brill.

65 

UNSC, “Resolution 1975 (2011),” S/​RES/​1975, 30 Mar. 2011, 3; See also (Bellamy and Williams 2011). ICC (n.d.) The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Alleged Crimes. www.icc-​ cpi.int/​cdi/​gbagbo-​goude/​pages/​alleged-​crimes.aspx (Accessed: October 29, 2019). 66 

Forced Migrants and Atrocity Crimes    551 Acquaviva, G. (2011) Forced Displacement and International Crimes. Available at: https://​ www.refworld.org/​docid/​4e09a5622.html (Accessed: October 29, 2019). Barbour, B., and Gorlick, B. (2008) “Embracing the ‘Responsibility to Protect’: A Repertoire of Measures Including Asylum for Potential Victims.” International Journal of Refugee Law 20, pp. 533–​566. Bashford, A., and McAdam, J. (2014) “The Right to Asylum: Britain’s 1905 Aliens Act and the Evolution of Refugee Law.” Law and History Review 32(2), pp. 309–​350. Bellamy, A.J. (2011) Global Politics and the Responsibility to Protect: From Words to Deeds. Milton Park: Routledge. Bellamy, A.J., and Williams, P.D. (2011) “The New Politics of Protection? Côte D’ivoire, Libya and the Responsibility to Protect.” International Affairs 87(4), pp. 825–​850. Boot, M. (2002) Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court. Antwerp: Intersentia. Boustan, L.P. (2007) “Were Jews Political Refugees or Economic Migrants? Assessing the Persecution Theory of Jewish Emigration, 1881–​1914.” In: Hatton, T.J., O’Rourke, K.H., and Taylor, A.M. (eds.) The New Comparative Economic History: Essays in Honor of Jeffrey G. Williamson. Cambridge, MA: The MIT Press, pp. 267–​290. Coen, A. (2015) “R2P, Global Governance, and the Syrian Refugee Crisis.” The International Journal of Human Rights 19(8), pp. 1044–​1058. Colvin, V., and Orchard, P. (2018) “The Rohingya Jurisdiction Decision: A Step Forward for Stopping Forced Deportations.” Australian Journal of International Affairs 73(1), pp. 16–​21. Colvin, V., & Orchard, P. (2021) “A Forgotten History: Forcible Transfers and Deportations in International Criminal Law.” Criminal Law Forum, 32(1), pp. 51–​95. Davenport, C.A., Moore, W.H., and Poe, S.C. (2003) “Sometimes You Just Have to Leave: Domestic Threats and Forced Migration, 1964–​ 1989.” International Interactions 29(1), pp. 27–​55. Dawson, G., and Farber, S. (2012) Forcible Displacement Throughout the Ages: Towards an International Convention for the Prevention and Punishment of the Crime of Forcible Displacement. Leiden: Martinus Nijhoff Publishers. Dummett, A., and Nicol, A. (1990) Subjects, Citizens, Aliens and Others: Nationality and Immigration Law. London: Weidenfield and Nicolson. Durieux, J.F. (2008) “The Many Faces of ‘Prima Facie’: Group-​Based Evidence in Refugee Status Determination.” Refuge 25(2), pp. 151–​163. Felshtinsky, Y. (1982) “The Legal Foundations of the Immigration and Emigration Policy of the USSR, 1917–​27.” Soviet Studies 34(3), pp. 327–​348. Ferris, E. (2016) “International Responsibility, Protection and Displacement: Exploring the Connections between R2P, Refugees and Internally Displaced Persons.” Global Responsibility to Protect 8(4), pp. 390–​409. Fried, J.H. (1946) “Transfer of Civilian Manpower from Occupied Territory.” American Journal of International Law 40(2), pp. 303–​331. Golden, R.M. (1988) The Huguenot Connection: The Edict of Nantes, Its Revocation, and Early French Migration to South Carolina. Dordrecht: Kluwer Academic. Goodwin-​Gill, G.S., and McAdam, J. (2007) The Refugee in International Law. Oxford: Oxford University Press. Grotius, H., and Kelsey, F.W. (1925) The Law of War and Peace: De Jure Belli Ac Pacis, Libri Tres. Indianapolis, IN: Bobbs-​Merrill. Hansson, M. (1936) The Refugee Problem: Two Speeches Made, at the Invitation of the League of Nations Union, in May 1936. Annemass: Imprimerie Granchamp.

552    Victoria Colvin and Phil Orchard Hathaway, J.C. (1984) “The Evolution of Refugee Status in International Law: 1920–​1950.” The International and Comparative Law Quarterly 33(2), pp. 348–​380. Hathaway, J.C. (2001) “The Causal Nexus in International Refugee Law.” Michigan Journal of International Law 23, p. 207. Henckaerts, J.M., Doswald-​Beck, L., and Alvermann, C. (2005) Customary International Humanitarian Law: Volume 1, Rules. Cambridge: Cambridge University Press. Holborn, L.W. (1975) Refugees, a Problem of Our Time: The Work of the United Nations High Commissioner for Refugees, 1951–​1972. Metuchen, NJ: Scarecrow Press. Jacques, M. (2012) Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons under International Humanitarian Law. Cambridge: Cambridge University Press. Kälin, W. (2000) “Non-​State Agents of Persecution and the Inability of the State to Protect.” Georgetown Immigration Law Journal 15, pp. 415–​432. Kälin, W. (2005) “The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool.” Refugee Survey Quarterly 24(3), pp. 27–​36. Kälin, W. (2008) Guiding Principles on Internal Displacement: Annotations. Washington, D.C.: The American Society of International Law. Kaya, S., and Orchard, P. (2019) “Prospects of Return: the Case of Syrian Refugees in Germany.” Journal of Immigrant & Refugee Studies 18(1), pp. 95–​112. Marrus, M.R. (2002) The Unwanted: European Refugees from the First World War through the Cold War. Philadelphia: Temple University Press. Martin, S., Weerasinghe, S., and Taylor, A. (2013) “Crisis Migration.” The Brown Journal of World Affairs 20(1), pp. 123–​137. McAdam, J. (2014) “Rethinking the Origins of ‘Persecution’ in Refugee Law.” International Journal of Refugee Law 25(4), pp. 667–​692. Melander, E., and Oberg, M. (2006) “Time to Go? Duration Dependence in Forced Migration.” International Interactions 32(2), pp. 129–​152. Moore, W.H., and Shellman, S.M. (2006) “Refugee or Internally Displaced Person? To Where Should One Flee?” Comparative Political Studies 39(5), pp. 599–​622. Norwood, F.A. (1969) Strangers and Exiles: A History of Religious Refugees. New York: Abingdon Press. Orchard, P. (2014) A Right to Flee: Refugees, States, and the Construction of International Society. Cambridge: Cambridge University Press. Orchard, P. (2016) “The Contested Origins of Internal Displacement.” International Journal of Refugee Law 28(2), pp. 210–​233. Orchard, P. (2018) Protecting the Internally Displaced: Rhetoric and Reality. London: Routledge. Porter, B. (1979) The Refugee Question in Mid-​Victorian Politics. Cambridge: Cambridge University Press. Rae, H. (2002) State Identities and the Homogenisation of Peoples. Cambridge: Cambridge University Press. Robinson, D. (1999) “Defining ‘Crimes against Humanity’ at the Rome Conference.” American Journal of International Law 93(1), pp. 43–​57. Rubin, J.H., and Moore, W.H. (2007) “Risk Factors for Forced Migrant Flight.” Conflict Management and Peace Science 24(2), pp. 85–​104. Schmeidl, S. (1997) “Exploring the Causes of Forced Migration: A Pooled Time-​Series Analysis, 1971–​1990.” Social Science Quarterly 78(2), pp. 284–​308. Schmeidl, S., and Jenkins, J.C. (1998) “Early Warning Indicators of Forced Migration.” In: Davies, J.L., and Gurr, T.R. (eds.) Preventive Measures: Building Risk Assessment and Crisis Early Warning Systems. Boulder, CO: Rowman and Littlefield, pp. 56–​70.

Forced Migrants and Atrocity Crimes    553 Simpson, J.H. (1938) “The Refugee Problem.” International Affairs (Royal Institute of International Affairs 17(5), pp. 607–​628. Skran, C.M. (1995) Refugees in Inter-​War Europe: The Emergence of a Regime. Oxford: Clarendon Press. Stevens, D. (2004) UK Asylum Law and Policy: Historical and Contemporary Perspectives. London: Sweet & Maxwell. Sztucki, J. (1999) “Who Is a Refugee? The Convention Definition: Universal or Obsolete?” In: Nicholson, F., and Twomey, P.M. (eds.) Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge: Cambridge University Press, pp. 55–​80. Thiel, J. (2013) “Between Recruitment and Forced Labour: The Radicalization of German Labour Policy in Occupied Belgium and Northern France.” First World War Studies 4(1), pp. 39–​50. Torpey, J.C. (2000) The Invention of the Passport: Surveillance, Citizenship, and the State. Cambridge: Cambridge University Press. Welsh, J. (2013) “Norm Contestation and the Responsibility to Protect.” Global Responsibility to Protect 5(4), pp. 365–​396.

CHAPTER 24

In the After mat h of Atro ci t i e s Research on the Intergenerational Transmission of Trauma and Violence Lidewyde Berckmoes 1.  Introduction: Questions and Definitions For people who experienced conflict or genocide, can it ever be post-​conflict? —​Health worker, Rwanda, 2018

At the limelight in this chapter are the long-​term effects of mass atrocity violence1 on individuals, communities, and societies. Yet, where most research on long-​term effects of mass atrocity violence are concerned with those who have experienced the violence first-​ hand, much in line with the quote at the start of this chapter, my interest here is in how mass atrocity violence reverberates in next generations. Thus, building on the quote, in which a health worker in Rwanda rhetorically expresses doubt about the possibility of ever truly leaving behind personal experiences of mass atrocity violence, the main question this chapter seeks to address, is: For the children and grandchildren of people who experienced conflict or genocide, can it ever be post-​conflict? A key concept in this chapter is “intergenerational transmission.” Intergenerational transmission refers to the transfer of a phenomenon across generations. “Generation” has been used in multiple senses in both the public domain as well as in research. Among others, generation can refer to genealogical, kinship descent, to distinguish population cohorts, to

1  There is continued debate about how to best define violence. Violence is sometimes understood as a reduction of human being or human potential through physical or other force (e.g., Jackson, in Lindegaard, 2009). Mass violence implies such process occurring at a large scale, while atrocity crimes, including genocide, crimes against humanity, war crimes, and crime of aggression can be part of mass violence. In the chapter, I use mass violence, mass atrocity violence, conflict, and war interchangeably to enable bringing together literature on intergenerational processes in various violence-​affected contexts.

556   Lidewyde Berckmoes identify various life stages, or to differentiate between specific historical periods (Kertzer, 1983). In this chapter, I use “generation” primarily as a relational concept in the realm of kinship descent; in other words, to refer to continuities in parent-​child and other genealogical, kinship relations. The study of intergenerational transmission is fraught with conceptual and methodological challenges, as will become apparent in the discussions that follow. Many studies have been able to show similarities or dissimilarities across two or more generations, also referred to as intergenerational continuity and discontinuity. Yet establishing processes of intergenerational transmission appears to be very challenging. Intergenerational transmission implies a pathway from a phenomenon in a first generation to that in subsequent generations. It is often difficult to identify all the steps or mechanisms2 involved in such a pathway, and to prove that it was this or that specific pathway that led to the similarities across generations. In addition, intergenerational transmission likely implies multiple, complex processes at the same time. To give an example, in studies about the intergenerational transmission of offending, it has been argued that deprived living environments shared by parents and their children, social learning processes, and genetic factors, among others, “operate in complex and interacting ways” (Eichelsheim and De Weijer, 2018, p. 5).3 Such processes are traditionally studied within different disciplines. Perhaps because of these challenges, the research field I trace in this chapter is still under construction. While large questions remain, existing studies demonstrate the importance and viability of studying the long-​term effects of mass violence from an intergenerational and interdisciplinary perspective. In what follows, I draw attention to specific themes that can be further developed through research. I build on an extensive narrative review of academic literature on the intergenerational transmission of violence and trauma in the context of mass violence published in the fields of psychology, sociology, and anthropology.4 Intergenerational transmission of violence and of trauma have mostly been studied separately, but in this chapter will be brought together as possible intergenerational legacies after mass atrocity violence (Robben and Suarez-​ Orozco, 2000). A wide search strategy was employed due to the multiple concepts used to describe processes of transmission over the generations—​for instance, Danieli (1998a) mentions transgenerational, multi-​generational, intergenerational, and cross-​generational transmission. The literature included here is not exhaustive, but allows me to demonstrate the contours of this interdisciplinary research field.

2 

“Mechanism” refers to the process by which something takes place or is brought about. because of the methodological difficulty in establishing causal links between manifestations of a phenomenon in two or more generations, scholars have argued for the need of prospective, longitudinal research designs that include at least three generations (e.g., Eichelsheim and De Weijer, 2018). These tend to be costly, time consuming, and may be especially difficult to set up in conflict-​affected contexts (Bijleveld, 2017; Berckmoes and Reis, 2018). See also Chapter 2 by Catrien Bijleveld in this volume. 4  I draw on literature obtained through a variety of search strategies, and include articles and books found through an initial systematic search of PsycINFO, Medline, Sociological Abstracts and Web of Science, complemented with scoping on Google Scholar, articles identified through snowballing, and those shared with me by academic peers over the past five years (2014–​2019). 3 Furthermore,

In the Aftermath of Atrocities    557

2.  Background and Outline of the Chapter In the aftermath of the Second World War, scholars became increasingly interested in the long-​term effects of war and genocide. This interest was partly driven by concerns of clinicians working with children of Holocaust survivors who appeared to suffer from psychopathological symptoms similar to their parents. Until then, such symptoms had been attributed only to personal exposure to genocidal violence, that is, the Holocaust (e.g., Danieli, 1998a; Kellerman, 2001). The raised concerns helped produce a large body of literature on the intergenerational transmission of trauma among children of Holocaust survivors. A bibliography on this topic includes almost 400 entries (Krell and Sherman, 2017; see also Danieli, 1998a). Most of these are debating the (non-​)existence of the phenomenon and the specific pathways that could be at play (Kellerman, 2001). In Section 3, I describe important findings in this literature. After the initial focus on Holocaust survivors’ offspring, researchers also started looking at Vietnam War veterans’ families in the 1990s as children in these families started to come of age (Harkness, 1993; Stein, 1994; Rosenheck and Fontana, 1998; Davidson and Mellor, 2001). Both cases attracted interest primarily of psychoanalysts, who mainly addressed the intrapsychic and family domains. Telling, in this regard, is that few of the studies on Holocaust survivors’ offspring have taken into consideration the potential impact of the—​ for many, at least—​migration context on their subjects’ mental health (e.g., to the United States and Israel). The limited attention to domains beyond the psyche and the neglect of research on intergenerational transmission by other disciplines like anthropology contrast with earlier work on trauma after mass violence. For instance, in the aftermath of the First World War, when the “millions of psychological casualties” compelled attention to “combat trauma,” new directions in studies and treatment drew on anthropology (Robben and Suarez-​Orozco, 2000, p. 13). A case in point is Abram Kardiner, whose work remains important to this day. After working at the New York Veterans Hospital with First World War veterans, he drew on anthropology to formulate a new understanding of combat trauma as not arising from “the stimulation of infantile conflicts but from the extreme duress of the violent environment” (Robben and Suarez-​Orzoco, 2000, p. 15). Over the past two decades, we see that the questions posed to Holocaust survivors about the intergenerational transmission of trauma are being asked in other genocide and war-​ affected contexts as well (Danieli, 1998b; Rieder and Elbert, 2013; Roth et al., 2014). In addition, there appears a broadening of attention to transmission of legacies of mass atrocity violence other than trauma, which in the earlier writings was usually defined in a narrow, clinical sense as individual, psychic trauma.5 Moreover, attention is directed to questions about the connection between individual and societal manifestations of trauma and other legacies of mass violence, as it has become clear that besides intrapsychic changes, atrocities also have profound impact on social relationships and society at large (e.g., Harvey, 1996;

5  In other words, focus was on psychic trauma of individuals, with little attention to the contribution of social, cultural, and environmental influences or manifestations of trauma.

558   Lidewyde Berckmoes Dickson-​Gomez, 2002; for a specific example on the varied impact of World War II on society, see Biess and Moeller, 2010). In Section 4, I explore these more recent developments in research. In the last section, I describe the role of intergenerational transmission in what has been referred to as “the conflict trap” (Collier et al., 2003; Hegre et al., 2011). In the conclusion, I highlight some key issues that I feel require urgent research attention.

3.  Key Findings from the First Phases of Research The first phases of research focused on the intergenerational transmission of trauma, which, as mentioned, was studied primarily from a psychoanalytical perspective, and mainly among Holocaust survivors’ offspring. A key concern was to define and prove the problem at hand; that is, to signify the psychopathological problems encountered among the second generation. Second, scholarship focused on identifying the mechanisms of intergenerational trauma transmission. Over time, scientific enquiry on these issues became more sophisticated, leading to theory development and theory testing (Kellerman, 2001).

3.1. Defining the problem One of the first writings on children of Holocaust survivors appeared in 1966 by Vivian Rakoff, who proposed that, given the psychosocial problems among the children, “[i]‌t would almost be easier to believe that they, rather than their parents, had suffered the corrupting, searing hell” (Rowland-​Klein and Dunlop, 1997, p. 358; Danieli, 1998a). Children were found to be suffering from symptoms like depression, anxiety, phobias, guilt, and separation problems. Rakoff ’s report entails a description of several case studies of children of Holocaust survivors and is therefore typical of the “first phase of scholarship” on this issue (Kellerman 2001, p. 37). Later, the descriptive studies of children of survivors were, in the second phase of scholarship, complemented with quantitative, empirical research studies. These studies aimed at proving and/​or disproving the existence of intergenerational trauma transmission. The “third phase,” according to Kellerman (2001, p. 37), saw “more well conducted comparative research, including also non-​clinical populations.” The inclusion of comparative population groups was seen as imperative to substantiate claims on the existence or non-​existence of the intergenerational trauma transmission phenomenon (e.g., Van Ijzendoorn et al., 2003). In these first research phases, many terms defining and explaining the observed psychosocial problems among survivors’ offspring were coined and contested, among which was “secondary traumatization,” also sometimes called “vicarious traumatization” (Stein, 1994; Rosenheck and Nathan, 1985;Weingarten 2004; Braga et al. 2012). The key argument here is that children are witnesses of their parents’ trauma. In other words, the consensus that emerged holds that “what is passed on is not the trauma itself, but its impact” (Weingarten, 2004, p. 47). Parents themselves were thought to be suffering from sequential

In the Aftermath of Atrocities    559 traumatization, which is the accumulation of traumatic stresses before, during, and after the war, and later became a standard concept in the 1980s known as post-​traumatic stress disorder (PTSD) (Keilson quoted by, Ijzendoorn et al., 2003).6 PTSD refers to “the persistent re-​experiencing of a traumatic event, the persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, and persistent symptoms of increased arousal such as hypervigilance or irritability” (Van Ijzendoorn et al. 2003, p. 460). Many believed that these severe psychological problems were hampering parents in their child raising, thus allowing for secondary traumatization among the children. Nonetheless, disagreement continued on whether these psychosocial problems seen among children of the “second generation” could really be attributed to the parents’ exposure to mass atrocity violence.7 In the 1990s and 2000s, a fourth phase of studies therefore focused on synthesizing the divergent findings of literature particularly on Holocaust descendants (Kellerman, 2001). Summarizing, Summerfield (1996) states that studies conducted from a psychoanalytical perspective tend to confirm intergenerational transmission of psychic effects, while population studies, which include comparative study groups, tend to negate the existence of the phenomenon. An example of the latter type of studies is Ijzendoorn et al. (2003), who conducted a quantitative meta-​analysis of thirty-​two clinical and non-​clinical samples. Based on this meta-​analysis, they conclude that traumatization cannot be empirically validated, as psychopathology was found in similar levels among control groups. Other scholars propose a different explanation for the conflicting findings regarding the manifestation of—​or lack of—​intergenerational transmission of trauma after mass violence. Kellerman (2001), for example, suggests that the conflicting findings are indicative of the fact that survivors’ offspring exhibit both vulnerability and resilience, which may result in a variety of psychosocial outcomes among offspring. Thus, he proposes that “although the second generation in general does not differ from others8 in psychopathology, after additional stress their latent vulnerability will become more manifest” (2001, p. 43). Later studies, such as in the bio-​medical field, seem to confirm the existence of latent vulnerabilities (see Section 3.2). The intergenerational transmission of resilience has not received systematic attention, despite early calls to investigate whether parents also confer strengths to children because of their histories of traumatization (Solkoff, 1992; Denham, 2008; Braga et al., 2012; Lehrner and Yehuda, 2018, pp. 10–​11; Denov et al., 2019). This is surprising, especially given the recognition of positive processes in the aftermath of war, such as post-​traumatic growth: The widely accepted perspective maintains that trauma is transformative in a negative way. . . . . . .However, the growing research base that includes personal narratives and clinical lore suggests that trauma also leads to other transformations that are positive and not negative.

6  The PTSD concept was developed in the aftermath of the Vietnam War (e.g., Stein, 1994, pp. 7–​9). Vietnam War veterans and their children would come to constitute a second group frequently studied for intergenerational transmission processes. 7  Political and financial incentives also influenced the debate: “The poor understanding of the stressors that cause trauma, and the failure to distinguish between acute trauma and its post-​traumatic effects . . . was also played out with calculating callousness to withhold the payment of reparative damages” (Robben and Suares-​Orozco, 2000, p. 17; see also Danieli, 1998). 8  That is, offspring of those who have not experienced mass atrocity violence.

560   Lidewyde Berckmoes Transformations that include the reconstruction of meaning, the renewal of faith, trust, hope and connection, the redefinition of self, self in relation to others and sense of community. (Lev-​Wiesel and Amir, 2006, p. 257)

3.2. Mechanisms of transmission The divergent findings among children of the second generation and the idea of latent vulnerabilities and resilience suggest the existence of diverse pathways to health and illness. The suggestion gave impetus to in-​depth research on the mechanisms of trauma transmission. Weingarten (2004) delineates four categories of mechanisms of transmission: psychological, familial, societal, and biological. First, for examples of psychological mechanisms of trauma transmission, Weingarten (2004) builds on attachment research and theory.9 The argument is that the attachment system suffers when the mental state of the caregiver is compromised due to the lack of resolution of loss or trauma (Lyons-​Ruth and Jacobvitz, in, Weingarten, 2004). An example of a psychological mechanism is “projective identification,” which was theorized in a small-​ scale study among descendants of Holocaust survivors by Rowland-​Klein and Dunlop (1997). They argue that survivor parents unconsciously use their children as a means of psychic recovery. Through projective identification, the parent splits off the unwanted part of the self, which is subsequently internalized by the child. The child then engages in relational work in an effort to repair the experiences suffered by the parent, often resulting in compliant behavior and difficulty with separation (Rowland-​Klein and Dunlop, 1997; Weingarten, 2004). Children are believed to experience the consequences long-​term, as basic mechanisms of the attachment system remain active and influential throughout the lifespan (Bowlby, 1969; Bretherton, 1985; Kirkpatrick and Shaver, 1990). Second, regarding familial mechanisms, Weingarten (2004) and several other scholars highlight parenting practices and parenting styles that appear harmful for the second generation. Such practices include, for example, difficulties in affection, intimacy, and overprotectiveness (Kidron, 2009). Danieli (1985, p. 303) distinguishes four types of familial “adaptational styles,” resulting in the categories of victim family, fighter family, numb family, and “those who made it.” Particularly the first family category, whereby the main identity in the family is that of the victim, appears to render children vulnerable to transmitted effects of trauma. In these families, parents seemed to overcompensate for the helplessness they experienced during the war and thus transferred to their children the feeling that all decisions are a matter of life and death. In contrast, in fighter families, parents tried to counteract the image of the victimized Jew. In these families, children showed difficulties in sharing and delegating responsibility, and appeared to have contempt and intolerance

9  Attachment theory was first developed by Bowlby (1969) and then refined by a number of other psychological researchers. In brief, attachment theory focuses on the relationship between the infant and his or her primary caregiver or attachment figure. The attachment figure serves two key functions, namely, to provide a haven of safety and comfort to which the infant can turn in times of distress or threat, and to provide a secure base for exploration of the environment in the absence of danger (Kirkpatrick et al., 1990).

In the Aftermath of Atrocities    561 for any dependency in themselves and others. In numb families, “the post-​war home atmosphere was characterized by pervasive silence and depletion of all emotions,” while the families of those who made it, who make up a heterogeneous group of families motivated by the desire to make it big, searched for purpose in their survival (Danieli, 1985, p. 302). This last category of families “tended to deny the long-​term effects of the Holocaust upon themselves and their children and would rarely discuss the Holocaust as a factor in their psychological lives” (Danieli, 1985, p. 303). In terms of specific parenting practices, communication is especially highlighted as impacting intergenerational trauma transmission. For instance, Weingarten (2004) argues that parents may unconsciously strike a compromise using one communication channel to tell and another to conceal. With an example, he shows that parents who remain largely silent about the traumatic past sometimes “telegraph information” to their children, who then struggle to put the pieces together (Weingarten, 2004, p. 51). Similarly, Braga et al. (2012 pp. 8–​9) find that indirect, fragmented, and catastrophic communication about the past negatively impacts the second generation, while more open and affectionate communication styles support resilience. Besides the presence or coherence of parental communication, the topic of communication has also been found to impact the child’s emotional well-​being. For instance, Stein (1994) finds that when fathers who fought in the Vietnam War discussed their personal combat experiences with their sons in graphic, vivid language, sons appeared to exhibit PTSD symptoms or “acting out” behavior and impulsivity, whereas when fathers showed empathy and were able to discuss neutral, noncombat-​related topics, sons appeared to be buffered from the transmission of trauma. Furthermore, among Holocaust survivors and their children, significant gender differences in effects of communication have been found (Lichtman, 1984). The gender both of the parent and of the child appears to matter. For instance, the mother’s communication seems to have a particularly negative impact on the second generation; sons of Holocaust survivors “on the whole, were not affected adversely by hearing about the Holocaust from their parents, whereas females, for the most part, were” (Lichtman, 1984, p. 921).10 Silence and fragmented communication have become largely understood in terms of a “conspiracy of silence,” a concept Danieli (1985, p. 298) developed to refer to how reactions of society at large “forced survivors to conclude that nobody cared to listen and that ‘nobody could really understand’ unless they had gone through the same experiences.”11 Silence, then, can also be, or in part be, a societal mechanism impacting trauma transmission across generations (Weingarten, 2004; Kienzler and Sula-​Raxhimi, 2019, p. 179). Most research on societal mechanisms of intergenerational trauma transmission, including on silence as a societal mechanism, has been conducted in the later phases of research when attention was broadened to include other population groups and disciplines (see Section

10 The importance of gender has also been found in studies on other mechanisms of trauma transmission (e.g., on parental maltreatment, see Palosaari et al., 2013; on epigenetic processes, see Costa, in Henriques, 2019). 11  It has also been suggested that representations of violence may not be possible “where there lies an absence of meaning, and it is not possible to give meaning to experience of extreme violence” (Argenti and Schramm, 2010, p. 12).

562   Lidewyde Berckmoes 4). An interesting study in this regard is that by Kupelian et al. (1998), who write about the public non-​acknowledgement of the Turkish genocide of the Armenians. They find that this non-​acknowledgement can be seen as a “psychological continuation of the genocide, and a second, continuing victimization” (p. 194). The non-​acknowledgement is found to cause frustration and anger among survivors, second-​generation, and third-​generation children residing in the United States.12 Also looking at societal dynamics, Buckley-​Zistel (2006) shows that people in post-​genocide Rwanda choose to remain silent because victims and perpetrators of atrocities are forced to live together. People seem to employ “chosen amnesia” as a coping strategy.13 Silence here thus serves as an attempt to avoid voicing polemic or divisive interpretations of the past and to preserve social co-​existence, at least in the short term (e.g., Argenti and Schramm, 2010).14 Recently also, there has been critique on conceptualizations of silence as necessarily a trauma transmission mechanism. Reacting to current perceptions of silence as negative, Kidron (2009, p. 7), for instance, notes that: “[w]‌hether the issue is personal, communal, or national silence, well-​being is thought to be contingent on the liberation of voice.” In her own study among Holocaust survivors in Israel, Kidron finds that silence is not necessarily pathological. Instead, silences regarding the Holocaust in her respondents’ everyday domestic lifeworlds confer “tacit knowledge” about the past, and are part of non-​traumatic, silent memory work (2009). Other scholars have questioned the universal validity of a “talking cure,” which has its roots in post–​World War One Europe (Robben and Orozco-​Suarez, 2000). Denham (2008), who conducted research among Native Americans suffering from “historical trauma” (see Section 4), suggests that the value of talking may be counterintuitive in non-​Western contexts. For instance, in a particular Inuit community, healing from trauma may require “the process of being in the silent company of another understanding person” rather than explicitly talking (Denham, 2008, p. 398).15 Evans-​Campbell and Walters (2006), also in the context of research with Native American and Alaskan Native communities, underline the importance of distinguishing communication based on trauma reactions versus culturally based communication styles, such as indirect communication. Fourth, as an example of biological mechanisms of trauma transmission, Weingarten (2004, p. 49) refers to studies by Yehuda and her colleagues: “Yehuda (2002) wrote a concise article in the New England Journal of Medicine. . . . In this article she posits cortisol as a candidate mechanism for such a cascade that can account for both the development

12  Enforced silence is seen in more recent conflict-​affected contexts as well. For instance, in Rwanda, Otake (2019) describes the effects of “unspeakability” of massacres officially unacknowledged by the government. She finds that the enforced silence may exacerbate suffering of victims, as they are obstructed from applying ready narratives or constructing their own narratives, “which could ordinarily help them to process mourning and reconciliation and to make sense of the loss” (p. 171). 13  The concept “chosen amnesia” is inspired by—​and described as the reverse of—​Volkan’s (2001) “chosen trauma,” which is discussed in Section 4 of this chapter. 14  In relation to this, we found that some parents in Rwanda did not speak with their children about their troubled pasts in an effort to prevent their children from feeling hatred for the “Other” ethnic group, and in doing so, “break” the cycle of violence (e.g., Berckmoes et al. 2017a; Eichelsheim et al. 2019). Conversely, in northern Uganda, Akello et al. (2010) found that some children choose to remain silent about their war-​related distress as a form of care toward others. 15  See also Black et al. (2019) for an example of a non-​Western model of “healing” from legacies of violence and institutional abuse, among Aboriginal people in Australia.

In the Aftermath of Atrocities    563 of trauma and its transmission across generations. This article is part of a line of research that Yehuda and her colleagues have been conducting for nearly two decades, focusing on the vicissitudes of cortisol in samples of Vietnam veterans and survivors of the Holocaust, among other groups.” Among a subset of children of Holocaust survivors, they found low levels of cortisol, which Weingarten interprets as “a sensitivity to danger” (2004, p. 49). Epigenetic effects16 of mass violence like these, it is argued, may imply long-​term risk for a variety of psychosocial problems, such as stress regulation, PTSD, and overall poor mental health in offspring (Yehuda et al., 2016; Costa et al., 2018; Denov et al. 2019). Research on biological mechanisms is still in its early stages (Henriques, 2019). An important question remains whether the found epigenetic effects of mass violence may also be considered adaptive, rather than “necessarily ‘bad’ ” (Weingarten, 2004, p. 49). For instance, if in the aftermath of mass atrocities an environment remains hostile, a sensitivity to danger may be advantageous for survival. In brief, in the first phases of research on the intergenerational transmission (of trauma) after mass atrocity violence, debate focused on identifying the origins of the mental health problems encountered among survivors’ offspring and on finding the possible pathways from parental war-​related trauma to children’s psychopathology. Interest in these questions continued in later phases of research, though from a broader perspective, as the discussions on silence as a societal mechanism and on silence as healing illustrated. In the following sections, I describe some more recent studies, conducted primarily in the late 1990s and early 2000s.

4.  New Developments: A Broadening of Orientations and Perspectives Over the last two decades, researchers interested in mental health after mass atrocity violence have called for more attention to the trauma context (e.g., Robben and Suarez-​Orozco, 2000; Dickson-​Gomez, 2002; Betancourt et al., 2015). These researchers argue for interdisciplinary and multi-​level analyses, because mass violence “targets the body, the psyche, as well as the sociocultural order” (Robben and Suarez-​Orozco, 2000, p. 1). Moreover, Summerfield (1996, p. 377) argues that “a broad view” will enable “a more richly textured understanding of the range of responses to war and atrocity and how these might be traced across decades and generations.” Danieli’s International Handbook of Multigenerational Legacies of Trauma (1998b, p. 1) is “one of the first endeavors to present and integrate multiple approaches with multiple populations around the world . . . about issues of multigenerational effects of trauma.” Another key volume is that of Argenti and Schramm (2010), who bring together anthropological studies from around the world in order to formulate an anthropological take

16  Epigenetics concerns the study of heritable changes in gene expressions. In other words, it concerns the study of changes in organisms that are caused by modification of gene expression (e.g., genes turned “on” or “off ”), rather than the alterations of the genetic code itself (see for instance, Dupont et al., 2009).

564   Lidewyde Berckmoes on intergenerational transmission after mass violence. Yet also other disciplines, among which history and political science and literary studies, contribute to a broader view (e.g., Lemarchand, 2000; Van Alphen, 2006; Tames, 2015; Van Acker, 2016; Norridge, 2021). In the next sections, I highlight three themes emerging from attention to different mass atrocity violence contexts and from research within this variety of disciplines. Namely, the relationship between mass atrocity violence and interpersonal violence, cultural transmission, and the impact of mass atrocity violence on group identity and, possibly, new conflict.

4.1. From mass violence to the “cycle of violence” A recent theme in the literature on the aftermath of mass atrocity violence concerns how exposure to such violence may inform domestic and other forms of interpersonal violence. The first studies concerned with this theme looked at Vietnam War veterans’ families and focused on mental health pathways of transmission. The Vietnam War left a strong mark on the veterans’ families, as veterans struggled with PTSD, higher levels of intimate partner violence, divorce, unemployment, and substance abuse, among other problems. Confronted with these family circumstances, researchers interested in the pathways to developmental problems among veterans’ children formulated new research questions about the intergenerational transmission after mass violence, especially concerning interpersonal, domestic violence (e.g., Harkness, 1993; Rosenheck and Fontana, 1998; Davidson and Mellor, 2001). Harkness (1993) explored both possibilities of secondary traumatization and of the presence of domestic violence as impacting children’s maladapted behavior. She found, as described by Catani (2010, p. 4), that “the strongest predictor of such disorders turned out to be the extent of domestic violence.” Harkness’ (1993) study is indicative of the recent interest in the relation between intergenerational transmission and the “cycle of violence” in conflict-​affected societies (Widom, 1989). The cycle of violence theory was developed in the context of domestic violence and child abuse (Widom, 1989). The idea is that violence—​abuse—​is passed down from generation to generation. In recent years, interest grew in whether also “war violence—​as is postulated for violence experienced in childhood—​is later reflected in increased aggressive behavior within the family and potentially in increased child abuse” (Catani, 2010, p. 2). Catani (2010) provides an overview of the extant knowledge on these relationships. Although she finds a general lack of empirical findings, her review suggests that relationships between war violence and child abuse are extremely complex. For instance, while higher levels of child abuse were indeed found among veterans’ families, the abuse was primarily attributable to the mother who was left behind when the father was deployed (Catani, 2010). In addition, among populations who are still living in their war-​affected society, secondary factors also play a role; war impacts not only the parents (and children), but also impacts the social and economic conditions, which also affect the family (see also Betancourt et al., 2015). Moreover, Catani argues, an important confounding variable in the study of effects of war violence on later family violence, which has not received much systematic attention, are the stressful childhood experiences of the parents themselves. Such experiences could feed into the cycle of abuse or may increase the likelihood to develop PTSD, which in turn may affect parenting (Widom, 1989; Catani, 2010). As stipulated earlier, parenting is considered a familial mechanism of intergenerational transmission. A later study from Catani’s research

In the Aftermath of Atrocities    565 group shows that in northern Uganda female guardians’ history of childhood victimization together with exposure to war increased children’s report of maltreatment (Saile et al., 2014). In the same context, for male guardians, PTSD and alcohol-​related problems related to increased children’s report of maltreatment (see also, Olema et al., 2014). Building on these insights, studies have started questioning how, in turn, family violence may inform community violence and, ultimately, war. For instance, in conflict-​affected Timor-​Leste, Rees et al. (2015) identify a pathway from mass violence to interpersonal violence and suggest that this may ultimately lead to new outbreaks of community violence and possibly war. They find that conflict and war affect male intimate partner violence (IPV), which in turn contributes to women’s “explosive anger,” which is expressed by women through more aggressive parenting. The authors do not explore how children respond, yet they hypothesize that children exposed to aggressive parenting and abuse may later engage in both family and community violence, which may affect new conflict and war. They base their assumptions primarily on research conducted within the field of criminology, which has shown that child abuse may increase anti-​social behavior in later life stages (Rees et al. 2015; see also Smith and Thornberry, 1995; Eichelsheim and De Weijer, 2018). Palosaari et al. (2013) are among the first to empirically test the full “cycle” from mass violence to children’s aggressive conduct via child (psychological) maltreatment. They find a positive relation between the fathers’ past war trauma and children’s mental health and aggressive conduct problems, which is mediated by psychological maltreatment, among Palestinians in Gaza. Contrary to expectations, however, they find that “the more the mothers had current war trauma the less the children had aggressive conduct problems” (Palosaari et al., 2013, p. 961). This finding may indicate that war trauma results in a decrease in both positive and negative parental behavior at the time of conflict, perhaps akin to numbing. Alternatively, it could be a culture-​specific finding indicating that war-​exposed Palestinian mothers behave more positively toward their children, possibly because “their role is to be the caretakers of their fellow group members in conflicts” (Palosaari et al. 2013, p. 965). Similarly, in our study in conflict-​affected Burundi, we explored the role of parenting in the intergenerational transmission of violence (Berckmoes et al., 2017b). All families included suffered from the civil war in Burundi (1993–​2005) and are seen by their communities as vulnerable to violence for a variety of reasons, such as because they are living in displacement camps, have a household member who is an ex-​combatant,17 or because they are experiencing extreme poverty. In these families, harsh and neglectful parenting was associated with negative child development outcomes, with sometimes maladapted, externalizing behavior. Notably, we also found that nurturing parenting fosters children’s resilience to violence, despite exposure to severe stressors in the family and community. To summarize, these studies investigate the pathways from mass atrocity violence to later interpersonal, domestic violence, and some suggest possible relations with new outbreaks of community violence and war. The studies foreground mental health and family mechanisms, specifically parenting, to explain how children may suffer and/​or become engaged in violent behavior.18 17 

See also Song et al. (2014) for another study on the role of parenting in the transmission of trauma among ex-​combatant parents in Burundi. 18  Some studies suggest other mechanisms to explain pathways from mass atrocity violence to post-​ war, interpersonal violence. A notable example is the study by Bourgois (2001; 2002), who explores

566   Lidewyde Berckmoes

4.2. Mechanisms of cultural transmission With the attention of diverse disciplines to intergenerational transmission of trauma and violence after mass atrocities, a broader array of possible intergenerational transmission mechanisms has started to be recognized. For instance, in our study on the intergenerational transmission of legacies of the genocide and its aftermath in families in Rwanda, we found that besides direct communication about the traumatic past, indirect, non-​discursive mechanisms like experiences of economic downfall, increased household burden on remaining family members, and diminished familial productivity due to health problems were critical (Berckmoes et al., 2017a; Eichelsheim et al., 2019). Filippucci (2010, p. 177) provides another example: in the context of Argonne, France she argues that ruins punctuating the landscape “continue to generate ‘knowledge and experience’ of the war.” Building on the variation of possible transmission mechanisms, some studies suggest that intergenerational transmission in the aftermath of mass atrocity violence might thus best be approached in the same way as cultural transmission: “[trauma] can be transmitted to future generations in much the same way cultural beliefs are transmitted from parents to children” (Dickson-​Gomez, 2002, p. 343, in the context of post-​conflict El Salvador). Cultural transmission can be defined as “a transfer process carrying cultural information from one generation to the next, and from one group to the next” (Schönpflug, 2009, p. 1). In El Salvador, transmission occurs by the parents’ reactions to and interpretations of everyday events in relation to the guerilla war. In addition, it is expressed through illness narratives by sufferers of the local illness called “nervios.” These narratives “transmit trauma and point to the basic immorality of the war.” Third, transmission occurs through the symptoms of nervios, which point to “what is generally not voiced, such as the destruction of primary relationships in family and unresolved grief and helplessness” (Dickson-​Gomez, 2002, p. 415). To sum up, transmission occurs consciously and unconsciously, explicitly in narratives or verbal exchanges and implicitly in illness symptoms. Notably, in Dickson-​Gomez’ (2002, p. 416) study, trauma refers to “more than just . . . psychological symptoms,” and includes “the process by which a traumatized worldview of fear, pessimism, and violence is socialized in the next generation.” Another interesting example, which builds on learning theory to explain how violent practices are transmitted across the generations, is the study by Rydstrom (2006; see also Uslucan and Fuhrer, 2009). In her ethnographic study in rural Vietnam, she describes how the brutality of the Vietnamese history affects child abuse through its impact on (a militaristic) masculine discourse, which allows for the use of violence to re-​establish the patrilineal, organized social order. Children also adopt this use of violence in their interactions with peers. She thus argues that, “cycles of violence can be passed on from one generation to the next as a discursive and masculine practice” (Rydstrom, 2006, p. 343). Our study in

everyday domestic and delinquent violence in El Salvadorian communities in light of the past civil war. He argues that during the war, the governments’ brutality was transposed into the guerillas’ organizational structures and internal relations, in the process systematically distorting social relations and sensibilities, causing shameful wartime memories. In addition, the structural violence that persists after the civil war, “often becomes expressed in an everyday violence of interpersonal rage and delinquency,” and “reverberate into the symbolic violence of self-​blame and shame” (2002, p. 223).

In the Aftermath of Atrocities    567 Burundi also builds on learning theory to understand how children deal with and may reproduce violence in the aftermath of war (Hendriks et al., 2020). We show that the children develop a “logic of violence”19 in their confrontations with violence in and around school. We found five distinct strategies children employ when faced with (potential) violence, which all aim at reducing one’s own vulnerability to violence. We argue that these strategies might also allow for the reproduction of societal violence, as they reflect social hierarchies of inequality and exclusion that prevailed in past patterns of mass atrocity violence. For instance, children’s logic of violence reflects that they learn from an early age that more powerful social actors, such as teachers, can legitimately use force to coerce particular others.20 To summarize, these studies point to a great variety of ways through which the impact of mass atrocity violence reverberates in the aftermath of war. This is exemplified by the statement by Both (2017), who conducted research in northwestern Uganda. She argues that in northwestern Uganda “conflict legacies [may shape] identification practices (‘we are fearless [people]’), actions (specific voting behavior)21, and emotions (fear)” (2017, p. 17). In our study in Rwanda, we (Berckmoes et al. 2017a; Eichelsheim et al. 2019, p. 14) dub such continued influences “heterotypic continuity,” while Dickson-​Gomez (2002, p. 434) speaks of “trauma” becoming “a significant part of culture.”

4.3. Mass atrocity violence and group identity A third theme in recent literature on intergenerational effects of mass atrocity violence is the influence of traumatic events on people at a group level, particularly regarding identity. In this literature, the past figures either as “experience” or as “representation” in present dynamics of violence and suffering. Exemplifying the first, that is, past as “experience,” is research investigating “historical trauma” among American Indian and Alaska Native (AIAN) communities. Historical trauma is conceptualized as the legacy of numerous traumatic events experienced over generations and encompasses psychological and social responses to such events (Evans-​ Campbell, 2008). Conceptualizations of historical trauma build closely on the psychoanalytic, trauma framework developed in the post–​Second World War studies mentioned earlier in this chapter. Of particular importance are societal mechanisms such as community-​ level effects of a breakdown of traditional culture and values, the loss of traditional rites of passage, high rates of alcoholism, high rates of physical illness, and internalized racism (Evans-​Campbell, 2008). The multiple experiences of traumatic events over different time periods have compounding effects. In addition, there is interaction with contemporary trauma. For instance, AIAN communities experience high rates of contemporary assault

19  The concept “logic of violence” is inspired by Bourdieu’s “logic of practice,” (1990) which refers to how norms and rules available in the ecological environment can serve as interpretative resources for strategic action. The concept was mentioned earlier by Debos (2011) in her study among young people’s adoption of violence as a recourse in their daily lives and careers in post-​conflict Chad. 20  Also interesting in this regard are the studies by Van Acker (2016) or Rufyikiri (2017), who explore mechanisms reproducing the long-​standing “violent political culture” in Burundi in the aftermath of the civil war. 21  See also research on “political socialization” (e.g., Van Oosterom and Pswarayi, 2019).

568   Lidewyde Berckmoes and discrimination. Given the context of historical trauma, these contemporary events “take on additional weight,” as “[f]‌rom an indigenous perspective, these events are understood as clearly linked to historical events and patterns of trauma” (Evans-​Campbell, 2008, p. 331). Researchers of AIAN communities furthermore suggest that these communities may be more susceptible to historical trauma than some other communities, as the importance of extended family and community systems means that many people have “linked lives,” causing traumatic events to quickly ripple out (Walls and Whitbeck, 2012). Other researchers approach past traumatic events primarily as “representation.” They suggest that representations of a traumatic past may become central in the formation of a large group identity. They call this “cultural trauma” (Alexander et al., 2004; Eyerman, 2004). As such, Eyerman (2004) proposes that representations of slavery—​as a form of collective memory—​have become central in the formation of African American identity. Narratives played a key role in this process: “While ‘the past’ may be embodied in material objects . . . what the past means is recounted, understood and interpreted and transmitted through language and through dialogue. These dialogues are like stories, narratives” (Eyerman, 2004, p. 47). The narratives serve as framing structures. Eyerman (2004) further argues that the process of cultural trauma was set in motion only in the aftermath of slavery, as expectations by new, black intellectuals were crushed. The past was reevaluated in search of new foundations. In the process, a collective subject was created, and there was a shift of collective identity from the local community to the national and international levels, processes in which mass media and political elites played an important role.22 Eyerman thus shows that the narratives of the past are not static. When inherited frameworks of meaning or interpretation do not “fit” a new situation, new frameworks and tactics may be called upon. A similar argument is made by Volkan (2001) when he speaks of “chosen trauma.” When members of a group experience a severe and collective trauma, the effects should not be simply understood as shared between members, but as becoming part of the fabric—​or canvas—​of the large group identity. The mental representation of past tragedies, as “historical or mythicohistorical events,” can thus be transmitted across the generations and change function: over time, they become a marker linking members of a group (Dickson-​Gomez, 2002, p. 417). Such a marker is a chosen trauma, as it reflects a large group’s unconscious “choice” to add a past generations’ mental representation of an event to its own identity. The concept of chosen trauma, Volkan suggests (2001, p. 80), may help shed light on the apparent willingness of many large groups to wage war, “to greater or lesser degrees, over identity.” Chosen traumas can be reactivated within a large group by stressful and anxiety-​ inducing circumstances, leading to a “time collapse”: “An ancient enemy will be perceived in a new enemy, and the sense of entitlement to regain what was lost, or to seek revenge against the contemporary enemy, become exaggerated” (Volkan, 2001, p. 89). An example is the unfolding of violence committed by the Serbs against the Muslims of Kosovo in the

22  In the context of conflict in Rwanda and the eastern Democratic Republic of the Congo, Mathys (2017, p. 465) argues that academic research can also play a role in producing historical narratives that are “ ‘naturalizing’ differences and antagonisms between different groups by giving them more time-​depth.” He thus proposes critical reflection on historiography.

In the Aftermath of Atrocities    569 early 1990s. In Kosovo, the loss suffered at the Battle of Kosovo in the 14th century became a chosen trauma, which was reactivated by Slobodan Miloŝević and a few others in his circle centuries later. In the process of reactivation, “[a]‌ffects pertaining to the traumatised self-​ images were felt anew; sharing this invisibly with all Serbs more closely, and they began to develop similar self-​images in which there was a drastic change: a new sense of entitlement for revenge” (Volkan, 2001, p. 93). Although Volkan acknowledges that what happened in Bosnia-​Herzegovina cannot be reduced to the reactivation of a chosen trauma only, the example illustrates how a chosen trauma becomes an inseparable ethnic marker that can be reactivated and feed into new violence.23 Volkan’s work (2001) resonates with the study of Odejide et al. (1998) on “intergenerational aspects of ethnic conflict,” set in Nigeria. Their argument is that mass violence strongly impacts existing social cleavages, and through these cleavages plays a role in outbreaks of mass atrocity violence in Nigeria. Similarly, Uvin (1999) suggests that mass atrocity violence in Burundi in 1972 rigidized social boundaries for generations. It served as a chosen trauma that was absorbed in the sense of self-​identity among the Hutu population in the decades after.24 In brief, these studies all explore how legacies of mass atrocity violence may become influential in shaping new violent “political realities on the ground,” particularly through the impact on group-​level identity formation (Kienzler and Sula-​Raxhimi, 2019, p. 173).

5.  What about the Conflict Trap? So far in this chapter, I have shown how research interested in the long-​term effects of mass atrocity violence developed from a focus on psychic trauma transmission to an interest in how trauma and violence, broadly understood, may reverberate at individual, familial, and community levels in the aftermath of atrocities. Moreover, an array of these more recent studies have hinted at connections between intergenerational processes and new or recurrent outbreaks of mass atrocity violence. Yet, there is still limited knowledge regarding how to understand the linkages between intergenerational transmission of trauma and violence and recurrent outbreaks of mass atrocity violence, which is sometimes referred to as “the conflict trap” (Collier et al., 2003). The conflict trap entails that a first conflict may fuel subsequent outbreaks of mass violence (Collier et al. 2003; Hegre et al. 2011). Theories explaining the conflict trap point to the importance of structural risk factors, such as economic or political systems or demographic features of societies. For instance, low economic development has been found to relate to the onset of conflict, and conflict has strong adverse effects on this major conflict risk factor (Collier et al. 2003; Hegre et al.

23 

Notably, the context of former Yugoslavia continues to yield concern and research about the role of legacies of mass violence for potential new outbreaks of mass atrocity violence (e.g., Kienzler and Sula-​ Raxhimi, 2019). 24  See also Mamdani (2001), who traces the outbreak of genocide in Rwanda in his book When Victims Become Killers.

570   Lidewyde Berckmoes 2011). Similarly, an exclusionary political system may be a vector for recurrent outbreaks of violence, as historian Lemarchand (2000) explains is the case for the Great Lakes region: Briefly stated, the central pattern that recurs time and again is one in which ethnic polarization paves the way for political exclusion, exclusion eventually leading to insurrection, insurrection to repression, and repression to massive flows of refugees and internally displaced persons, which in turn become the vectors of further instability. (Lemarchand, 2000, p. 2)

Overall, researchers, including those looking at intergenerational transmission of trauma and violence, tend to agree that explanations for cycles of mass atrocity violence “must be sought primarily in the structural conditions obtaining in the postwar period” (Lumsden, 1997, p. 377). Nonetheless, it is also believed that “the human factor” (Hegre et al. 2011, p. 7) or “psychosocial consequences of the war . . . may add an additional, destructive dimension to the dynamics of the ‘post-​conflict’ situation” (Lumsden, 1997, p. 377). Lumsden (1997, p. 377, emphasis in original) proposes that one way of understanding this additional dimension may be by looking at how “the imagery and mythology of war can become an unconscious organizing principle, determining how people see the world a generation later and how they choose to act.” He continues, saying that “the small minority that adopts a militaristic strategy of revenge may become a major factor in precipitating a new round of violence should socioeconomic and political conditions deteriorate” (Lumsden, pp. 377–​378, emphasis in original). Yet, I would argue that his thesis still begs the question: How can we explain that this minority comes to play such a major role? The answer might best be sought in the relationship that exists between the minority and the larger community of which it forms part. Another study, by Kublitz (2016), similarly points to the combination of a particular worldview and structural factors to explain multi-​generational involvement in conflict. Kublitz explores how two different historical generations of Palestinian refugees—​the parental generation in Lebanon and the youth generation in Denmark—​have become involved in conflict: in Lebanon, the Arab defeat in the Arab-​Israeli War, and in contemporary Denmark, the battle of culture promoted by the Danish government (Kublitz, 2016, p. 81). First, she finds that memory of the traumatic past is passed on from one generation to the next through different “types of silences” in the Palestinian refugee families in Denmark. The silences transmit a particular worldview, namely, one in which their people are victimized and oppressed. Yet, as silences are also elusive, the gaps in communication enable the young generation to project their own experiences onto their parents’ past experiences (Kublits, 2011). Second, both the parent and the young generations share a position of marginality and exclusion. In Lebanon, the parent generation was excluded from the national order as foreigners and refugees, and in Denmark, Palestinians are neither granted citizenship nor recognized as Palestinians. Consequently, she argues, both historical generations seized and fueled respective contemporary conflicts to enforce change (Kublitz, 2016). The studies of Lumsden (1997) and Kublitz (2016) provide directions for further study on identifying the interrelationships between the intergenerational transmission of trauma and violence and recurrent outbreaks of mass violence. Nonetheless, a note of carefulness is warranted, as the long-​term temporalities of family reproduction and of shared history differ (Feuchtwang, 1998). Indeed, there is the risk to conflate different senses of generation

In the Aftermath of Atrocities    571 when connecting findings about parent-​child or other generational kinship relations with findings at the level of population cohorts or historical periods.

6.  Conclusion In this chapter I traced the developments in the interdisciplinary field of research on the intergenerational transmission of trauma and violence after mass atrocities. The roots of this field can be found especially in clinical practice with Holocaust survivors’ children. More recent research includes other population groups and contexts affected by mass atrocity violence and is conducted within a wide variety of disciplines. The new orientations and perspectives have helped to shed light on the multiple and multi-​level ways in which trauma and violence may be transmitted and affect the “children and grandchildren of people who have experienced conflict and genocide” (see introduction). The review in this chapter also points to many gaps and areas in need of further, empirical, and conceptual work. More empirical research is needed, for instance, on how mass atrocity violence can feed into interpersonal violence and vice versa. Research on the relationship between intergenerational transmission of trauma and violence with structural dimensions, including structural violence, moreover, needs to be strengthened. In this regard, I have referred to several studies that relate the necessity of situating intergenerational transmission processes in contemporary circumstances—​circumstances that are often marked by structural violence (Galtung, 1969): “forms of injustice—​oppression, marginalization, inequality, exploitation, domination, and repression” (Galtung, 1969; Parsons, 2007, pp. 175–​176). In addition, as many findings on the mechanisms involved in intergenerational transmission of trauma and violence remain contradictory, further studies are needed to find out under what circumstances specific transmission mechanisms are pertinent and which are not. Attention to these and other issues will contribute to improving efforts to “help descendants of survivors and refugees move beyond victimhood to reconciliation and peace building,” and enable addressing the deep experiences of contemporary violence, and therewith perhaps help prevent a conflict trap (Chaitin and Steinberg, 2013, p. 13). At the same time, we should not assume that patterns of violence and trauma must be passed on to future generations (Levine, 2000). An important challenge for the next “generation” of research is to also identify how, when, and why intergenerational transmission of violence and trauma does not take place.

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576   Lidewyde Berckmoes Rosenheck, R., and Fontana, A. (1998) “Transgenerational Effects of Abusive Violence on the Children of Vietnam Combat Veterans.” Journal of Traumatic Stress 11(4), pp. 731–​742. Rosenheck, R., and Nathan, P. (1985). “Secondary Traumatization in Children of Vietnam Veterans.” Hospital and Community Psychiatry 36 (5), pp. 538–​539. Roth, M., Neuner, F., and Elbert, T. (2014) “Transgenerational Consequences of PTSD: Risk Factors for the Mental Health of Children Whose Mothers Have Been Exposed to the Rwandan Genocide.” International Journal of Mental Health Systems 8(12), pp. 1–​12. Available at: https://​doi.org/​10.1186/​1752-​4458-​8-​12 (Accessed: September 13, 2019). Rowland-​Klein, D., and Dunlop, R. (1997) “The Transmission of Trauma across Generations: Identification with Parental Trauma in Children of Holocaust Survivors.” Australian and New Zealand Journal of Psychiatry 32(3), pp. 358–​369. Rufyikiri, G. (2017) “The Post-​Wartime Trajectory of CNDD-​FDD Party in Burundi: A Façade Transformation of Rebel Movement to Political Party.” Civil Wars 19(2), pp. 220–​248. Rydstrom, H. (2006) “Masculinity and Punishment: Men’s Upbringing of Boys in Rural Vietnam.” Childhood 13(3), pp. 329–​348. Saile, R., Ertl, V., Neuner, F., and Catani, C. (2014) “Does War Contribute to Family Violence against Children? Findings from a Two-​Generational Multi-​Informant Study in Northern Uganda.” Child Abuse and Neglect 38(1), pp. 135–​146. Schönpflug, U. (ed.) (2009) Cultural Transmission: Psychological, Developmental, Social and Methodological Aspects. New York: Cambridge University Press. Smith, C., and Thornberry, T.P. (1995) “The Relationship between Childhood Maltreatment and Adolescent Involvement in Delinquency.” Criminology 33(4), pp. 451–​481. Solkoff, N. (1992) “Children of Survivors of Nazi Holocaust: A Critical Review.” American Journal of Orthopsychiatry 62(3), pp. 342–​358. Solkoff N. (1992) “Children of Survivors of Nazi Holocaust: A Critical Review.” American Journal of Orthopsychiatry. 62: 342–​358. Song, S.J., Tol, W., and de Jong, J. (2014) “Indero: Intergenerational Trauma and Resilience between Burundian Former Child Soldiers and Their Children.” Family Process 53(2), pp. 239–​251. Stein, D.H. (1994) Intergenerational Effects of PTSD: A Hypothesis Concerning Mode of Transmission. PhD thesis, New York: Adelphi University. Summerfield, D. (1996) “The Psychological Legacy of War and Atrocity: The Question of Long-​Term and Transgenerational Effects and the Need for a Broad View.” The Journal of Nervous and Mental Disease 184(6), pp. 375–​377. Tames, I. (2015) “Children of Dutch Nazi Collaborators.” European Review of History: Revue Européenne D’histoire 22(2), pp. 221–​241. Uslucan, H.H., and Fuhrer, U. (2009) “Intergenerational Transmission of Violence.” In: Schönplug, U. (ed.) Cultural Transmission: Psychological, Developmental, Social and Methodological Aspects. New York: Cambridge University Press, pp. 391–​418. Uvin, P. (1999) “Ethnicity and Power in Burundi and Rwanda: Different Paths to Mass Violence.” Comparative Politics 31(3), pp. 253–​271. Van Acker, T. (2016) “Exploring the Legacies of Armed Rebellion in Burundi’s Marquis par Excellence.” Africa Spectrum 51(2), pp. 15–​37. Van Alphen, E. (2006) “Second-​ Generation Testimony, Transmission of Trauma, and Postmemory.” Poetics Today 27(2), pp. 473–​488.

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PA RT V

R E AC T ION S TO AT RO C I T Y C R I M E S

CHAPTER 25

Tr ansitional J u st i c e i n the 2 1st Ce nt u ry History, Effectiveness, and Challenges David Tolbert and Marcela Prieto Rudolphy This doubt of people concerning themselves and the reality of their own experience only reveals what the Nazis have always known: that men determined to commit crimes will find it expedient to organize them on the most vastest, most improbable scale. Not only because this renders all punishments provided by the legal system inadequate and absurd; but because the very immensity of the crimes guarantees that the murderers who proclaim their innocence with all manner of lies will be more readily believed than the victims who tell the truth. [ . . . ] We attempt to understand elements in present or recollected experience that simply surpass our powers of understanding. We attempt to classify as criminal a thing which, as we all feel, no such category was ever intended to cover. What meaning has the concept of murder when we are confronted with the mass production of corpses? —​Arendt, 1973, p. 2391

1.  Introduction This chapter reviews and examines the development, challenges, and effectiveness of transitional justice. It first surveys the emergence of transitional justice processes, tracing past steps, and then closely reviews the development of transitional justice processes in the 20th and 21st centuries (Section 2). Thereafter, in Section 3, it reviews key issues facing transitional justice, including questions of efficacy, its relationship with criminal justice,

1 

Emphasis added.

582    David Tolbert and Marcela Prieto Rudolphy the role of victims, the “check the box” approach, gender issues, “transformative justice,” and “donors’ justice.” These appear to us as key issues and questions that practitioners and scholars alike are wrestling with—​and will continue to debate—​well into the 21st century.

2.  The “Roots” of Transitional Justice 2.1. The emergence of transitional justice as a concept Human history is replete with “atrocity crimes.”2 They often occur during armed conflict and are also inflicted, in various circumstances, by states and others on a wide array of individuals, groups, and minorities. While humankind’s earliest histories describe war and mass killing, attempts to provide for accountability and redress for atrocity crimes have a long if quite uneven lineage (Elster, 2004). These include acts of apology, contrition, reparation, and other forms of accountability for what we now see as the most grievous of crimes. Indeed, Jon Elster (2004) traces the emergence of “transitional justice” (if not the term) to the ancient Greeks. He also points to certain steps taken to address violations during the French Restoration following the French Revolution (Elster, 2004). While Elster’s research shows the underlying need of societies to address atrocities using various approaches, there is little evidence that these experiences from the distant past have had a direct impact on current transitional justice processes. In any event, the term “transitional justice” is very much of the 20th century, with a number of claimants of being the first to enunciate it (Arthur, 2009, pp. 329–​330). Transitional justice became generally accepted and part of the vocabulary in the academy with the publication of Transitional Justice, edited by Neil Kritz with a foreword by Nelson Mandela (Kritz, 1995a; Kritz, 1995b; Kritz, 1995c). This multi-​volume compendium covered a range of countries and processes, with contributions by many well-​known figures, for example, José Zalaquett (1995), dealing primarily with post-​authoritarian societies. This treatise and its contributors began to define what has now become the “field” of transitional justice and did much to establish a paradigm of transitional justice processes, focusing on trials, truth-​ telling mechanisms, reparations, and reforms (now often referred to as “guarantees of non-​ recurrence”).3 However, they also narrowed a broad range of rich experiences in various 2  According to the United Nations, “atrocity crimes” take on three forms: genocide, crimes against humanity, and war crimes. Nevertheless, in the context of Responsibility to Protect, the term “atrocity crimes” has been extended to include ethnic cleansing. While ethnic cleansing is not defined as an independent crime under international law, it includes acts that are serious violations of international human rights and humanitarian law that may themselves constitute atrocity crimes. The crime of aggression, also an international crime, is usually treated separately and not considered an “atrocity crime.” For reasons of space, we cannot address the issue in this chapter. See United Nations (2014) Framework of Analysis of Atrocity Crimes: A Tool for Prevention. Available at: https://​www.un.org/​en/​ genocideprevention/​documents/​publications-​and-​resources/​Genocide_​Framework%20of%20Analysis-​ English.pdf (Accessed: January 30, 2019). See also Chapter 1 by Jeremy Kuperberg and John Hagan in this volume. 3  UNSC “The Rule of Law and Transitional Justice in Conflict and post-​conflict Societies: Report of the Secretary-​General:” (August 23, 2004) UN Doc S/​2004/​616.

Transitional Justice in the 21st Century    583 countries to a more specific set of measures that were comparatively limited (Garton Ash, 1998; Elster, 2004). While an analytical approach is likely to categorize complex experiences into definable areas, it also is reductive in nature. One of the chief criticisms of Kritz and his contributors’ approach (1995b) was an almost singular focus on countries “transitioning” to democracy from authoritarian regimes which had massively violated human rights. This transition to democracy was, in Kritz’s book, linked to a commitment to respecting human rights. As discussed later, this focus raises several challenges that continue to bedevil the field of transitional justice. Although Kritz’s compendium certainly had the effect of both establishing and defining the term “transitional justice” at least for a time, the renowned if in this case lonely critic, Timothy Garton Ash, raised serious questions about the usage of those terms. As Paige Arthur (2009, pp. 331–​332) noted: [Garton] Ash was the only reviewer to call into question the utility of the linguistic invention of “transitional justice.” For him, the book was “too narrowly titled,” and in fact, no word or phrase existed in English that captured the full range of all of its attending processes. . . . . . . [He suggested German terms that:] translated as “treating” the past, [or] “working over” the past, “confronting” it, “coping, dealing or coming to terms with” it; even “overcoming” the past . . . , indicating the complexity of the matter at hand.

Garton Ash (1998) also argued that historians were better placed and skilled to make assessments of the records of the past and wrestle with the legacy of massive abuses. He was concerned as well with the authors’ focus on “truth” in transitional justice, worried that “truth is a big word, so often abused,” and was keen to place limits on it (Garton Ash, 1998). As Arthur (2009) noted, Garton Ash challenged the contents of what Kritz had presented as “transitional justice.” In his view, the “historians’ debate”4 in Germany in the late 1980s on how to understand the causes, and interpretation of, the Nazi era was a model for addressing the past, rather than legal or quasi-​legal processes. Notably, historians did not play a major role in Kritz’s book, and Arthur (2009, p. 333) argues that “transitional justice was presented as deeply enmeshed with political problems that were legal-​institutional and, relatively, short-​term in nature. So short-​term, in fact, that they could be dealt with specifically during a ‘transitional period.’ ” Kritz’s book shaped the discourse and agenda for transitional justice over the last decades, but Garton Ash’s critique has had, at least in practice, some resonance. Over time, it is clear that transitional justice as defined in normative documents issued by the United Nations, and other authoritative bodies, has broadened beyond countries transitioning to democracy.5 While there are current examples of countries moving from authoritarian regimes to democratic governments, for example, Tunisia, the use of transitional justice measures in such countries are outnumbered by transitional justice processes in societies that have

4 

“Historikerstreit” (in German) was a debate between conservative and more progressive historians regarding German responsibility for Nazi Germany and the Holocaust (Bathrick et al., 1988; Maier, 1988; Baldwin, 1990). 5  International Center for Transitional Justice (n.d.) What Is Transitional Justice? Available at: https://​ www.ictj.org/​about/​transitional-​justice (Accessed: 27 January 2019); United Nations (2010) United Nations Guide to Transitional Justice. Available at: https://​www.un.org/​ruleoflaw/​files/​TJ_​Guidance_​ Note_​March_​2010FINAL.pdf (Accessed: December 20, 2018).

584    David Tolbert and Marcela Prieto Rudolphy experienced atrocity crimes due to armed conflict (Aboueldahab, 2017). Moreover, transitional justice processes have arisen in a range of situations, notably increasingly incorporated into peace agreements or negotiated in peace processes, as well as addressing historic violations not related directly to a transition per se (Arthur, 2009, pp. 361–​362). Although the “democratic transition” paradigm Kritz established still overhangs the transitional justice discourse in several respects, practitioners and scholars have struggled against the strictures created by Kritz’s book. In another respect, Garton Ash’s essential point still stands: historians play a minor role in transitional justice processes as compared, for example, to lawyers and judges (McEvoy, 2007).6 However, his hypothesis—​that historians are better positioned to assess the past—​is also too narrow: in the case of, for example, truth commissions, commissions of inquiry, reparations processes, a wide variety of professionals have played important roles. For example, the Tunisian Truth and Dignity Commission was chaired by journalist Sihem Bensedrine (Moaveni, 2016), and the South African Truth and Reconciliation Commission was chaired by Archbishop Desmond Tutu.

2.2. The normative framework: Pre–​20th century developments Before turning to transitional justice in the 21st century, two different bodies of law frame and influence the concept and practice of transitional justice. One is the development of human rights law, which has its modern roots in the Universal Declaration of Human Rights in 1948 and the International Covenants.7 The other primary source for the protection of individuals is international humanitarian law.8 International humanitarian law has evolved considerably over time and is set forth in the Geneva Conventions, The Hague Regulations, other treaties, and customary international law.9 6  McEvoy criticizes the legalistic nature of the field, and in turn, the role of lawyers to the detriment of other disciplines. 7  Universal Declaration of Human Rights (adopted December 10, 1948 UNGA Res 217 A(III) (UDHR) (UDHR); International Covenant on Economic, Social, and Cultural Rights (adopted December 16, 1966 entered into force January 3, 1976) 993 UNTS (ICESCR); International Covenant on Civil and Political Rights (adopted December 16, 1966, entered into force March 23, 1976) 999 UNTS 171 (ICCPR). 8  “Universal codification of international humanitarian law began in the nineteenth century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare.” International Committee of the Red Cross (2004) What Is International Humanitarian Law. Available at: https://​www.icrc.org/​en/​doc/​assets/​files/​other/​what_​is_​ihl.pdf. (Accessed: December 15, 2018). 9  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force

Transitional Justice in the 21st Century    585 Prior to the violent 20th century, the adoption of the Lieber Code (Lieber, 1863) by the United States set forth elements of humanitarian law, which had limited impact during the American Civil War, that is, the prosecution of Henry Wirz, the commandant of the infamous Confederate Andersonville prison (Finkelman, 2013).10 There were also nascent attempts following the war to address massive abuses suffered by African Americans as a result of slavery, including some very limited elements of what might be characterized as reparations, in particular the proposal of distributing “40 acres and a mule” to ex-​slaves and other forms of redress as well as, notionally, political participation (Gates, Jr., 2013).11 However, these steps were stillborn and little was done to address the violations of basic rights of African Americans either de jure or de facto for almost a century (Foner, 2012; Coates, 2014). World War I, while technically in the 20th century, had some characteristics of a 19th-​ century conflict. It mirrored the previous century’s approach to a dearth of accountability and justice, but with a hint of what would come. The Versailles Treaty provided for the prosecution of Kaiser Wilhelm, although he fled to the Netherlands and never faced any form of justice (Willis, 1982). In the wake of that conflict, the post-​war settlement focused very much on the question of nationalities. The ensuing decisions were based on the theory that homogenous states would lead to less conflict and more cohesion. Thus, negotiators focused on the creation of smaller states with fewer ethnic and national groups. (Steiner, 2005, pp. 256–​313). The defeated states were required to pay significant “reparations” (Sagi, 1980; Kent, 1992). However, these reparations served a punitive purpose, imposing payments on the losing country.12 As such, they were quite counterproductive and bear no relation to reparations processes in the current era (Falk, 2006, p. 486). There are other examples of processes that have echoes of modern-​day transitional justice.13 Nonetheless, while there is some foreshadowing of an approach to addressing the past in what would be later characterized as “transitional justice,” it is difficult to identify any pattern of addressing violations prior to the middle and latter parts of the 20th century. Clearly “transitional justice” as a field only began to develop in the latter part of the

December 7, 1978) 1125 UNTS 609 (Protocol II); Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted October 18, 1907, entered into force January 26, 1910) (Hague Convention). 10 Wirz

was found responsible for multiple violations of the Code and was executed, following conviction by a special military tribunal. 11  For a historical overview see Blight (2002, pp. 98–​139) and Foner (1988). Redress measures included economic measures such as land allocation. Establishment of “Freedmen’s Bureau” in 1865 “promised every male citizen, whether refugee or freedman, forty acres of land at rental for three years with an option to buy.” 1866 Homestead Act. Note the ultimate failure of any redress measures regarding land (Mitchell, 2001; Marable, 2011). 12  And as counterargument, MacMillan (2001, p. xxx) argues that the reparations did not lead to World War II: “People said at the time, as they have ever since, that the peacemakers took too long and that they got it wrong. It has become commonplace to say that the peace settlements of 1919 were a failure, that they led directly to the Second World War. That is to overestimate their power.” Furthermore, “Hitler did not wage war because of the Treaty of Versailles, although he found its existence a godsend for his propaganda” (MacMillan, 2001, p. 493). 13  International Center for Transitional Justice (n.d.) What Is Transitional Justice. Available at: https://​ www.ictj.org/​about/​transitional-​justice (Accessed: January 27, 2019).

586    David Tolbert and Marcela Prieto Rudolphy 20th century (Teitel, 2003; Arthur, 2009). Thus, turning to the question of what transitional justice in the 21st century may look like, it is the bloody 20th century that is the point of departure.

2.3. The 20th century: Overview of developments Transitional justice developed as a response to the many atrocity crimes committed in the 20th century rather than to human rights violations per se. These crimes are clearly defined by international law and include war crimes, crimes against humanity, genocide, and, arguably, aggression.14 There are several factors that are worthy of note. One element was the technological advances in weapons that dramatically increased the number of victims. Moreover, the advance of communications increased attention and publicity of atrocity crimes within the international community. This trend has already increased exponentially in the 21st century with the development of social media and other media platforms, which have also become a key tool in documenting atrocities (Rajagopalan, 2018).15 A litany of atrocities occurred during the 20th century. Due to the wide-​reaching nature of World Wars I and II, as well as the subsequent proxy wars orchestrated by the Great Powers, combined with the creation of weaponry that produced much greater destruction capacity, causing widespread death and destruction, the number of atrocity crimes was staggering (Leitenberg, 2006; Nagdy and Roser, 2020; Roser, 2019). These include, for example, the Holocaust; the genocide of the Armenians; massive repression in Latin America; colonial abuses by the European powers, particularly during the systematic repression of the civilian population in Madagascar, Kenya, Indochina, and Algeria during the 1940s and 1950s (Arthur, 2009, p. 342); segregation and racism in the United States; and the slaughter of two world wars, including wide-​scale violations of even the rudimentary laws of war at the time (Roberts, 1995). These were followed by systematic repression and mass murder in the then Soviet Union (Medvedev, 1989), widespread killings and state-​induced starvation in China (Ashton et al., 1984, p. 624; Yang, 1996), and the Khmer Rouge’s brutal tactics in the “killing fields” of Cambodia, where the estimated range of 25–​40 percent of the population perished (Roberts, 1995). Other atrocity crimes occurred in Vietnam with the American use of napalm and indiscriminate killing by all sides (Falk, 1972; Greiner, 2010), among many others. In the face of these abuses, some states took steps to address them (Kiernan, 2003, pp. 586–​590). In reckoning with wide-​scale atrocities, it is simply impossible to bring all the perpetrators into a criminal justice process, and so other mechanisms or approaches began to emerge. Arguably, these approaches developed organically, in some cases relying on national experiences rather than criminal justice (Roberts, 1995). The Nuremberg Trials as

14  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). In particular, see Part II, Articles 6–​8. 15  However, social media and other communication tools have also been used to foment atrocity crimes and stir up hate, as has been the case in Rwanda and other countries (Singer and Brooking, 2016; Zeitzoff, 2017).

Transitional Justice in the 21st Century    587 well as other trials conducted by the Allies were a seismic event for accountability and were later accompanied by other non-​punitive measures that developed in the post–​World War II period, as attitudes and the political context changed substantially (Frei, 2002; Niven and Paver, 2010). Although the term “transitional justice” had yet to appear in academic parlance, transitional justice as a set of formalized processes began to emerge, particularly in Germany in the post-​war period and again after the fall of the Berlin Wall (Elster, 2004). These processes included important domestic trials, for example, Frankfurt (Auschwitz) (Pendas, 2013),16 extensive memorialization, opening of archives, revision of the curriculum, and awarding of reparations. Of great importance was German Chancellor Willy Brandt’s Kniefall in the Warsaw Ghetto, which had been “cleansed” of its Jewish inhabitants by the Nazis. By going to his knees, Brandt symbolically recognized and commemorated the murder of millions of Jews and other minorities by the Nazis. Brandt’s gesture represents an important form of apology and was seen as an acknowledgment of the crimes committed by the Nazi state, particularly with respect to its Jewish citizens and other minorities (Rauer, 2006).17 In the 1980s, further developments emerged, notably in Latin America. Of particular importance was Argentina’s Truth Commission report, Nunca Más, which, by “naming names” of perpetrators, including former high-​level officials and politicians, had a seismic effect on the country and became a nationwide bestseller (Hayner, 1994, pp. 614–​616; Sikkink and Booth Walling, 2006). Later, Chile and Uruguay also established truth commissions and implemented other transitional justice mechanisms (Lessa, 2013, pp. 131–​161). The much-​heralded South Africa Truth and Reconciliation Commission (TRC) was an important milestone as well, shining a light on the many violations of the state authorities, as well as providing other measures to address the legacy of Apartheid, some implemented and some not (Chapman and van der Merwe, 2008; Davis, 2016). The proceedings were telecast to the nation at large and exposed the long and bloody reign of the Apartheid regime, which was thoroughly discredited (Mamdani, 2002, p. 33–​34; Chapman and van der Merwe, 2008). While from a scholarly point of view the South African experience is an important, if somewhat flawed process, “in the popular mind” it is a paradigmatic example of transitional justice (Daly and Sarkin, 2010, p. 8).18 In the latter part of the 20th century, a much stronger understanding developed regarding certain vulnerable groups and the abuses that they suffer related to their gender and/​or age (Machel, 1996; Rehn and Johnson Sirleaf, 2002). There has been growing recognition

16 

Although the trial is considered controversial, its “significance came from the vast public attention it captured” (Pendas, 2006, pp. 288–​306). Further, “the Auschwitz Trial had a paradoxical result. On the one hand, it illuminated the crimes of Auschwitz for a public that was almost completely—​and often deliberately—​ignorant of them. The extensive press coverage forced Germans to confront Auschwitz. . . . On the other hand, the public also gained a skewed understanding of Auschwitz. . . . The limitations of the law obscured more than they revealed, by making the prosecution dependent on the same standards of illegality the Nazis themselves had used to investigate criminal activity in the camps. The reliance on the letter of the law legitimated the criminal Nazi state and set a standard for illegal behaviour in the 1960s Frankfurt courtroom that eerily echoed the laws of the Third Reich” (Wittman, 2012, pp. 271–​272). 17  For a detailed discussion on reparations and role of apologies see Chapter 30 by Stephanie Wolfe in this volume. 18  See also Chapter 28 by Jeremy Sarkin on amnesties and truth commissions in this volume.

588    David Tolbert and Marcela Prieto Rudolphy that these vulnerable groups seek their demands for justice addressed on their own terms (Sullivan, 1994; Rubio-​Marín and De Greiff, 2007). Thus, for example, the United Nations recognized the widespread sexual violence in conflict as deserving particular focus, leading to a number of protocols and the creation of both a high-​level representative on sexual violence and another on children and armed conflict (Sullivan, 1994).19 In this regard, countries such as Tunisia took steps to ensure the participation of women in both consultations on the direction of the process and as principals in the measures themselves, for example, the Chair of the Tunisian Truth and Dignity Commission (TDC) was a woman, as were a number of the commissioners (Warren et al., 2017).20 Considerable attention has also focused on the child soldier phenomenon, which raises questions on how to address children and young people who are both victims and perpetrators of atrocity crimes, as there have been in many countries, for example, Sierra Leone. There is a difficult question of agency, as young persons will be of varying degrees of maturity and subject to influence (Aptel and Ladisch, 2011). While some bright line or definitive tests have been developed around the age of child soldiers and their accountability—​ for example, the ICC lacks jurisdiction over individuals under the age of 18—​21many other issues are being wrestled with in terms of addressing their trauma and integrating them into their communities (Aptel and Ladisch, 2011).22 Given the ongoing spread of the child soldier phenomenon, this will be a continuing issue in the 21st century.

3.  Where Do We Stand: Challenges for Transitional Justice in the 21st Century In turning to the 21st century, the global context has changed drastically. Much has been written about the seemingly constant rise of populism, with the advent of, for example, Trump, Bolsonaro, Orban, Duterte, Erdoğan, and a range of “strongmen,” highlighting the related fragility of international law, international criminal law, and human rights law (Reydams, 2010; Alston, 2017). The current context is undoubtedly one of the challenges that advocates of human rights and transitional justice—​which in many ways has become a global project23—​must contend with in the 21st century (Teitel, 2005; Nagy, 2008). 19  UNSC Res 1888 (30 September 2009) UN Doc/​ RES/​1888; UNGA Res 51/​77 (20 February 1997) UN Doc/​A/​RES/​51/​77: “The Rights of the Child.” Available at: http://​www.un.org/​documents/​ga/​res/​51/​ ares51-​77.htm (Accessed: January 30, 2019). 20  International Center for Transitional Justice (n.d.) Tunisia. Available at: https://​www.ictj.org/​our-​ work/​regions-​and-​countries/​tunisia (Accessed: January 27, 2019). 21  Article 26 of the Rome Statute provides that the “Court shall not have jurisdiction over any person under the age of 18 at the time of the alleged commission of the crime.” 22  The New Humanitarian (IRIN News) (2011) Should Child Soldiers Be Prosecuted for their Crimes? Available at: http://​www.irinnews.org/​analysis/​2011/​10/​06/​should-​child-​soldiers-​be-​prosecuted-​their-​ crimes (Accessed: January 30, 2019). See also Chapter 15 by Myriam Denov and Anaïs Cadieux Vliet in this volume. 23 By “global project,” Nagy refers to “the fact that transitional justice has emerged as a body of customary international law and normative standards. I call it a ‘global’ project rather than an ‘international’ one in order to capture the three-​dimensional landscape of transitional justice (local,

Transitional Justice in the 21st Century    589 However, the developments in the last decades of the 20th century continue to be debated today and inevitably inform the discussion that follows, where we address the principal issues facing transitional justice. While there are many challenges, we focus on those that, in our view, are the most pressing for the field, some of which have just been foreshadowed. We begin with the question of transitional justice’s definition, goals, and effects (Section 3.1.), the relationship between transitional justice and criminal justice (Section 3.2.), and the place of victims within transitional justice (Section 3.3). We then discuss some challenges relating to the “check the box” approach (Section 3.4.), gender (Section 3.5.), socioeconomic rights and equality (Section 3.6.), and donors’ justice (Section 3.7.). These challenges come from what earlier approaches to transitional justice left unaddressed. As discussed earlier, the context in which the language of transitional justice arose—​the early 1990s—​played an important role in shaping transitional justice claims: it initially determined what was included in transitional justice, by defining its boundaries in relation to the practical dilemmas post-​authoritarian societies were facing (Leebaw, 2008, pp. 101–​102; Arthur, 2009, pp. 343, 347). Thus, some of the challenges in the current century continue to test the limits of the field.

3.1. Transitional justice: What is it “for” and does it work? What is transitional justice for? This is a hotly debated question, not because of disagreement about what the goals are but due to disagreement about the relationships between them and about what transitional justice is, its impact, and success. Widely shared transitional justice goals by scholars include preventing future atrocity crimes; achieving reconciliation; contributing to a successful transition; and rule of law, state, and peacebuilding. Less far-​reaching goals—​though ambitious nonetheless—​are providing victims with some form of redress, acknowledging the crimes, seeking truth, and achieving some form of accountability. The debate lies principally on the relationship among these goals. The first question is whether transitional justice goals are complementary or if they stand in tension with each other, as most transitional justice advocates seem to have thought at the beginning of the 1990s (Zalaquett, 1992; Van Zyl, 1999; Leebaw, 2008, pp. 97–​98). While some argue that the dilemmas have been overcome, Leebaw (2008) has suggested that they may have become harder to evaluate to the extent that the goals have been reconceptualized in apolitical terms (Daly and Sarkin, 2010). There is an air of paradox in the goals associated with transitional justice. There are conflicts between substantive and procedural justice, and between reconciliation and nation-​building. There is the challenge of achieving criminal accountability when violations national, global) and its location within broader processes of globalization. It is a ‘project’ by virtue of the fairly settled consensus—​a consensus that has largely moved past the initial debates of ‘peace versus justice’ and ‘truth versus justice’—​that there can be no lasting peace without some kind of accounting and that truth and justice are complementary approaches to dealing with the past. The question today is not whether something should be done after atrocity but how it should be done. And a professional body of international donors, practitioners and researchers assists or directs in figuring this out and implementing it” (Nagy, 2008, p. 276).

590    David Tolbert and Marcela Prieto Rudolphy have been committed by thousands of perpetrators and achieving reconciliation while simultaneously “opening up old wounds;” and promoting a transformative agenda that at the same time is meant not to imperil the transition (Leebaw, 2008; Buckley-​Zistel, 2015, p. 155). Although tensions may arise in practice, there is nothing in the goals that makes them incompatible: a complementary approach is sustainable and desirable when weaving different transitional justice mechanisms into a coherent web (Roht-​Arriaza, 2006; De Greiff, 2012). Moreover, the evidence seems to support complementary approaches: as Olsen, Payne, and Reiter (2010) have shown, specific combinations of mechanisms, rather than individual mechanisms alone, positively impact human rights and democracy. These varying goals have led scholars to view the field through different prisms. Even though some think that there are few theoretical attempts at conceptualizing transitional justice, a more accurate statement would be to say that there is no consensus on any conception of transitional justice (De Greiff, 2012, p. 32; Buckley-​Zistel, 2015, pp. 1–​2). Some think transitional justice is just a form of ordinary justice (Posner and Vermeule, 2003), while others emphasize the particularities of pre-​transitional states (Gray, 2006). Teitel (1997; 2003) has focused on the particularities of transitional justice and its relation between law and political transformation, while De Greiff (2012, p. 59) has argued that transitional justice is a “principled application of justice in distinct circumstances.” More recently, Colleen Murphy (2017) has provided a theoretical account of transitional justice and its demands, which contests the idea of transitional justice as a mere compromise between different familiar kinds of justice and underlines transitional justice’s special nature. Others emphasize restorative justice, which aims for reconciliation by seeking to re-​establish the relationships between victims and perpetrators and involving the wider community (Buckley-​Zistel, 2015, p. 158; Fourlas, 2015). Initially thought of as applicable only to lesser violations, some now argue it should extend to the most serious crimes (Braithwaite, 2002; McEvoy and Mallinder, 2012). Finally, there is the most recent transitional justice canon, which has been called the “fourth generation of transitional justice scholarship”: transitional justice as transformative justice (Balasco, 2018, p. 368).24 This idea is driven in large measure by Rama Mani’s work on reparative justice as further discussed in Section 3.5 (Mani, 2002; Balasco, 2018, p. 369). Thus, there is no consensus on any conception of transitional justice nor on the relationships among transitional justice’s goals. This makes the second question—​on which there is not much consensus either—​even more challenging: Does transitional justice deliver on what its advocates promise? Empirical research exists, both on the impact of transitional justice (Pham and Vinck, 2007; Thomas et al., 2008; van der Merwe et al., 2009; Thomas, et al., 2010; Pham et al., 2016) and of international criminal law (Bass, 2008, pp. 240–​241; Orentlicher, 2018). Nevertheless, various theoretical issues need to be grappled with so that transitional justice’s impact can be measured accurately. If we do not know what transitional justice is and what it is for, it is difficult to determine whether it works and what these processes can accomplish (Bell, 2009). Indeed, some of the difficulties in assessing the impact of transitional justice are due to the elusiveness of defining success and over which period

24  The “fourth generation of transitional justice” has also been employed to refer to the turn toward local or grassroots justice (Sharp, 2013).

Transitional Justice in the 21st Century    591 of time transitional justice’s impact should be measured. Is the rule of law and democratic backsliding in present-​day (post-​2015) Poland a failure of transitional justice or something else? There are additional methodological difficulties as well, such as the interactions among different transitional justice mechanisms operating simultaneously and their impact on the overall success of the process, and the significant variation of the same mechanisms across different societies (Sikkink and Booth Walling, 2007, p. 435; Kritz, 2009, p. 15). Other issues, besides the difficult question “Does transitional justice work?” also require empirical assessment. These include whether the threat of prosecution hinders or helps peace processes (Ginsburg and Shaffer, 2010, p. 224); the impacts of testifying and of reparations on victims’ well-​being; which mechanisms are better suited to make international and domestic crimes known to victims; which participation mechanisms work better for victims; what the “downstream consequences” of peace agreements are (Ní Aoláin and Brown, 2014, p. 130); which mechanisms make reconciliation between perpetrators and victims more likely; and the effectiveness of guarantees of non-​recurrence on victims but also on society generally (Mayer-​ Rieckh, 2017), among many others. Ultimately, it is unclear to what extent the value of the transitional justice project depends on its results (and on which ones). If it were proven that transitional justice does not prevent atrocity crimes, would we be less committed to the project? It is an open question, though perhaps reflecting along these lines may help distil what is essential to transitional justice, what are the outcomes that matter most, and which mechanisms we value for their own sake even when/​ if they do not have any impact.

3.2. Transitional justice and criminal justice A fundamental challenge for transitional justice results from the uneasy relationship between transitional justice and criminal justice. If we consider the Nuremberg Trials as the birth of transitional justice (Teitel, 2003),25 we could say that, since its origins, transitional justice has been deeply intertwined with criminal justice. However, as discussed earlier, the term “transitional justice” was coined in the mid-​1990s (Arthur, 2009, pp. 327–​329; Bell, 2009, p. 6). At the time, the relationship between transitional justice and criminal justice was principally a dilemmatic one, for in some cases offenders remained as active political or military actors, and criminal trials threatened the consolidation of the transition itself (Zalaquett, 1992; Arthur, 2009, pp. 322–​323). Hence, the first tension between criminal and transitional justice relates to the goals of the transitional justice project—​such as consolidating democracy or peace—​and criminal justice. This is the well-​worn “peace vs. justice” debate (or democracy vs. justice) (Sriram, 2004), which also dovetails with the discussion on whether there is a duty to prosecute offenders (McEvoy and Mallinder, 2012) even when prosecution can jeopardize the transition (Hayner, 2018). Though some think that this debate is over and that the consensus is that peace and justice are complementary, it seems that with the ICC as a permanent

25  However, as noted earlier, Jon Elster traces it back to Athens, in 411 BC and again in 404–​404 BC (Elster, 2004).

592    David Tolbert and Marcela Prieto Rudolphy institution, the debate is only beginning (Michel and Del Mar, 2014).26 There is now no escape from the practical dilemma of whether the threat of prosecutions will hinder an ongoing peace process, as can be seen in the Northern Uganda and Darfur cases, and thus, scholars and practitioners must take on this challenge (Rodman, 2009, pp. 111–​120; Oette, 2010; Freeman, 2011). Rodman (2009; 2014), for example, has suggested that the prosecutor of the ICC should consider both the political context and the impact of her actions on peace-​making when exercising her discretion, especially when insistence on prosecution may deter important actors from cooperating with peace negotiations. In this regard, the ICC statute does contain a provision that provides the Prosecutor discretion to forgo an investigation not “in the interests of justice.” While some thought that the Prosecutor might consider foregoing a prosecution due to ongoing negotiations, this provision has been interpreted narrowly, to wit: “there is a difference between the concepts of the interests of justice and the interests of peace and that the latter falls within the mandate of institutions other than the Office of the Prosecutor.”27 Thus, it is unlikely that the Prosecutor will utilize the “interests of justice provision” with respect to peace agreements. On the other hand, under the Rome Statute, the UN Security Council can defer a prosecution for up to one year (which can be renewed for additional one-​year periods by the Security Council) in accordance with Article 16. While there have been proposals to utilize Article 16, this step has not been activated thus far.28 In a controversial decision, a Pre-​Trial Chamber of the ICC applied a new standard in interpreting the “interests of justice.”29 It rejected the Prosecutor’s request to open an investigation of crimes committed in Afghanistan. The Pre-​Trial gave weight to factors such as the unlikelihood of cooperation by the relevant parties, changes in the “political landscape both in Afghanistan and in key states,” and the “complexity and volatility of the political climate still surrounding the Afghan scenario.”30 Thus, the Pre-​Trial Chamber essentially recast the “interests of justice” (Whiting, 2019). However, this decision was reversed on appeal, with the appeals decision holding that: the Prosecutor is authorised to commence an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.”31

26 

For a detailed discussion of international criminal justice, and the role of the ICC, see Chapter 26 by Nancy Combs in this volume. 27 International Criminal Court (ICC) (2007) Policy Paper on the Interests of Justice. Available at: https://​www.icc-​cpi.int/​nr/​rdonlyres/​772c95c9-​f54d-​4321-​bf09-​73422bb23528/​143640/​ iccotpinterestsofjustice.pdf (Accessed January 30, 2019). 28  However, Article 16 was raised in the context of the Darfur debates (Oette, 2010, p. 346). 29  Situation in the Islamic Republic of Afghanistan (Decision, Pre-​ Trial Chamber II), ICC-​02/​17 12 April 2019, para. 33–​35; 87–​96. 30  Situation in the Islamic Republic of Afghanistan (Decision, Pre-​ Trial Chamber II), ICC-​02/​17 12 April 2019, para. 94. 31  Situation in the Islamic Republic of Afghanistan (Decision, the Appeals Chamber), ICC-​02/​17 OA4 5 March 2020, para. 79.

Transitional Justice in the 21st Century    593 Thus, the “interest of justice” criterion appears to have returned to a very narrow construction, similar to the original interpretation of the Prosecutor. Related to the peace and justice debate is the question of amnesties, granted extensively in, for example, Northern Ireland and South Africa (McEvoy et al., 2015). However, with the establishment of the ICC there is a strong legal argument that amnesties are “off the table” for atrocity crimes (Freeman, 2011, pp. 50–​54; Michel and Del Mar, 2014, pp. 866–​872). Nonetheless, amnesties for other crimes are not prohibited by international law, and in some cases, such as under Protocol II of the Geneva Conventions, which covers non-​international armed conflicts, authorities are encouraged to grant amnesties to certain actors. This provision was utilized for some members of guerrilla groups in resolving the conflict in Colombia (Alto Comisionado Para la Paz, 2016).32 Broader amnesties have also been granted in other countries, including Uganda.33 If we look at the numbers, they tell an interesting story: since World War II, there have been some 420 amnesty processes in different countries. Of those, 66 occurred between 2001 and 2005 (Hamber, 2012, pp. 333–​334). Although the more accepted view of amnesties is that they are a form of impunity and likely to lead to more abuses, a controversial proposition emerges from these numbers: amnesties themselves can be a transitional justice mechanism (Pensky, 2008; Freeman, 2011, p. 19; Hamber, 2012, pp. 333–​334). Mark Freeman (2011), for example, argues for a broader use of amnesties, positing that, properly deployed, they are a key element in peace processes and in combatting violent extremism (see also Slye and Freeman, 2018). Some have also suggested that amnesties might be effective in curbing abuses when implemented in a credible way (Snyder and Vinjamuri, 2003/​2004, p. 6). Additionally, amnesties may be employed either as part of a restorative justice framework, that is, as part of a process aimed at encouraging previous offenders to offer truth in return for non-​prosecution or as part of a process of reconciliation between previous combatants and their community (McEvoy and Mallinder, 2012). This was the case in South Africa, where the TRC utilized amnesties in a number of cases “in exchange for” truthful testimony about crimes and abuses committed.34 Ultimately, this process proved controversial, as noted earlier (Stanley, 2001). Nonetheless, the question of amnesties is one that no doubt will continue well into the 21st century, and one that is worth exploring empirically and theoretically. In this century, amnesties face a very important challenge: they are no longer within any individual state’s control. With the rise of international criminal law and the principle of universal jurisdiction and the increasingly important role of regional courts, it is uncertain whether amnesties adopted at the domestic level will be upheld by other actors in the global arena (Freeman, 2011, pp. 3, 28–​29).35 At least in the Americas, the answer seems to be negative

32 

Alto Comisionado Para la Paz (2016) Summary of Colombia’s Agreement to End Conflict and Build Peace. Available at: http://​www.altocomisionadoparalapaz.gov.co/​herramientas/​Documents/​summary-​ of-​colombias-​peace-​agreement.pdf (Accessed: January 30, 2019). 33  Uganda Legal Information Institute. (2000) Amnesty Act. Available at: https://​ulii.org/​node/​23788 (Accessed: January 30, 2019). 34  Nevertheless, the TRC failed in a number of important respects (Stanley, 2001). 35  Freeman (2011) refers to this challenge as the potential “undoing of amnesties.”

594    David Tolbert and Marcela Prieto Rudolphy (Binder, 2012).36 Additionally, except where an amnesty falls within the confines of international law as in Colombia, it is unlikely that the ICC Prosecutor or the Court will defer to national reconciliation programs that involve amnesties (Robinson, 2003, pp. 482–​483). Another aspect in which the relationship between transitional and criminal justice is troubled is in the emphasis on criminal justice. Scholars and practitioners alike have rightly complained about the disproportionate attention that criminal justice and, in particular, international criminal law, have received over other transitional justice mechanisms (Mégret, 2014, p. 43). This focus is troubling: while many practitioners and advocates for transitional justice believe it is important to bring those most responsible for atrocity crimes to justice, the limitations of criminal justice are clear. These tensions come into even sharper focus with the establishment of the ICC. The first obvious difficulty is that the sheer number of crimes and perpetrators is beyond the capacity of any judicial system. For example, as of 2005, it was estimated that bringing all the remaining accused in Rwanda—​10,000 already had been through some type of criminal justice process—​to justice would take 80 years (Schabas, 2005).37 In the former Yugoslavia, the ICTY tried 121 alleged perpetrators out of a pool of at least 10,000 persons who committed atrocity crimes in Bosnia-​Herzegovina alone.38 One practice that developed to address this issue was limiting prosecutions to the perpetrators who committed the most serious crimes, which has various formulations but relies on the level of the perpetrator in the political or military structure who committed the crimes as well as the number of victims (and in some instances, the heinousness of the crimes) (Nizich, 2001). This was certainly the case of the ICTY and the ICTR and was followed by the ICC as well as domestic justice efforts, for example, Colombia (Tolbert, 2014). As a result, criminal prosecutions—​domestic or international—​are generally limited to a few senior figures.39 Another limitation of criminal justice comes from the nature of the trial itself. With its many formalities and unclimactic dynamics, as well as its focus on the individual, it has been criticized by many for being reductive and unable to capture in any meaningful way the context of mass atrocity—​or “criminal normality”—​in which atrocity crimes are usually committed (Koskenniemi, 2002, pp. 12–​14; Drumbl, 2007; Anderson, 2009, pp. 336–​337). A second kind of “reductivist” charge goes further: it is not just that the crimes are judged individually and in abstraction from the context of mass atrocity. It is also that the material circumstances in which these crimes are rooted; the context of colonialism (Gevers,

36 The Inter-​ American Court of Human Rights, for example, has been consistently opposed to amnesties. See Almonacid-​Arellano et al. v. Chile (Judgment) (26-​09-​2006) and Gelman v. Uruguay (Judgment) (24-​02-​2011), Barrios Alto v. Peru (Judgment) (14-​03-​2001). In Gelman v. Uruguay, the Court declared that Uruguay’s amnesty law, which had been passed democratically and later reaffirmed two times by popular referendum, ought to be annulled. On this, see Gargarella (2015). 37 Straus (2006) estimates that around 200,000 individuals were perpetrators in the Rwandan Genocide. 38  There were 161 individuals indicted, but only 121 were tried (the remainder were transferred to other courts, died during the proceedings, etc.). ICTY (n.d.) Key Figures of the Cases. Available at: http://​www.icty.org/​en/​cases/​key-​figures-​cases (Accessed: January 30, 2019). Many more were tried in national courts but still fell far short of the estimated perpetrators. 39  There are exceptions, however, for instance the prosecution of “rape camps” in Bosnia Herzegovina. See, ICTY (n.d.) Landmark Cases. Available at: http://​www.icty.org/​en/​features/​crimes-​sexual-​violence/​ landmark-​cases (Accessed: January 30, 2019).

Transitional Justice in the 21st Century    595 2014); the systemic violence of the contemporary social order (Krever, 2014, pp. 130–​131), and “forms of structural or slow violence” as well as gender hierarchies (Nesiah, 2006a, pp. 21–​22) which may have contributed to the commission of the offenses, are left unaccounted for (Burgis-​Kasthala, 2016, p. 936; Nesiah, 2017, p. 98). These “reductivist” charges are compounded by the selectivity of the criminal process (Gevers, 2014, p. 235). The problem is not only the vast number of crimes that are left unpunished, but also the types of violence excluded from transitional justice. In this regard, the failure to address colonial crimes,40 colonialism’s legacies, and neo-​colonial forms of governance in the Global South—​which are related not just to criminality but also to grave material inequality—​are particularly salient (Arthur, 2009, p. 342; Balint et al., 2014, p. 196; Burgis-​Kasthala, 2016, p. 935). Third, some worry about the trial becoming a “show trial” or being perceived as “victor’s justice,” being unable to escape politics, or serving as an instrument to mask power and politics (Koskenniemi, 2002, p. 1; Simpson, 2007; Bass, 2008; Krever, 2014). Nevertheless, the issue of “victor’s justice,” which raised serious questions in Nuremberg and Tokyo, has been largely addressed by the establishment of a permanent international criminal court. Yet, the failure of the United States, China, and Russia to join the ICC and the fact that as UN Security Council members they can vote to refer other states to the Court, has led to criticism for lack of universalism. The ICC has been called “an African court,” meting out punishment against less powerful states (Bass, 2008, p. 233). So even if not victor’s justice as traditionally understood, some see it as justice of the Great Powers against the powerless and as instrumental in perpetuating the image of Africa as a “site of political savagery” (Bloxham, 2010, p. 630; Mégret, 2014, pp. 35–​36). The recent prosecutions at the ICC do little to address these worries, though some of the criticisms are overblown and politicized themselves; the countries that have complained the loudest are states that have ratified the Rome Statute, and the first three cases were referred by the affected states themselves (Bloxham and Pendas, 2010, pp. 630–​631; Schwöbel-​Patel, 2016; Lugano, 2017, pp. 10–​11, 26). Nevertheless, the backlash in Africa has made the Court appear ineffective and politically weak. Turning to the question of “show trials,” Lawrence Douglas (2005) posits that the term masks an important educative purpose of trials. He examined the Eichmann trial, arguing that this, and other trials of Nazi leaders, were “show trials” in the broadest sense: they aimed to do justice both to the defendants and to the history and memory of the Holocaust (Douglas, 2005, pp. 97–​182). While he admits flaws in these trials, he sees them as an attempt to reconcile the interests of justice and “pedagogy” (Douglas, 2005, pp. 2–​3), defending them as imaginative responses to extreme crimes. In line with Douglas’ view, we should not exaggerate the weight of the “show trial” objection. Although atrocity crimes test “the plasticity of the trial form,” it is worth remembering that there are “good” and “bad” show trials (Douglas, 2005, p. 3). There is a significant difference between a trial that aims to preserve the integrity of the justice system and is committed to due process (even if the nature of the crimes puts pressure on the trial form) and a true “show trial” which is reminiscent

40  Balint et al. (2014, p. 196) note that “the extensive and enduring harms caused by settler colonial practices and policies in countries such as Australia, New Zealand, Canada and the US have not constituted the traditional focus of transitional justice discourse and practice.”

596    David Tolbert and Marcela Prieto Rudolphy of Stalinist fraud and miscarriage of justice (Shklar, 1986, pp. 144–​145; Douglas, 2005, p. 3). And, certainly, a trial constitutes moral progress from summarily executing those deemed responsible, as was entertained by the British after World War II (Douglas, 2005, p. 111). Finally, as a tool of transitional justice, there are doubts about the goals and effectiveness of criminal punishment. Some have noted that no punishment could ever be proportionate to the nature of the crimes (Gevers, 2014, p. 235). There is no consensus on the justification and goals of punishment, which vary among deterrence, retribution, rehabilitation and incapacitation, moral pedagogy, didactic legality, and an expressive account (Douglas, 2005; Sloane, 2007; Bloxham and Pendas, 2010, p. 618; Gevers, 2014, p. 234). Ultimately, underlying all these critiques, there is the tension between the “ordinary” criminal approach and the extraordinary nature of the crimes themselves, as emphasized by Arendt (1973). Moreover, criminal trials by themselves are inadequate to fully address the injuries of the victims. In light of this, we would argue that although criminal justice has an important role to play and is a key element of transitional justice,41 the limitations of criminal justice are clear, and other mechanisms are essential.

3.3. Transitional justice and victims That victims should be at the heart of the process is a generally accepted tenet of transitional justice. Ideally, the process should consider victims’ interests and give them a voice in the design of transitional justice mechanisms. Yet, it must be acknowledged that social movements and victims’ groups too often remain on the margins of transitional justice scholarship, discourse, and practice (Gready and Robins, 2017, p. 958). Within the international criminal justice process, the place of victims has only recently been emphasized. Previously, the Nuremberg and Tokyo Tribunals, as well as the tribunals for former Yugoslavia, Rwanda, and the Special Court for Sierra Leone, adopted more common law-​oriented approaches which limited victims’ participation to appear primarily as witnesses (Ferstman, 2010, p. 407). This has changed with the ICC’s statute providing for a more victim-​centered procedure and for the possibility of reparations and the establishment of a Victims Trust Fund (Ferstman, 2010, p. 407). Yet, these advances cause some to worry that strengthening victims’ role in criminal proceedings may harm the rights of the defense, while others are troubled by the practical difficulties posed by their involvement (Ferstman, 2010, p. 407). However, the role victims should play in transitional justice processes goes beyond the confines of the criminal trial. The underlying idea is that we should be wary of transitional justice for the victims when it is transitional justice without the victims: this dynamic brings continuity to their previous marginalization. As discussed later, we think that one of the main challenges of transitional justice in the 21st century is moving away from the “check the box” approach. Transitional justice mechanisms should be designed and implemented with the contribution and input of victims and those affected: what is called a “grassroots approach” to

41 International Center for Transitional Justice (n.d.) Criminal Justice. Available at: https://​ www.ictj.org/​our-​work/​transitional-​justice-​issues/​criminal-​justice (Accessed: January 30, 2019).

Transitional Justice in the 21st Century    597 transitional justice (Lundy and McGovern, 2008). The shift to restorative justice is one way in which this can be done, particularly in promoting local mechanisms, which have found expression in the Gacaca Tribunals in Rwanda; Mato Oput in the Acholi region of Northern Uganda; and similar approaches in Timor-​Leste, Sierra Leone, and Guatemala (Nouwen and Werner, 2014; Buckley-​Zistel, 2015, p. 155). Even if widely shared among scholars and practitioners, there is a danger of the idea of a victim-​centered approach to transitional justice becoming a mere platitude (McAuliffe, 2017, pp. 231–​232). A major challenge is to come up not with a theoretical argument in defense of victim-​centered approaches, but with ways of putting the theory into practice while being responsive to different social circumstances. The initial challenge is determining what victims want. Victims’ wishes and goals vary significantly across different countries,42 cultural differences, age, gender, over time, and among victims themselves (McKay, 2013, p. 924). Additionally, different contexts pose different challenges: sometimes there will be an enormous number of perpetrators, for example, in Rwanda, and some individuals will be both victims and perpetrators (e.g., child soldiers). A second challenge is to develop a rigorous conceptualization of civil society that does not equate it with non-​governmental organizations and does not exclude nor marginalizes victims’ groups and non-​governmental institutions (Nyseth-​Brehm and Golden, 2017; Gready and Robins, 2017).43 Finally, the tension that some think is rising between the preferences of the international community and the preferences of victims who may favor mechanisms that have little to do with the liberal international ones is also worth exploring (Goldstone et al., 2007; Moyn, 2016, p. 87). For example, transitional justice initiatives that fail to prosecute those culpable due to a conscious choice of the domestic society would be in tension with a state’s duty to prosecute, and it is unlikely that forms of accountability different from the criminal trial would be enough, unless they worked within the framework of international law (e.g., Colombia) (McAuliffe, 2017, pp. 231–​232). These concerns acquire renewed urgency when we consider societies where the transitional processes have been administered and sometimes also triggered by outside actors—​ for example, UN peacekeeping troops, international NGOs, the EU, U.S. troops—​ as has happened in East Timor, Sierra Leone, Afghanistan, and Iraq (Brooks, 2003). These situations will present new challenges for transitional justice, especially concerning the place of victims in the transition.

42 

In post-​authoritarian regimes, like Chile and Argentina, accountability seemed key to the victims. Yet, some think that this doesn’t hold in post-​conflict situations: here, it has been suggested that the key concern of people on the ground is access to material goods. See Vinjamuri’s remarks in Goldstone et al., (2007). Other studies suggest otherwise (Bass, 2008, p. 239). 43  The Catholic Church, for example, played an important role in Latin America and Eastern Europe in transitional justice processes. On the role of religion and religious organizations in transitional justice (Philpott, 2007).

598    David Tolbert and Marcela Prieto Rudolphy

3.4. Transitional justice and the “check the box” approach As transitional justice has evolved into a field, there have been normative developments that have both defined the term and its deployment. Perhaps the most significant development in this regard was the UN Secretary-​General’s Report on the Rule of Law and Transitional Justice (the “Report”),44 which defined transitional justice primarily around certain mechanisms: The notion of “transitional justice” discussed in the present report comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-​scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-​judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-​seeking, institutional reform, vetting and dismissals, or a combination thereof. (emphasis added).

The Report, issued in 2004, reflected the prominent developments of the time, for example, the South African Truth and Reconciliation Commission and the ad hoc Tribunals. It is noteworthy that the Report focused on the “rule of law” rather than other issues, such as reckoning with the past and reconciliation, and that it failed to emphasize sufficiently the role of affected communities in these processes. Despite these shortcomings, the Report helped solidify and define transitional justice as a field. In some ways, it set its parameters in what the Report itself refers to as the “four pillars” of transitional justice: truth commissions and memorialization, criminal prosecutions, reparations, and guarantees of non-​recurrence.45 At the same time, there is a tendency for this approach to contribute to transitional justice becoming a kind of template utilized in the aftermath of violent conflicts: Transitional justice efforts are often criticized as being understood and implemented as a template or a toolkit—​that is, a narrow set of measures to be applied uniformly wherever widespread human rights violations have occurred. (Duthie and Seils, 2017, p. 9)46

Thus, an implicit hypothesis has emerged in some quarters that if these measures are implemented and sequenced properly, progress is likely, if not inevitable, and it appears that some processes have applied the “four pillars” in a mechanistic manner. South Sudan is perhaps the more recent example, as an internationally facilitated peace agreement provided for a hybrid court when there was no capacity to create or staff such a court in the country.47 44  UNSC “The Rule of Law and Transitional Justice in Conflict and post-​conflict Societies: Report of the Secretary-​General” (23 August 2004) UN Doc S/​2004/​616. Available at https://​www.un.org/​ ruleoflaw/​files/​2004%20report.pdf 45  Pablo de Greiff (2012, p. 31) writes that the Report reflects a “growing common sense about [the notion’s] general character.” On reparations (de Greiff, 2006); on truth commissions (Hayner, 2010). 46  Herman et al. (2013) express the same concern. 47 “Unanimous interviews indicate that there is no current or near-​ term capacity in the [South Sudan] national justice system for accountability proceedings concerning atrocity crimes involving relatively major political or military figures. Multiple interlocutors identified the same three basic factors: (1) lack of competence to carry out such trials; (2) lack of the necessary independence from the Government; and (3) lack of public trust. South Sudan’s justice system, which has long been

Transitional Justice in the 21st Century    599 Considerable time was spent on establishing a court that is unlikely to “get off the ground,” much less have any impact (Kumalo and Lucey, 2017; Babiker, 2018).48 Other processes have failed to fully understand or consider the political context. For example, following the post-​election violence in Kenya, a peace agreement was agreed, providing a range of transitional justice measures, including a specialized court, reforms, a truth commission, and reparations.49 The Kenyan process has had a number of setbacks, including the dropping of ICC cases largely due to witness intimidation50 and deep issues of political interference with the Truth, Justice and Reconciliation Commission (TJRC), as documented by international TJRC Commissioner Ron Slye (2018). While the problems suffered in these cases are attributable to many factors, they represented very ambitious processes arguably linked to the kind of “standard menu” or “check the box” approach employed in creating the measures in the first place.51 This “check the box” approach appears to arise particularly when the international community takes the lead and defines the processes in peace agreements, when the voice of the victims may be less likely to be heard and/​or drowned out by international experts. Interestingly, this tendency toward a formulaic approach is hardly limited to the transitional justice field, and Thomas Carothers (1999) makes a similar observation regarding rule of law assistance.

underdeveloped, has ground to a halt in the wake of the current conflict.” Rule of Law Initiative (2014). Assessment of Justice, Accountability and Reconciliation Measures in South Sudan. Available at: https://​ www.americanbar.org/​content/​dam/​aba/​directories/​roli/​sudan/​aba_​roli_​sudan_​assessment_​final_​ report_​0614.authcheckdam.pdf (Accessed: January 30, 2019), pp. 6–​9 (footnotes omitted). 48  Human Rights Watch (2017) South Sudan: Stop Delays on Hybrid Court: Four Years into Conflict, Rampant Abuse. Available at: https://​www.hrw.org/​news/​2017/​12/​14/​south-​sudan-​stop-​delays-​hybrid-​ court (Accessed: January 30, 2019). 49  See: “Acting Together for Kenya: Agreement on the Principles of Partnership of the Coalition Government.” (2008) Available at: https://​peacemaker.un.org/​sites/​peacemaker.un.org/​files/​KE_​ 080228_ ​ Acting%20Together%20for%20Kenya-​ Agreement%20on%20the%20Principles%20of%20 Partnership%20of%20the%20Coalition%20Government.pdf (Accessed: January 30, 2019); “Kenya National Dialogue and Reconciliation: Statement of Principles on Long-​term Issues and Solutions.” (2008) Available at: https://​peacemaker.un.org/​sites/​peacemaker.un.org/​files/​KE_​080523_​Kenya%20 National%20Dialogue%20and%20Reconciliation%2C%20Statement%20of%20Principles%20on%20 Long-​term%20Issues%20and%20Solutions.pdf (Accessed: January 30, 2019); “Kenyan National Dialogue and Reconciliation: Truth, Justice, and Reconciliation Commission.” (2008) Available at: https://​ peacemaker.un.org/​sites/​peacemaker.un.org/​files/​KE_​080304_​Kenyan%20National%20Dialogue%20 and%20Reconciliation- ​ Truth%2C%20Justice%20and%20Reconciliation%20Commission.pdf (Accessed: January 30, 2019); “Kenyan National Dialogue and Reconciliation: Commission of Inquiry on Post-​Election Violence.” (2008) Available at: https://​www.hdcentre.org/​wp-​content/​uploads/​2016/​06/​ 6-​Commission-​of-​Inquiry-​of-​Post-​Election-​Violence-​Kenya-​National-​Dialogue-​and-​Reconciliation-​4-​ March-​2008.pdf (Accessed: January 30, 2019). 50  Open Society Initiative (2016) Witness Interference in Cases Before the International Criminal Court. Available at: https://​www.opensocietyfoundations.org/​sites/​default/​files/​factsheet-​icc-​witness-​ interference-​20161116.pdf (Accessed: February 2, 2019). 51  International Center for Transitional Justice (2014). Can Truth Commissions Strengthen Peace Processes? Available at: https://​www.ictj.org/​our-​work/​transitional-​justice-​issues/​criminal-​justice (Accessed: January 30, 2019).

600    David Tolbert and Marcela Prieto Rudolphy Yet, such an approach loses sight of the fundamental importance of the national context. As noted by Mutua (2015, p. 5): Dogmatic universality is a drawback to an imaginative understanding of transitional justice. In matters of social transformation, close attention must be paid to context and location. That is why it is intellectually indefensible to create a transitional justice blueprint ready for export.

Moreover, there is evidence that transitional justice processes are more effective for affected communities and long-​term stability when context is taken into account in the designing phase (Douglas, 2005; Duthie and Seils, 2017). The inclusion of victims and affected communities in consultations appears to improve the understanding of the national context by all concerned (Duthie and Seils, 2017). The Kofi Annan Foundation and ICTJ have made an important contribution in this regard, by pointing out the importance of assessing certain factors when thinking about the establishment of a truth commission within a particular peace agreement.52 The challenge in this century is to break away from the confines of the Report—​and orthodoxy generally—​and pay closer attention to national context and victims.

3.5. Transitional justice and gender Absent from early conversations on transitional justice was a gender perspective (MacKinnon, 2013, p. 117; Mégret, 2014, p. 36). This is particularly troubling given that, in many places, women have been the driving force of transitional justice initiatives from civil society. These include the Grandmothers of the Plaza de Mayo in Argentina, the Mothers of Srebrenica, and victims’ groups in Chile, El Salvador, and Guatemala, to name a few. Women’s presence in transitional justice has been traditionally reduced to their participation as witnesses to their own victimization or to the victimization of their loved ones (Nesiah, 2006a, p. 804). Otherwise, their experiences of conflict and their demands have been largely excluded from transitional justice projects (Bell and O’Rourke, 2007, p. 23). Moreover, the process by which transitional justice mechanisms have been negotiated and produced have been almost entirely elite and male-​dominated (Bell and O’Rourke, 2007, p. 25; Arthur, 2009, p. 347). It is unsurprising that, as a result, transitional justice mechanisms themselves did not include women’s concerns for far too long. Nevertheless, already in the 1990s the major focus of feminist demands on transitional justice was on the need to end impunity for violence against women (Bell and O’Rourke, 2007, p. 26). Among the advancements of this time was the inclusion of rape as a war crime, a crime against humanity, and a form of genocide in the jurisprudence of the ICTY and ICTR (Bell and O’Rourke, 2007, p. 27).53 Similar gains have been made more recently in other areas: 52  International Center for Transitional Justice (2014) Can Truth Commissions Strengthen Peace Processes? Available at: https://​www.ictj.org/​our-​work/​transitional-​justice-​issues/​criminal-​justice (Accessed: January 30, 2019). 53  Also see the landmark decisions of the ICTY in Mucic et al., in which it considered rape to be a form of torture, and Furundzija, where the Trial Chamber stated that rape can be prosecuted as a grave breach of the Geneva Conventions and that it may be used as a tool of genocide; and Kunarac et al., where the court dealt with sexual enslavement (International Criminal Tribunal for the former Yugoslavia. Available at http://​www.icty.org/​en/​features/​crimes-​sexual-​violence/​landmark-​cases. Accessed: April 1,

Transitional Justice in the 21st Century    601 truth commissions have acknowledged gender or sexual violence as part of their mandates (Bell and O’Rourke, 2007, p. 28; Fischer, 2011, p. 412). In particular, the Colombian peace process included a sub-​commission on gender that integrated both women and LGBTI organizations (Céspedes-​Báez, 2017; Langlois, 2017, pp. 165–​166). In Tunisia, a similar approach was adopted with a Gender Sub-​commission as part of the TDC. Moreover, the UNSC has issued several resolutions on gender and the aftermath of violent conflict,54 and the Office of the Prosecutor of the ICC as well as the UN High Commissioner for Human Rights have embraced expansive notions of gender-​based violence and crimes.55 However, some of these advances have been criticized from feminist perspectives (Bell and O’Rourke, 2007, p. 33; Mégret, 2014, p. 37).56 Importantly, most of the work on sexual violence within transitional justice has focused on women, and as a result, violence against gender minorities remains largely unexamined both in practice and in scholarship (Bueno-​Hansen, 2017, p. 127). A more expansive conception of gender-​based violence is needed, which includes violence against women but also some forms of gendered violence against males and persons perceived as not conforming to gender stereotypes—​such as homophobic and transphobic violence—​without at the same time obscuring the violence committed against women (Kapur and Muddell, 2016; Langlois, 2017, p. 150). Despite these important critiques, the establishment of sexual violence as an international crime and its prosecution in international courts are significant breakthroughs, particularly in a world where sexual violence is pervasive in the everyday lives of women and rules on sexual violence are often not enforced (MacKinnon, 2013). Nonetheless, perhaps the most important challenge lies in incorporating women in the decision-​making process. Some advances have been made in this regard, as can be seen in recent peace agreements (Bell and O’Rourke, 2007, p. 32). However, it is important to emphasize that gender balance alone is an insufficient indicator of whether transitional justice mechanisms will properly address gender-​related violence and if it will translate into effective participation and influence over the process (Nesiah, 2006b, p. 10). Women may encounter resistance, marginalization, or exclusion in these very same mechanisms (Ní Aoláin and Brown, 2014, p. 134). Although training on gender sensitivity may be a partial solution to some of these issues, the dynamics inside transitional justice mechanisms might be influenced by the pre-​transition power and gender structures (Nesiah, 2006b, p. 12; Ní Aoláin and Brown, 2014, p. 135; McAuliffe, 2017, p. 262). There are ways to ameliorate 2019).; as well as the ICTR Akayesu case (Prosecutor v. Akayesu (Judgment) No. ICTR-​96-​4-​T (September 2, 1998)), where it concluded that rape constitutes genocide. See also Chapter 27 by Kim Thuy Seelinger and Elisabeth Wood in this volume. 54  The principal one is UNSC Res 1325 (31 October 2000), UN Doc S/​RES/​1325. Although it has been criticized for conflating gender with women (Langlois, 2017, pp. 155–​160). 55 UNGA “Analytical Study Focusing on Gender-​ Based and Sexual Violence in Relation to Transitional Justice: Report of the Office of the United Nations High Commissioner for Human Rights” (30 June 2014) UN Doc A/​HRC/​27/​21; Office of the Prosecutor, ICC (2014) Policy Paper on Sexual and Gender-​Based Crimes. Available at: https://​www.icc-​cpi.int/​iccdocs/​otp/​OTP-​Policy-​Paper-​on-​Sexual-​ and-​Gender-​Based-​Crimes-​-​June-​2014.pdf (Accessed: October 9, 2019). 56  Campbell (2007), for instance, has analyzed how international legal rules and practices on the prosecution of sexual violence that took place during armed conflict can instantiate and reiterate, rather than transform, existing hierarchical norms of gender. See also Bueno-​Hansen (2018). Kapur (2002) has examined how the international women’s rights movement has reinforced the image of the woman as a victim, thereby reinforcing gender and cultural essentialism.

602    David Tolbert and Marcela Prieto Rudolphy the replication of these structures in transitional justice mechanisms, but the difficulties associated with this are related to transitional justice’s limited ability to deal with some background societal conditions, such as gender discrimination, that sometimes might shape the transition itself (Ní Aoláin and Brown, 2014, p. 135).

3.6. Transitional justice as transformative justice: Socioeconomic rights and equality The fissure between civil and political rights (CPR) and socioeconomic rights and equality (ESC) has a long history, perhaps best illustrated by the decision to divide the key normative document(s) on human rights into two separate Covenants—​one devoted to ESC rights and the other to CPR (ICESCR; ICCPR). Indeed, the United States and some of its allies have not ratified the ICESCR Covenant,57 which relates to these countries’ adoption of neo-​ liberal economic agendas during the post-​war period. However, in other countries, both in Latin America and in Europe, ESC rights not only became law, but have also been enforced in courts (Rodríguez-Garavito, 2011).58 In the 21st century, criticisms have been made, most prominently by Samuel Moyn, against the “human rights movement” for failing to take ESC rights and, more generally, equality seriously. Moyn argues that the human rights movement has failed to address issues of material inequality, only giving haphazard rhetorical support to economic subsistence efforts (Moyn, 2018.) In some of his writings, Moyn (2018) goes further, implying that the human rights movement is linked to the rise of what he calls the “neo-​liberal maelstrom.” While Moyn’s claims of a link between neo-​liberal economics and the human rights movement might be too strong (De Búrca, 2018), we agree that there has been a failure to address economic rights. This is glaringly obvious in the context of the United States, particularly compared to some countries in Latin America and Europe. Philip Alston (2017, p. 269), who has served as the UN Special Rapporteur on ESC rights, has criticized Moyn on his overall view on the human rights movement, but he agrees that “mainstream human rights advocacy addresses economic rights in a tokenistic manner at best, and the issue of inequality almost not at all” and has called for a renewed focus in the human rights agenda. Moyn (2018, p. 186) focuses on human rights and gives little attention to transitional justice.59 However, the most recent candidate for the transitional justice canon—​transitional 57  While Jimmy Carter signed the ICESCR in 1977, the United States has yet to ratify the Covenant. For more in-​depth understanding of the United States’ position on economic, social, and cultural rights, see generally William Mozdzierz, Head of the U.S. Delegation to Geneva: US Mission to International Organizations in Geneva (2017) U.S. Explanation of Position on the Realization of Economic, Social and Cultural Rights. Available at: https://​geneva.usmission.gov/​2017/​03/​23/​u-​s-​explanation-​of-​position-​on-​ the-​realization-​of-​economic-​social-​and-​cultural-​rights/​ (Accessed: January 28, 2019). 58 ECSR-​ Net (2013) How Do We Make Economic, Social and Cultural Rights a Reality in Latin America? Available at https://​www.escr-​net.org/​news/​2013/​how-​do-​we-​make-​economic-​social-​and-​ cultural-​rights-​reality-​latin-​america (stating that “the judicial enforcement of [economic, social and cultural] rights has advanced considerably in Latin America”) (Accessed: October 9, 2019). 59  Moyn (2018, p. 186) briefly mentions transitional justice: “An entire field of ‘transitional justice’ theorizing pathways to democracy was founded that, with rare exceptions, disregarded or marginalized distributive questions and paid no mind even as the conditions for inequality were laid.”

Transitional Justice in the 21st Century    603 justice as transformative justice—​focuses precisely on how transitional justice has historically excluded issues of economic inequality, structural violence, redistribution, development, and what can be done to change this (Miller, 2008). The idea of transformative justice is just developing. A plethora of definitions have been offered, but the common ground seems to be the goal of achieving societal transformation by utilizing transitional justice tools in order to account for long-​term structural injustices, and in particular, socioeconomic injustices and inequality (Lambourne, 2013, p. 20; Gready and Robins, 2014, p. 340; Moyo, 2014; Evans, 2015, p. 5; Balasco, 2018, p. 368). It is unclear whether transformative justice aims to replace transitional justice by providing a new approach to achieving justice for violations rooted in structural causes (Evans, 2015; Evans, 2018), or whether it aims to work within the field of transitional justice (Lambourne, 2013; Gready and Robins, 2014; Balasco, 2018, p. 368). Most of the proponents of transformative justice believe that reparations have the greatest potential to achieve transformation, by expanding transitional justice beyond corrective justice and encompassing distributive justice and thus transform the circumstances of poor victims (Mani, 2008, p. 256; Uprimny Yepes, 2009, p. 637; Lambourne, 2013, p. 29; Gready and Robins, 2014, p. 347). The potential of truth commissions to acknowledge and investigate structural inequalities has also been noted (Mani, 2008, p. 256). Yet, transformative justice has been criticized for lacking a clear definition or a theory of change and for its uncertain relationship to transitional justice (Balasco, 2018, p. 370). Other criticisms focus on its lack of attention to the different types of post-​war states and their circumstances, and the lack of an account of how the theory can be put into practice (McAuliffe, 2017, pp. 21, 34). The idea of transformative justice also brings new tensions to the goals of transitional justice. This issue requires careful exploration: particularly due to the scarcity of resources, achieving the goals of transitional justice will often come at the detriment of the goals of transformative justice and vice versa (Balasco, 2018, p. 371). It is not clear where the priority should be. We agree that inequality and the structural causes of violence need urgent attention and action, and that little attention has been paid to them by the human rights movement—​ particularly in neoliberal economies—​and in transitional justice processes where the context clearly demanded it. As noted by Miller (2008, pp. 280–​281):60 [A]‌partheid in South Africa after the TRC can become a story about racism or about specific, individual rights violations rather than about long-​term, systemic abuses born of a colonial project with economic objectives. . . . The genocide in Rwanda can become a story of historic ethnic hatred between Hutu and Tutsi rather than a narrative of decades-​long resource inequity, unequal land distribution and colonial constructions.

However, although inequality and poverty are often linked to victimization, not all atrocity crimes are directly or primarily related to inequality or ESC rights and thus these issues will not always fall within the ambit of transitional justice and will have to be addressed on a broader plane. Moreover, poverty and social injustice should be alleviated and hopefully

60  Miller, however, acknowledges that both South Africa and Rwanda have addressed or engaged with questions of land and resource distribution in realms other than transitional justice mechanisms and institutions. See also (Buckley-​Zistel, 2015).

604    David Tolbert and Marcela Prieto Rudolphy eliminated across society as a whole. The transformative approach to transitional justice has the danger of becoming social justice for victims while excluding the rest of society. This is a troublesome implication, though not a necessary consequence of the transformative justice project.61 We would also argue that there is an important difference between finding ways to address ESC rights and inequality within transitional justice projects (when pertinent) and trying to achieve societal transformation through them. Although social justice is a worthy goal to pursue, and some transitional justice mechanisms may be useful in advancing it, there is limited empirical evidence to support this proposition. Moreover, not every goal worth pursuing is, or in any case should be, pursued through the transitional justice project. Other institutions/​processes, such as taxation, for instance, may be more adept at accomplishing this goal, or different political systems, e.g., social democracy, may more broadly address these issues. The transformation of society and the achievement of social justice require tremendous institutional efforts: they require a system of taxation, well-​functioning judicial systems, a social welfare network, and so on. All of these go well beyond anything a theory of transitional justice may offer. The reality is that systematic violations of ESC rights and grave material inequality do not constitute atrocity crimes. It remains an unanswered question whether they should be, and one worth debating. And whether transitional justice can be expanded coherently to include these issues remains to be seen. Truth commissions and reparations may indeed contribute to fill these gaps, as has been done in some countries (Arthur et al., 2012; Correa, 2015). Moreover, the ICC Victims Trust Fund/​reparations program has recently moved toward a more expansive notion of reparations, by including the construction of community centers, providing housing, etcetera,62 which can be seen as a move toward acknowledging, if in a limited way, the importance of ESC rights. In any event, this debate needs to be taken seriously, particularly with rising inequality in many parts of the planet.

3.7. Transitional justice and “donors’ justice” One element that strongly shapes the transitional justice agenda is the role of donors. Transitional justice processes and the national or international groups that support them require funding (Arthur, 2018). Most of that funding comes from Western countries, whether from governments, foundations, or individuals. This is usually a collaborative relationship, with civil society actors, the UN, and other international organizations seeking support from a variety of funders. Although this relationship is symbiotic in some sense, in the final analysis, funders shape the field in deep and complicated ways, as they hold the “purse strings” and are thus able to shape NGOs’ agendas. Yet, little attention has been paid to this. Ab initio, most funders are from the Global North, as are many practitioners and scholars, while the demand—​but not necessarily the need—​for transitional justice processes comes

61 Uprimny

Yepes (2009), for example, has made a significant effort in developing the idea of transformative reparations and what it would entail in practice. 62  ICC (n.d.). The Trust Fund for Victims. Available at https://​www.trustfundforvictims.org/​en/​what-​ we-​do/​reparation-​orders (Accessed: January 30, 2019).

Transitional Justice in the 21st Century    605 in large measure from the Global South. Transitional justice, both in its practice and in the way the scholarship around it is produced and consumed (Fletcher and Weinstein, 2018), has a tendency to travel north to south, thereby perpetuating the hegemonic relationship between north and south (Burgis-​Kasthala, 2016, p. 932; Balasco, 2018, p. 376). This creates underexplored tensions, although an important dialogue held recently by Berkeley Law School has explored them in depth (Fletcher and Weinstein, 2018). Second, transitional justice processes respond to funders’ agendas in important ways. To the extent that NGOs’ agendas are influenced by funders, transitional justice might become “funders’ justice.” Related to the discussion in the previous section, a question arises as to what impact donors’ values have had in transitional justice’s (and human rights) neglect of ESC rights. Interestingly, the Ford Foundation, which has strongly supported transitional justice measures for well over a decade, has recently re-​focused its strategy on inequality (Walker, 2015). This is a commendable step, and it also shows a very different approach than Ford’s decision to, in a sense, create ICTJ in 2001,63 as Ford’s focus is now on a broad systematic issue rather than on a narrower technical approach to addressing human rights abuses.

4.  Conclusion We have explored some key challenges for transitional justice, most of which are an attempt to test and expand the limits of the field. Although we agree that transitional justice must go beyond its 1990s confinement to democratic transitions, there is also the danger—​ particularly in the reparative and transformative justice movements—​of expanding its limits to the point of rendering transitional justice incoherent or useless practically by encompassing too much. Thus, the challenge must be not only in the expansion of the field, but also on a careful exploration of its practical and theoretical limitations. The current populist momentum—​international in scale—​poses challenges and risks to the transitional justice project for some time to come. The playing field is quite different from what it was at the beginning of the 1990s, as the winds of politics have turned against transitional justice and human rights more broadly (Luban, 2013, p. 508). There is reason for concern, particularly because most—​if not all—​of the atrocities discussed in this chapter were related to the rise of ideologies with nationalist, xenophobic, and nativist features. Has humankind forgotten what happened in the past century? If so, the rise of populism should give us pause on the future of human rights and correspondingly on the effectiveness of transitional justice. The current path appears treacherous and the future uncertain for transitional justice initiatives and for human rights generally. Nonetheless, it is worth remembering that the transitional justice project has always been a struggle, and its vision has always been contested (Al Hussein et al., 2015; Tolbert, 2015; Alston, 2017, p. 4). It is not a coincidence that the human rights and transitional justice projects arose “out of the ashes of the deepest authoritarian dysfunction and the greatest conflagration the world has ever seen” (Alston, 2017, p. 3).

63  International Center for Transitional Justice (n.d.) About Us. Available at https://​www.ictj.org/​ about (Accessed: January 30, 2019).

606    David Tolbert and Marcela Prieto Rudolphy Ultimately, the goal of the transitional justice project is moral transformation (Luban, 2013, p. 510). Transitional justice aims for the transformation of society so that atrocities become less common and transitional justice efforts less in demand. This sort of transformation requires time, most likely over generations, with a road that will be paved with obstacles and setbacks. The imperative is, as Zalaquett (1992, p. 1438) once said, “to learn how to live with real-​life restrictions, but to seek nevertheless to advance one’s most cherished values day by day to the extent possible. Relentlessly. Responsibly.”

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CHAPTER 26

In ternationa l C ri mi na l Ju stic e Nancy Amoury Combs 1.  Introduction: International Criminal Justice after Atrocities Crimes against humanity are as old as humanity, but it is only very recently that perpetrators of any sort of mass atrocities have become subject to criminal prosecutions. Indeed, for most of human history, those who committed small-​scale violent crimes, such as isolated murders, rapes, and robberies, routinely suffered criminal punishment, whereas those who exterminated large numbers of individuals made off with impunity. As cynical commenters have observed: if you “kill one person, you go to prison; kill 20, you go to an insane asylum; kill ten thousand, and you get invited to a peace conference” (Brody, 2003). Although that perverse prediction still reflects the grim denouement of most current mass atrocities, recent decades have seen increasing efforts to visit criminal accountability on the perpetrators of large-​scale international crimes. Beginning with the Nuremberg and Tokyo Tribunals, established after World War II to prosecute high-​ranking Nazi and Japanese war criminals, the international community has created numerous courts and tribunals with jurisdiction to prosecute those who commit genocide, crimes against humanity, and large-​scale war crimes. Bloodbaths in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and East Timor, among others, have been followed by indictments, prosecutions, and convictions in ad hoc tribunals established specifically to bring the perpetrators of the death and destruction to account. Moreover, in 1998, the world’s nations joined together to establish a permanent International Criminal Court (ICC) to exercise prospective jurisdiction over those who commit mass atrocities. And in the meantime, many domestic jurisdictions have followed suit. Some, such as Argentina, Ethiopia, and Rwanda, have prosecuted mass atrocities taking place on their own soil, whereas others, such as Belgium, Senegal, and Spain, have employed universal jurisdiction to prosecute offenses perpetrated in distant locations. All of these efforts have normalized the notion that serious international crimes should be followed by serious criminal penalties, a notion that should hardly need normalizing.

618   Nancy Amoury Combs After all, if one murder is well established to justify a significant prison sentence, why should we doubt that a genocide likewise does? At the same time, the short history of international criminal law (ICL) shows that what might seem to be a self-​evident proposition is at the same time a fragile one; indeed, the modern international criminal justice project is as vulnerable now as it ever has been (Powderly, 2019).1 This chapter explores international criminal prosecutions for mass atrocities through two lenses: academic and real-​world. First, the chapter traces the evolution of international criminal law scholarship. The scholarship surrounding a legal field says a great deal about the field itself, and our exploration of mass atrocity scholarship will reflect the evolution that has taken place in the attitudes and expectations of scholars, popular commentators, and practitioners of mass atrocity trials. Second, this chapter highlights some of the most serious challenges that threaten real-​world criminal prosecutions of mass atrocities. Although these prosecutions face some doctrinal difficulties that I will identify, their greatest current challenges emanate from realms beyond the legal. Here, I identify international criminal law’s selectivity and its evidentiary impediments as two of its most daunting challenges. These and other problems more broadly highlight what perhaps is the field’s most pressing overarching difficulty: the stark mismatch between the ideals to which the field aspires and the reality in which it is mired.

2.  The Scholarship Surrounding Mass Atrocity Prosecutions: Evolution and Transformation Mass atrocities showcase the basest of human instincts, and perhaps for that reason, they have historically generated intense academic interest across numerous disciplines. Whether it is social-​science literature that seeks to identify the factors that lead to mass atrocities (Russett, 1964; Tanter and Midlarsky, 1967; Hibbs, 1973; Muller and Seligson, 1987; Staub, 1989; Rummel, 1997; Collier and Hoeffler, 1998; Easterly et al., 2006) or journalistic literature that plumbs the psyches of those who have perpetrated mass atrocities (Hatzfeld, 2005), academics and commentators have displayed an arguably morbid fascination with the death and destruction that characterizes genocides, crimes against humanity, and large-​ scale war crimes. Not surprisingly, prosecutions of mass atrocities have likewise captured the academic imagination. Although acknowledged to be a niche field that impacts relatively few individuals, international criminal law has spawned a disproportionately large body of scholarship (Van Sliedregt, 2016).2 Several academic journals are devoted largely to scholarship surrounding 1 Many commentators consider the present moment to pose a crucial junction for international criminal justice, not least because the field has been shrinking (Vasiliev, 2015). 2  The disproportionate quantity of ICL scholarship was recognized even during the discipline’s early days. Already more than twenty years ago, it was noted that the international tribunals for the former Yugoslavia and Rwanda “have themselves spawned over 300 articles in the international journals, more than any other topic in international law in the last decade” (Wald, 2000, p. 189).

International Criminal Justice    619 mass atrocity prosecutions,3 and even mainstream international law journals devote arguably disproportionate space to literature addressing mass atrocity prosecutions.4 The Leiden Journal of International Law, for instance, received so many international criminal law submissions that it was compelled to devote an entire section of the journal to the international criminal tribunals (Aantjes et al., 1995; Amaya-​Castro and Skouteris, 2001), and a few years later, it needed to add a sub-​section so as to feature scholarship pertaining to the ICC (Amaya-​Castro and Skouteris, 2001). And these measures still have not matched demand. One of the Leiden Journal’s editors observed that the Journal receives enough “unsolicited ICL-​related manuscripts” as to easily “fill an entire Leiden Journal of International Criminal Law following the most rigorous selection” (Vasiliev, 2015, p. 706). International criminal law scholarship, moreover, appears in publications beyond law review journals, “including treatises, textbooks and handbooks, commentaries, companions as well as monographs, [and] essay collections in honor of distinguished authorities in international criminal law” (Kreβ, 2014, p. 9). Finally, international criminal law scholarship has exploded not only in traditional legal publications, such as law journals and academic presses, but also in less-​traditional fora, such as blogs and other internet resources, many of which are now wholly dedicated to mass atrocity prosecutions. Some blogs are authored by international criminal law scholars and practitioners, who report current events and opine about the most recent controversies stirring in the various international criminal tribunals.5 Other sources provide day-​to-​day reporting of international criminal trials. Some of these reports take the form of traditional news articles, such as those published by the Institute for War and Peace Reporting and the Hirondelle News Agency, which covered trials at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), respectively. Other organizations monitor specific trials and publicize summaries of each day’s testimony and legal argumentation.6 These and other groups use their intimate familiarity

3  Some examples are the Journal of International Criminal Justice, the International Criminal Law Review, the International Criminal Justice Review, The International Journal of Transnational Justice, and the African Journal of International Criminal Justice. 4  One example is the Criminal Law Forum. As Robert Currie put it: “There are not only a number of standalone journals wholly dedicated to international criminal law but the general periodical literature and legal bookshelves are chock-​a-​block with international criminal law related material” (Currie, 2015, p. 1166). 5  For instance, Dov Jacobs’ blog, Spreading the Jam, centers almost exclusively on issues arising in mass atrocity prosecutions. Other multi-​contributor international law blogs address a wider range of topics but also routinely feature academic authors whose focus is mass atrocity prosecutions. For instance, Alex Whiting frequently posts ICL-​related blogs on Just Security while Kevin Jon Heller does the same on Opinio Juris. EJIL:Talk!, for its part, features a substantial quantity of ICL-​related posts by a number of authors. Moreover, some private practitioners who practice at the international criminal tribunals have created blogs presumably to publicize their expertise and thereby market their services (e.g., Nine Bedford Row. The International Criminal Law Blog. Available at: http://​www.criminalinternationallaw.com/​ (Accessed: April 3, 2019)). Other similar blogs make it difficult to ascertain their authors’ identities (e.g., International Criminal Law Blog). 6  The Coalition for the International Criminal Court has provided day-​by-​day reports on ICC trials, as has International Justice Monitor. The WSD Handa Center for Human Rights and International Justice has monitored and summarized the trials at the Special Court for Sierra Leone (SCSL) and the Special Panels in East Timor.

620   Nancy Amoury Combs with the trials to author lengthier, more over-​arching reports, analyzing, critiquing, and offering normative suggestions to policymakers and practitioners.7 Although these less-​ traditional sources differ in various ways, all of them, as Sergey Vasiliev (2015, p. 706) notes, “popularize—​explain and market—​mass atrocity prosecutions among wider audiences,” and many, unlike traditional scholarship, “have mass readership.” Not everyone appreciates the “spectacular rise” and expansion of ICL literature (Van Sliedregt, 2016, p. 1). Some commentators maintain that ICL scholarship “has become distended by over-​study” (Currie, 2015, p. 1166), whereas others criticize the large body of ICL literature for displacing scholarship addressing other international legal fields that they believe to be of equal or greater significance, including transnational criminal law (Currie, 2015) and human rights law (Schwöbel-​Patel, 2013). Not everyone is a critic, however. Some commentators analyze the enormous quantity of ICL scholarship but adopt a somewhat dispassionate stance toward it.8 Elies van Sliedregt (2016), for instance, has thoughtfully identified factors explaining why mass atrocity prosecutions have generated so much literature. Whatever the reasons, international criminal law scholarship unquestionably attracts considerable interest and did so even before international criminal law officially existed. Indeed, whereas doctrinal law typically precedes the scholarship that aims to clarify, guide, or critique that law, in the case of international criminal law, it was the scholarship that preceded the law, and arguably helped to bring the entire field into being. Specifically, for many years before any modern prosecutions of mass atrocities were actually underway, a small number of idealistic academics and lawyers, including M. Cherif Bassiouni and former Nuremberg prosecutor Ben Ferencz, presciently called for the establishment of bodies to prosecute international crimes9 (Ferencz 1980; Bassiouni 1991a; Bassiouni and Blakesley, 1992) at the same time that they parsed the doctrinal elements of the crimes that—​at that time—​were not subject to the jurisdiction in any existing court (Bassiouni and Derby, 1986; Bassiouni, 1991b). The ultimate creation of international criminal tribunals led to an explosion of scholarship and commentary, and that outsized quantity and readership have remained constant. However, those may be the only constant qualities when it comes to international criminal

7 The

Open Society Justice Initiative produced a monthly briefing report, analyzing that court’s progress and challenges; Open Society Justice Initiative (2019) Recent Developments at the Extraordinary Chambers in the Court of Cambodia. Available at: https://​www.justiceinitiative.org/​publications/​ recent-​developments-​extraordinary-​chambers-​courts-​cambodia-​january-​2019 (Accessed: May 31, 2019). Similarly, Human Rights Watch produced reports examining the SCSL’s Taylor trial and offering recommendations for future similar trials. Human Rights Watch. (2006) Trying Charles Taylor in the Hague: Making Justice Accessible for Those Most Affected. Available at: https://​www.hrw.org/​legacy/​ backgrounder/​ij/​ij0606/​ij0606.pdf (Accessed: April 5, 2019); Human Rights Watch (2012) “Even a ‘Big Man’ Must Face Justice: Lessons from the Trial of Charles Taylor.” Available at: https://​www.hrw.org/​ sites/​default/​files/​reports/​sierraLeone0712ForUpload_​0.pdf (Accessed: April 5, 2019). 8 Carsten Stahn and Eric de Brabandere (2014, pp. 6–​ 7), for instance, describe the increase in international law scholarship as “overall a positive phenomenon,” though they highlight some negative features. 9 Bassiouni’s and Ferencz’s scholarship was preceded by the work of some European scholars, including Stefan Glaser and Otto Triffterer (Glaser, 1954; Triffterer, 1966).

International Criminal Justice    621 law scholarship. In particular, in the last two decades, the field has evolved substantially—​in authorship, content, and tone. In the early days of modern international criminal law—​which date to the 1990s10—​much of its scholarship was authored not by scholars but by the prosecutors, defense counsel, and judges working at the tribunals and by the diplomats instrumental in creating them (Vasiliev, 2015).11 Consequently, the subject matter of this early scholarship predominantly centered on the doctrinal controversies that arose in the Tribunals’ early cases. The statutes of the first two modern international tribunals—​the ICTY and ICTR—​defined the crimes over which the tribunals had jurisdiction in relatively vague terms. Early scholarship, therefore, engaged lively controversies about the issues left open by these open-​ended definitions (Arbour, 2000; Swaak-​Goldman, 2000). Thus, we saw articles exploring whether crimes against humanity require a nexus to armed conflict (Orentlicher, 1991; Sunga, 1992; Meron, 1994; Van Schaack, 1999) and whether the civilian population targeted in a crime against humanity can include combatants (deGuzman, 2000). The Tribunals’ procedures generated perhaps an even greater quantity of doctrinal scholarship. The ICTY’s and ICTR’s initial procedural rules were not always sufficiently detailed or comprehensive as to provide appropriate guidance for the situations that arose (Fenrick, 1997; Schrag, 1997). In addition, the guidance they did provide was sometimes misguided. No one involved in the drafting process had had recent experience prosecuting mass atrocities (because no recent mass atrocities had been prosecuted), so some rules that seemed advisable in the abstract did not function as smoothly in practice. For this reason, the procedures were repeatedly revised,12 and they generated a large body of normative doctrinal scholarship.13 Whereas the content of early international criminal law scholarship was largely doctrinal, the tone of that scholarship reflected the prevailing optimism of the day. The 20th century had been among history’s most brutal, with approximately 250 conflicts in almost every region of the world resulting in an estimated 70 to 170 million deaths, through genocide, crimes against humanity, and war crimes (Bassiouni, 1999).14 Vicious murderers, from Josef Stalin to Pol Pot to Idi Amin, had carried out their lethal ends, and neither General Assembly resolutions nor exhortations from United Nations human rights bodies had stemmed the tide of violence. Amid this death and destruction, mass atrocity prosecutions—​following which real people would be sentenced to real prisons for really long periods of time—​promised to be a new and effective means of deterring mass murder and visiting much-​needed retribution on vicious despots. It is for this reason that early mass

10 The

very earliest international criminal law scholarship dates to the interwar period, when a group of progressive lawyers, including Vespasian Pella, Hugh Bellot, Henri Donnediue de Vabres, Quintiliano Saldana, and Ѐdouard Descamps, proposed an international forum to prosecute crimes under international law (Kreβ, 2014, Christensen, 2015). 11  As Mikkel Jarle Christensen details, many of the earliest international criminal law practitioners had been academics before taking high-​level positions at the international tribunals, and they continued their scholarly production while judging or prosecuting international crimes (Christensen, 2014). 12  The most recent revision of the ICTY’s procedural rules, in 2015, was their fiftieth. 13  Sluiter et al. (2013) provide the most comprehensive recent treatment. May et al. (2001) provide a book-​length treatment of ICTY procedure authored almost exclusively by ICTY practitioners. 14  Some historians have labeled the 20th century “the century of genocide” (Smith, 1987; Totten et al., 1997, p. 312).

622   Nancy Amoury Combs atrocity scholarship was characterized by soaring and inspirational rhetoric (Akhavan, 2003). Certainly, there were skeptics (Wippman, 1999; Sander, 2015), but Payam Akhavan (1997, p. 327) spoke for many when he hailed the Tribunals as “an unprecedented institutional expression of the indivisibility of peace and respect for human rights” and praised them for representing “a radical departure from the traditional realpolitik paradigm which has so often and for so long ignored the victims of mass murder and legitimized the rule of tyrants in the name of promoting the purported summum bonum of stability.”15 It is likewise for this reason that early international criminal law scholarship was almost entirely unreflective. Commentators assumed without question that mass atrocity trials could achieve a plethora of important goals, including affirming the rule of law in weak, lawless states (Landsman, 1996; Minow, 1998; Teitel, 2000), promoting peace and assisting in the transition to democracy (Cassese, 1998), reconciling formerly conflicting parties (Weinstein and Stover, 2004), deterring future despots from committing similar crimes16 (Garro and Dahl, 1987; Malamud-​Goti, 1990; Orentlicher, 1991; Bassiouni, 1996), and creating a historical record of the conflict that would assist in achieving all of the previously delineated goals (Cassese, 1998; May and Wierda, 2001).17 Carsten Stahn (2012, p. 254) appropriately labeled the turn to international criminal tribunals in the 1990s as “a ‘faith-​based’ project,” which faith, as Joe Powderly (2019, p. 4) put it, was “evangelical.” In sum, early scholars assumed mass atrocity prosecutions to be unmitigated goods, and they sought only to clarify the vagaries of the international criminal justice system so as to render it ever more efficient and effective. During recent years, international criminal scholarship has evolved in a host of ways. Indeed, recent scholars have highlighted the pluralistic nature of mass atrocity prosecutions themselves (Van Sliedregt and Vasiliev, 2014), and that same pluralism now characterizes the scholarship concerning mass atrocity prosecutions. First off, the content of international criminal scholarship has become increasingly diverse. Although international criminal tribunals continue to confront doctrinal controversies which continue to be the subject of some academic literature18 (Adams, 2015), now, much of the field’s most interesting and innovative scholarship centers on foundational theoretical issues. The theoretical underpinnings of each of the core international crimes have been thoroughly explored,19 as 15 

Richard Goldstone (1997) similarly labeled the new international criminal tribunals “a tremendous and exciting step forward.” Even in 2013, scholars were still referring to the “triumphalism” surrounding international criminal law, though simultaneously critiquing it (Krever, 2013, p. 703). 16  Indeed, the Security Council established the ICTY while the Yugoslav conflict was still underway with the express goal of deterring international crimes (UN Security Council (1994) “Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991.” 49th Sess., UN Doc. A/​49/​342, para. 13). 17 As Joe Powderly (2019, p. 4) observes, ICL’s early “mandate was framed as diffuse and all encompassing; preventative, punitive, restorative, and reconciliatory, amongst others.” 18 Claus Kreβ (2014) highlights the continuing impact of doctrinal scholarship by pointing to the impact of controversies surrounding the modes of liability, the policy element of crimes against humanity, and the concept of a “case” for purposes of complementarity, among other doctrines. 19  Larry May (2005; 2007; 2008; 2010) has provided perhaps the most critically acclaimed treatment of these subjects in a series of monographs. Tom Dannenbaum (2017; 2018) has also done excellent work explicating various foundational questions regarding the crime of aggression as has David Luban (2004) on crimes against humanity.

International Criminal Justice    623 have the relevant distinctions between international and domestic crimes (Boister, 2003; Boister, 2012; Heller, 2017). International criminal law defenses are less well developed, but these too have generated careful theoretical scrutiny (Gallant, 2003; Ambos, 2011; Ohlin and May, 2016), as have international criminal law’s modes of liability (Damaška, 2001; Osiel, 2010). Finally, and most globally, scholars have reached back to first principles to justify the imposition of criminal punishment for international crimes (Murphy, 2017; Murphy, 2018), the exercise of universal jurisdiction for international crimes (van der Vyver, 2000; Luban, 2004; May, 2005; Duff, 2009; Duff, 2010), and the goals of international criminal law (Damaška, 2008; Klamberg, 2010; Keenan, 2016). Not only has the content of international criminal law scholarship diversified, but so has its methodology. Indeed, ICL scholarship has become increasingly interdisciplinary and now often features sophisticated empirical methods. Gone are the days when ICL scholarship was premised on a host of assumptions that its authors made no effort to verify. Now, no longer assuming that prosecutions deter future international crime, authors have empirically tested that proposition—​and reached somewhat differing conclusions (Ku and Nzelibe, 2006; Sikkink, 2011; Cronin-​Furman, 2013; Jo and Simmons, 2016). Likewise, no longer reflexively touting the capacity of criminal prosecutions to reconcile formerly warring parties (Weinstein and Stover, 2004), contemporary scholars applied empirical methods to that question and have moderated their claims accordingly (Clark, 2014; Diggelmann, 2016; Holá et al., 2018). Recent scholars have also used empirical methods to assess the performance of various international criminal justice mechanisms. Has the ICC Prosecution’s selection of situations conformed to its promise to prioritize situations according to gravity? Alette Smeulers et al. (2015) employ sophisticated empirical methods to conclude that it has. What do we make of international criminal sentencing? Sylvia D’Ascoli (2011) empirically assesses the way in which the international tribunals have applied the indeterminate sentencing rules that provide them so much discretion. Barbora Holá et al. (2011; 2012), for their parts, empirically assess the consistency of the ICTY’s and ICTR’s sentencing practices, while William Pruitt (2014) turns his empirical attention to aggravating and mitigating factors in sentencing. And this author has employed empirical methods to explore the nature, content, and deficiencies of eyewitness testimony in international criminal trials (Combs; 2010; 2015a; 2017). Interdisciplinarity in ICL scholarship also extends beyond empirical methods, with political scientists,20 philosophers,21 sociologists,22 and anthropologists,23 among others, now bringing their discipline-​specific skills to bear on issues of international criminal justice. Indeed, interdisciplinarity of all kinds in ICL scholarship has become so prevalent and so significant that it has itself become the subject of study. The International Criminal Law Review devoted an entire issue to international criminal law and interdisciplinarity (Burgis-​ Kasthala, 2016a), and other publications have featured individual articles on the subject. Amelia Hoover Green (2010), for instance, highlights the limitations of statistical evidence

20 

For example, the work of Tim Kelsall, Phil Clark, Tom Dannenbaum, and Kathryn Sikkink. For example, the work of Larry May, Jens Ohlin, and Colleen Murphy. 22  For example, the work of Mikkel Jarle Christensen and Salif Nimaga. 23  For example, the work of M. Kamari Clarke and Rosalind Shaw. 21 

624   Nancy Amoury Combs in mass atrocity prosecutions, whereas Catrien Bijleveld (2010, p. 275) sheds light on “methodological particularities” that arise in the empirical study of international crimes.24 Recent international criminal law scholarship increasingly represents diverse authors with increasingly diverse viewpoints. As already noted, many of the most prominent initial ICL voices were judges, practitioners, and diplomats. Academics soon made more and more prominent contributions to the field, but these early academic authors tended to be trained in law and hailing from Europe, North America, and Australia/​New Zealand. As just described, the turn to interdisciplinarity introduced academics from other disciplines, but these too primarily came from developed Western nations. In more recent years, by contrast, scholars from Asia,25 the Middle East,26 and Africa27 have made more prominent marks on the field (Kreβ, 2014). Diversity in ICL scholarship has not only been enhanced by the inclusion of scholars with different backgrounds but also by scholarship espousing different perspectives. The American Journal of International Law Unbound (Kiyani, 2016a; Menon, 2016; Tzouvala, 2016; Zoli, 2016) and the Journal of International Criminal Justice (Burgis-​Kasthala, 2016b; Kiyani, 2016b; Reynolds and Xavier, 2016), for instance, both recently published symposia on Third World Approaches to International Criminal Law (or TWAIL-​ICL). This scholarship interrogates some of international criminal law’s foundational notions from a vantage point oriented to the Global South. Moreover, critical legal scholars of all stripes have lately turned their attention to international criminal law. Indeed, the reference to critical scholars introduces perhaps the most noteworthy evolution in international criminal law scholarship: its perspective and tone. As discussed above, early ICL scholarship was both idealistic in perspective and celebratory—​almost messianic—​in tone. Critical scholarship soon emerged, but that first wave of critical scholarship was aimed at improving the effectiveness of international criminal prosecutions. For instance, some early critics targeted the long length of international criminal prosecutions (Drumbl, 1998; Penrose, 1999; Mundis, 2000),28 while others highlighted what they perceived to be the Tribunals’ inadequate outreach efforts (Power, 2003; Simonović, 2004; Nice and Vallières-​Roland, 2005; Gosnell, 2008). But this scholarship reflexively assumed that “international criminal courts are mechanisms of progress” (Sander, 2015, p. 750), even if they might need some tinkering here and there. In recent years, by contrast, critical scholars have taken aim at ICL’s most foundational assumptions (Schwöbel, 2014) and have insisted on a more nuanced understanding of the role of politics in ICL (Sander, 2015). Some of these critics have targeted the selectivity of ICL (Kiyani, 2016a; 2016b); some have emphasized the politics that inevitably infiltrates the practice of ICL (Sander, 2015); and a minority have issued critiques that are so strident in tone or all-​encompassing in content that they have been deemed “radical” (Sander, 2015, p. 753). But whether radical or moderate, effectiveness-​targeting or assumption-​targeting, these critiques are now very

24 

See also Chapter 2 by Catrien Bijleveld in this volume. For example, the scholarship of Suzannah Linton, Kim Young Sok, Song Tianying, and Jia Bing Bing. 26  For example, the scholarship of Mohamed Elewa Badar (2013) and Mohamed M. El Zeidy (2008). 27  For instance, the scholarship of Charles Chernor Jalloh, Daniel David Ntanda Nsereko, and Dapo Akande. See also The International Criminal Court in Africa, edited by Jalloh and Bantekas (2017), which features a significant proportion of African authors. 28 International Crisis Group (2001) “The International Criminal Tribunal for Rwanda: Justice Delayed.” Available at: https://​www.refworld.org/​pdfid/​3c0cc25a2.pdf (Accessed: April 17, 2019). 25 

International Criminal Justice    625 much a part of the ICL scholarly dialogue, even generating an acronym—​CAICL (Critical Approaches to ICL) (Schwöbel, 2014). Barrie Sander (2015), in fact, goes so far as to maintain that the balance of power has shifted toward the critical voices, while Darryl Robinson (2015, p. 324) similarly observes that “the critical note has come to dominate the discourse.” Intentionally or not, these scholarly critiques have coincided with a series of real-​world setbacks that have left international criminal justice and its scholarship, in the words of Joe Powderly (2019, p. 5), “in an exceptionally vulnerable state.” Other commentators concur. Sergey Vasiliev (2015, p. 705) describes ICL as gripped by “an acute ontological anxiety,” and Frédéric Mégret (2016, p. 198) likewise employs the concept of “anxiety” to elucidate the struggles within and about international criminal justice. As a result, these scholars, along with others, describe ICL as surrounded by a “pervading, palpable sense of crisis” (Powderly, 2019, p. 1; Vasiliev, 2019). Sergey Vasiliev (2019, p. 7) indeed finds it ironic that the international criminal justice system which “has always been marketed as the ultimate crisis-​solving tool now itself needs to be salvaged.” Next, Section 3 turns to international criminal law practice and considers some of the potentially insurmountable challenges that have plunged the field into “crisis.” This exploration reveals that whereas the scholarship of ICL has evolved dramatically over the years, the field itself is still mired in many of the challenges that can be traced back to its earliest days—​and that appear just as insoluble now as they did then.

3.  International Criminal Law: Successes, Setbacks, and Seemingly Everlasting Challenges As noted, early international criminal law scholarship was characterized by soaring tones and inspirational rhetoric, and the political realities of the time appeared to justify that optimism. When the blatantly political United Nations Security Council established the ICTY in 1993, it appeared to usher in a new world, a world in which law triumphed over power and justice over politics. That the creation of the ICTY was quickly followed by the establishment of a series of ad hoc tribunals charged with prosecuting atrocities throughout the globe, from the then-​ recent in Rwanda to the long-​ago in Cambodia, only increased the sense that a global transformation was underway. This optimism culminated in the 1998 conclusion of the Rome Statute creating a permanent international criminal court. Scholars have described these few years both as international criminal law’s “honeymoon period” (Luban, 2013, p. 506; Kreβ, 2014, p. 11), and “one of the more extensive waves of institution-​building in modern international relations” (Drumbl, 2007, p. 10). Certainly, the early international criminal tribunals suffered growing pains. They were slow to start29 and slow to carry out their proceedings once they did start (Combs, 2002).

29  It took 15 months for the ICTY’s and ICTR’s first Prosecutor to assume office (UN Security Council (1993) “Resolution 827.” 3217th Sess., UN Doc. S/​RES/​8270; United Nations International Residual Mechanism for Criminal Tribunals (n.d.). Former Prosecutors. Available at: http://​www.icty.org/​en/​

626   Nancy Amoury Combs Some tribunals initially had difficulty gaining custody over indictees (Combs, 2002), and virtually all saw their prosecutorial decisions scrutinized and critiqued.30 But despite confronting and often failing to surmount these and other non-​trivial challenges, the ad hoc tribunals also racked up numerous successes, from both a criminal law perspective and from an international relations perspective. At the criminal law level, the tribunals presided over many of the earliest and most well-​known genocide trials and convictions.31 Moreover, through these and literally hundreds of other cases, the tribunals established a body of precedents that both developed and clarified the substantive and procedural components of international criminal law. These precedents center on the elements of international crimes and their defenses, the contours of the various modes of liability through which international crimes can be committed, and a host of procedural rules that have been revised and refined to achieve greater efficiency and a more robust promotion of fair trial norms. At the international relations level, these early tribunals eventually gained custody over the vast majority of their indictees, and most were able to prosecute a plethora of high-​ level officials, including former heads of state. Finally, and most importantly, these tribunals succeeded in dramatically changing the narrative surrounding the aftermath of mass atrocity. Before the 1990s, no one expected perpetrators of mass atrocities to be held criminally accountable. Today, as a statistical matter, no one should expect perpetrators of mass atrocities to be held criminally accountable, because most still are not. But the advent of the international criminal justice project transformed the world from one in which impunity following international crimes is expected to one in which impunity following international crimes is decried. At present, there is no ability to hold accountable the perpetrators of international crimes in Syria, Yemen, and Xinjiang, but commentators from across the political spectrum now routinely and stridently call for the imposition of that accountability (Van Schaack and Goodman, 2014),32 and, indeed, concrete steps have been taken to attain it, even if only in the future. In particular, the international community has been about/​office-​of-​the-​prosecutor/​former-​prosecutors (Accessed: March 16, 2019). After Richard Goldstone was finally appointed, Tribunal judges and others expressed frustration with the slow pace of early indictments (Whiting, 2015). 30  As noted later, the ICTY’s and ICTR’s first Prosecutor was criticized for targeting relatively low-​level offenders. The Prosecutor was also criticized for bringing too many counts against Slobodan Milošević (Trahan, 2017) and for failing to indict any Tutsi (Haskell and Waldorf, 2011). 31 The ICTR was the first international court to prosecute genocide. Its determinations of the acts that constitute genocide and the groups protected under the prohibition against genocide (Akayesu (Judgement) No. ICTR-​96-​4-​T (September 2, 1998)) have been highly influential, as have its pronouncements on incitement to genocide (Gallimore, 2008), and sexual violence in international criminal law; See International Center for Ethics, Justice, and Public Life, Brandeis University (2010) “International Criminal Tribunal for Rwanda.” Available at: http://​www.brandeis.edu/​ethics/​pdfs/​ internationaljustice/​Legacy_​of_​ICTR_​in_​Africa_​ICEJPL.pdf (Accessed: April 17, 2019). Indeed, the ICTR was the first tribunal to find that rape could constitute an act of genocide (Akayesu (Judgement) No. ICTR-​96-​4-​T (September 2, 1998)). 32  Human Rights Watch (2013) Syria: Criminal Justice for Serious Crimes Under International Law. Available at: https://​www.hrw.org/​sites/​default/​files/​related_​material/​1213_​syria_​briefingpaper.pdf (Accessed: April 17, 2019); International Commission of Jurists (2018) Bearing the Brunt of War in Yemen: International Law Violations and Their Impact on the Civilian Population. Available at: http://​ www.icj.org/​wp-​content/​uploads/​2018/​09/​Yemen-​War-​impact-​on-​populations-​Advocacy-​Analysis-​ Brief-​2018-​ENG.pdf (Accessed: April 17, 2019); Human Rights Watch (2021) China: Crimes Against

International Criminal Justice    627 so frustrated with its inability to bring perpetrators of Syrian atrocities to justice that the UN General Assembly created the International, Impartial and Independent Mechanism to collect and analyze evidence of international crimes in Syria with a view toward subsequent prosecutions (Whiting, 2017). These rhetorical and real-​world acts show a recognition that “not now” should not mean “not ever” when it comes to international criminal prosecutions. These successes notwithstanding, the international criminal justice project faces a host of pressing challenges to which the following sections turn. Section 3.1 addresses the “Criminal” in “International Criminal Law” and highlights some of the doctrinal difficulties that can impede the smooth functioning of mass atrocity prosecutions. Although these doctrinal difficulties may interest scholars, they do not constitute serious challenges to the advancement of the field. Section 3.2 then turns to the “International” in “International Criminal Law” and explicates the challenges that arise from the global and political environment in which the field operates. It is these challenges that drive the most radical of the ICL critiques. It is these challenges that drive the crisis narrative that is increasingly used to describe the field. And consequently, it is these challenges that have the potential to drive the field out of existence.

3.1. The “criminal” in “international criminal law” International criminal law is, at its most basic level, a set of international legal rules, the violation of which can result in the imposition of criminal penalties on individuals. Although the scope of international criminal law is subject to some contestation, it is well established to include four core international crimes: genocide, crimes against humanity, war crimes, and aggression. Only the first three crimes have been prosecuted in modern times, and each present certain controversies, challenges, and uncertainties, a few of which will be highlighted in the following sections.

3.1.1. Genocide Sometimes referred to as the “crime of crimes” (Schabas, 2009), genocide has captured the public imagination ever since it entered both the lexicon and the short list of international crimes following World War II. Unfortunately, the public’s interest—​and misapprehension—​ of genocide arguably constitutes the primary challenge confronting those seeking to prosecute the crime. The public’s interest in the crime stems from its popular status as the most serious international crime. The public’s misapprehension stems from the crime’s exceedingly narrow legal scope. As a legal matter, the definition of genocide describes an act that is specifically intended to destroy an enumerated group in whole or in part.33 That definition is particularly narrow,

Humanity in Xinjiang. Available at https://​www.hrw.org/​news/​2021/​04/​19/​china-​crimes-​against-​ humanity-​xinjiang (Accessed: June 30, 2021); 33  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention).

628   Nancy Amoury Combs or, said differently, that definition does not encompass a great deal of large-​scale violence targeting groups, because most such violence either is not directed at one of genocide’s enumerated groups or is not motivated by a desire to destroy the group in whole or in part. Specifically, the groups enumerated in the legal definition of genocide are confined to ethnic, racial, religious, and national groups. Genocide, therefore, does not extend to the destruction of political groups, as such, and therefore does not cover the majority of group-​ based killings actually occurring in the world—​because political affiliation is the primary reason that groups are targeted for destruction (Kuper, 1985; Nersessian, 2010). The exclusion of political groups from the definition of genocide not only narrows the crime’s coverage, but it also renders the crime more difficult to prove even when the violence does target one of the enumerated groups. As noted, genocide requires proof that the perpetrator specifically intended to destroy a racial, religious, national, or ethnic group in whole or in part. Frequently in conflict situations, however, racial, religious, ethnic, or national groups also espouse certain political views, so those accused of genocide can escape liability by claiming that their attacks against these groups were based on their political affiliation, not their racial, religious, national, or ethnic status. Finally, the crime of genocide is difficult to prove even when the perpetrators unquestionably target their violence against racial, religious, national, or ethnic groups as such, because it is difficult to prove that they perpetrated the violence with the intent to destroy the group in whole or in part. Often, perpetrators can credibly claim that their violence was aimed at some lesser goal, such as neutralizing the group’s military capabilities or re-​taking group-​held territory. Indeed, it was this failure to prove the element of specific intent that foiled ICTY prosecutors who sought to characterize the Bosnian ethnic-​cleansing campaign as genocide34 and that initially foiled ICC prosecutors seeking to charge Sudanese President al-​Bashir with genocide.35 The narrow legal scope of genocide need not undermine efforts to impose criminal liability on mass atrocity perpetrators, because international criminal law contains other, extremely serious crimes that can be charged—​and usually proven—​when one of the elements of genocide does not exist. Problems arise, however, because laypeople often do not consider conviction of an alternative international crime—​even one that results in the imposition of a lengthy prison sentence—​to be in any way an adequate substitute for a genocide conviction (Luban, 2006). For one thing, in the popular conception, genocide is considered the worst of the worst of international crimes—​no matter how many international lawyers dispute that view and assert that crimes against humanity are equally bad (Luban, 2006). In addition, the non-​legal definition of genocide is far broader than the legal definition and extends to any set of mass killings committed pursuant to discriminatory motives (Kirsch, 2009). Thus, because the public in general and victims in particular conceptualize genocide as far worse than any other international crime and far more broadly applicable than it actually is, tremendous disappointment attends each and every failure to charge or prove

34  Jelisić (Judgement) Case IT-​95-​10-​T (14 December 1999); Krajišnik (Judgement) Case IT-​00-​39-​T, Judgement (27 September 2006). 35  The ICC’s Appeals Chamber reversed the Pre-​ Trial Chamber’s initial refusal to issue an arrest warrant for genocide against al-​Bashir. See Al Bashir (Judgement on the Appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) Case No. CC-​02/​05-​01/​09-​OA (3 February 2010) para. 42.

International Criminal Justice    629 the crime. It is for that reason that Bosnian victims were devastated each time the ICTY acquitted someone accused of genocide (Sadoviić, 2006; Simons, 2006). Likewise, it is for this reason that a worldwide uproar greeted the UN Commission of Inquiry’s conclusion that the violence in Darfur was not a genocide (Luban, 2006). Finally, it may be for this reason that some courts appear to creatively interpret the elements of genocide in order to find that the crime occurred (Magnarella, 1997). Certainly, some commentators considered the ICTY to have expansively—​and perhaps distortedly—​interpreted the “intent” and “in part” elements of genocide to conclude that the definition covered the mass killings of Bosnian Muslim men and boys in Srebrenica (Schabas, 2001, pp. 45–​47; Tournaye, 2003, pp. 460–​461; Kreß, 2007, 627–​629).

3.1.2. Crimes against humanity Of the four core international crimes, crimes against humanity arguably generate the least consequential doctrinal controversies. Admittedly, the definition of crimes against humanity has been less certain than the other international crimes, largely because the prohibition against crimes against humanity heretofore has not been the subject of a multi-​lateral treaty. For that reason, the crime has been defined in different ways in the jurisdictional provisions of different tribunals, and those differences have generated lively scholarly discussions, as referenced in Section 2. Also, for that reason, a multi-​lateral treaty prohibiting crimes against humanity is currently in the works36 and appears to have considerable support from both scholars and states (Bassiouni, 2010; Kreß and Garibian, 2018; Sadat, 2018), though some have questioned the need for the treaty37 and others have worried that the treaty could undermine the ICC’s definition of the crime (Correll, 2014).38 However, at present, most of the treaty’s most controversial issues are relatively small-​scale and concern the treaty’s treatment of the applicable statute of limitations, the standard for superior responsibility, and the nature of the policy requirement embedded in the definition of the crime (Robinson, 2014).39

3.1.3. War crimes International humanitarian law (IHL), formerly known as the laws of war, is the most codified branch of ICL and the branch with the longest historical pedigree. Indeed, rules governing the conduct of warfare date back to ancient times, when, for instance, the Indian Laws of Manu prohibited certain inhumane weapons (Weiss et al., 1994) and the Mesopotamians developed rules addressing the treatment of prisoners of war (Szpak, 2007).

36 The

International Law Commission completed its first reading of the draft articles for the convention, and more recently members of the General Assembly’s Sixth Committee (on legal questions) reviewed the treaty (Batool, 2017). 37  UN General Assembly (2013) Summary Record of the 17th Meeting, A/​C.6/​68/​SR.17, para. 106. 38 That fear now seems misplaced because the current draft articles feature the Rome Statute’s definition of crimes against humanity (Sadat, 2012). 39  Amnesty International (2018) “17-​Point Program for a Convention on Crimes against Humanity.” Available at: https://​www.amnesty.org/​download/​Documents/​IOR5179142018ENGLISH.pdf (Accessed: April 18, 2019).

630   Nancy Amoury Combs Modern IHL is governed by a handful of twentieth century treaties, including the 1907 Hague Convention,40 the 1949 Geneva Conventions,41 and the 1977 Additional Protocols to the 1949 Geneva Conventions.42 The rules embodied in these Conventions are well suited to the most common forms of warfare that prevailed at the time the Conventions were concluded, but many now seem somewhat anachronistic. For one thing, the vast bulk of IHL rules pertain to international armed conflicts, whereas the majority of current conflicts are non-​international. Moreover, the September 11 attacks and the advent of large-​scale armed conflicts against multi-​national terrorist groups that do not hold territory highlight the incongruity between the IHL rules, which envision state-​to-​state, territorial-​based combat, and the contemporary realities of warfare. Are members of al-​Qaeda “combatants” under IHL rules such that they benefit from the Third Geneva Convention protections for prisoners of war when they are captured? Or are they unprivileged belligerents who have no such rights? How can states operationalize the Third Geneva Convention’s repatriation rules in the context of a worldwide war on terror that has no geographical boundaries or identifiable end date? And what is the legal status of drone-​strike assassinations? Each of these questions and many more are highly contested under current IHL rules, precisely because the current rules were never expected to cover the situations to which they are now being applied. Unfortunately, these and other controversial questions have not been litigated in mass atrocity prosecutions, either because the specific crimes have not fallen within the jurisdiction of existing criminal courts or because the alleged criminal authors have not been charged or apprehended. Among international criminal tribunals, the ICTY has produced the most copious and sophisticated IHL jurisprudence, yet it has been highly contested. Early ICTY judgements, for instance, dramatically and controversially expanded the reach of certain IHL prohibitions,43 but later judgements

40  Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted October 18, 1907, entered into force January 26, 1910) (Hague Convention). 41  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21,1950) 75 UNTS 287 (Fourth Geneva Convention). 42  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 609 (Protocol II). 43 In Tadić (Appeals Judgement) Case No. IT-​94-​1-​A (15 July 1999), paras. 164–​171), for instance, the ICTY held that the Fourth Geneva Convention protected civilians of the same nationality as their captors despite text suggesting that protected persons had to be of a different nationality (Sassòli and Olson, 2000). The ICC has also expanded the concept of “protected person” (Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Bosco Ntaganda) Case No. ICC-​01/​04-​02/​06 (9 June 2014) paras. 76–​79).

International Criminal Justice    631 applied the law more conservatively, perhaps in response to pressure from powerful states.44 Although the foregoing doctrinal controversies present certain challenges that can frustrate ICL practitioners and excite the passions of ICL scholars, they pale in severity and significance to the challenges addressed next in Section 3.2.

3.2 The “international” in international criminal law The criminal laws of every jurisdiction give rise to doctrinal controversies, and international criminal laws probably pose more than the usual challenges for those seeking to interpret them. But it is the “international” aspect of international criminal law that generates the most debilitating difficulties. That is, the issues relating to the global—​and political—​ aspects of the field are the ones with the capacity to plunge mass atrocity prosecutions into the “perpetual crisis” described earlier (Powderly, 2019, p. 4). In this section, I will explore two of the most pressing “international” challenges—​selectivity and fact-​finding impediments—​and will conclude by explaining why they and other related obstacles both stem from and reflect the same overarching difficulty.

3.2.1. Selectivity International criminal justice is notoriously—​and necessarily—​selective. By that I mean that only a small proportion of international crimes and their alleged perpetrators can be selected for prosecution. This overarching selectivity is composed of two sub-​forms of selectivity: atrocity selectivity and case selectivity. Atrocity selectivity refers to the fact that only a small proportion of atrocities will be subject to any sustained prosecutorial attention, particularly international prosecutorial attention.45 Case selectivity refers to the fact that, even when an atrocity does become targeted for prosecutions, only a small proportion of those who have committed crimes as part of that atrocity can be prosecuted. Fiscal constraints explain both forms of selectivity. Specifically, international crimes are typically perpetrated by large numbers of offenders, and the prosecution of these offenders costs vast sums of money. Previously, I calculated that by 2013, the then-​extant international criminal tribunals had spent approximately $21 million USD per defendant prosecuted (Combs, 2015b). Certainly, costs could be reduced by employing more efficient procedures and by

44  See, for instance, Gotovina (Judgement) Case No. IT-​06-​90-​A (16 November 2012). Some claimed that the United States pressured ICTY judges (Van Schaack and Slye, 2015). 45  Domestic courts exercising universal jurisdiction can prosecute alleged mass atrocity offenders whom they find on their territory. Thanks to universal jurisdiction, therefore, some alleged offenders in locations such as Syria and Iraq have been prosecuted even though there is no international capacity to prosecute crimes in those locations (Kersten, 2019). Amos, D. (2021) “Landmark Verdict In Germany Sentences Syrian For Aiding Crimes Against Humanity.” NPR, 24 February. Available at: https://​www. npr.org/​2021/​02/​2 4/​970663111/​landmark-​verdict-​in-​germany-​s entences-​syrian-​official-​for-​crime-​ against-​humanity (Accessed: 28 June 2021); Jordans, F. (2021) “Conviction in landmark case over Syrian government torture.” AP News, 24 February. Available at: https://​ apnews.com/​ article/​ state-​ courts-​ bashar-​assad-​crime-​germany-​courts-​b7bd09dd16168fff3980d5e4850aa8fd (Accessed: 28 June 2021).

632   Nancy Amoury Combs making greater use of less-​expensive domestic courts. However, mass atrocity prosecutions are necessarily expensive, so even if no other obstacles to prosecutions existed, resource constraints would limit prosecutions to a small subset of available atrocities and an even smaller sub-​subset of culpable offenders. The fact that there are so few mass atrocity prosecutions relative to mass atrocity offenders undermines the effectiveness of prosecutions by reducing the likelihood that they will advance the ends traditionally attributed to them.46 Mass atrocity prosecutions cannot deter future crimes, commentators note, if there are so few of them that offenders have little reason to fear that they will be targeted (Ku and Nzelibe, 2006). Likewise, incapacitation goals can only be achieved if a substantial proportion of offenders who foment continued violence are in fact incapacitated (Combs, 2007). Nor can mass atrocity prosecutions effectuate retribution if too few are undertaken. As Mark Drumbl (2007, p. 151) notes, the international criminal tribunals’ “retributive function is hobbled by the fact that only some extreme evil gets punished, whereas much escapes its grasp.” Selectivity would thus reduce ICL’s goal achievement even if there were widespread agreement about which atrocities and cases should be selected, but unfortunately, no such agreement exists, as the following sub-​sections detail. Indeed, these sub-​sections reveal that in a field like international criminal law that is already vulnerable and struggling to maintain its legitimacy, both forms of selectivity are highly corrosive and threaten to substantially reduce the value of the few prosecutions that do take place.

3.2.1.1. Atrocity selectivity As noted, only a small proportion of the mass atrocities that take place around the globe become subject to any international criminal prosecutions, so the processes by which those few are selected take on extraordinary significance. Politics clearly played a role in the UN Security Council’s decision to establish tribunals for the former Yugoslavia and Rwanda. Specifically, the Security Council is a blatantly political body, so it was well understood that the Council’s decision to establish international criminal justice mechanisms would be informed by the geopolitical interests of the Council’s Permanent Five members and their close allies. However, expectations changed dramatically with the creation of the ICC. Certainly, everyone understood that atrocity selectivity would remain, because the ICC would have the resources to address only a fraction of the atrocities over which the new court would have jurisdiction. But the ICC was expected to rise above politics and employ neutral principles to determine which situations to target. The ICC maintains that it has done just that (Moreno-​Ocampo, 2008), and some empirical scholars concur (Smeulers et al., 2015), but the Court’s predominant focus on Africa convinced African states that the ICC applies a discriminatory double standard (Marquand, 2009), or worse, promotes “colonialism, slavery and imperialism” (Kimani, 2009, p. 13; Kaye, 2011). Indeed, the African Union (AU) became so incensed about the ICC’s perceived partiality that it took a series of actions designed to significantly undermine the Court. These included repeatedly asking the Security Council to defer the Darfur47 and 46 

I have treated this subject at longer length (Combs, 2007). and Security Council. (2008) Communiqué on the 142nd Meeting. Available at: http://​ hdl.handle.net/​10427/​77961 (Accessed: April 19, 2019); Peace and Security Council. (2009) Communiqué on the 175nd Meeting. Available at: http://​archives.au.int/​handle/​123456789/​2303 (Accessed: April 19, 2019); 47 Peace

International Criminal Justice    633 Kenya48 situations and instructing AU member states to ignore ICC directives to surrender Sudanese President al-​Bashir.49 The AU’s opposition culminated in a 2017 call to member states to engage in a mass withdrawal from the ICC.50 The controversy surrounding the selection of ICC situations in general and the ICC’s loss of African support in particular constitutes a potentially serious blow, both practically and symbolically. As a practical matter, the AU’s opposition has undercut the ICC’s ability to carry out its investigations and prosecutions in Africa, emboldening states already inclined to flout ICC orders, and undermining states that generally comply with their ICC obligations (Rodman, 2019). The ICC’s efforts to rebut claims of racism and partiality—​by targeting globally powerful states such as Russia, Israel, and the United States—​have given rise to additional practical problems stemming from the ICC’s inability to actually carry out investigations against those globally powerful states.51 Finally, African opposition to the ICC has had negative symbolic repercussions, because it contradicts the inevitable march-​ of-​progress narrative that previously surrounded international criminal law in general and the ICC in particular. Substantial opposition—​including threats of mass withdrawals—​ from a regional block with a large proportion of states parties unquestionably signifies a serious setback for a project whose legitimacy derives largely from its universality.

3.2.1.2. Case selectivity As noted earlier, the high cost of mass atrocity prosecutions means that, in most instances, only a small proportion of offenders of any given mass atrocity can be prosecuted.52 This, in itself, is a problem, because, as mentioned, it undermines ICL’s ability to achieve the goals expected of it. Additionally, when prosecutors can target only a handful of offenders—​out of a pool of thousands or tens of thousands—​they have difficult choices to make. Should

Peace and Security Council. (2010) Communiqué on the 3 February 2010 Judgement of the International Criminal Court of Appeals Chamber on Darfur. Available at: https://​issafrica.s3.amazonaws.com/​site/​ uploads/​4FevcommEng.pdf (Accessed: April 19, 2019). 48 

“African Union Urges ICC to defer Uhuru Kenyatta Case.” (2013) BBC News, October 12. Available at: https://​www.bbc.com/​news/​world-​africa-​24506006 (Accessed: May 31, 2019). 49  African Union. (2010) “Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/‌​‌AU/‌​‌DEC.270(XIV) on the Second Ministerial Meeting of the Rome Statute of the International Criminal Court (ICC).” ‌AU/‌​‌Dec.296(XV) (27 July 2010). 50  African Union. (2017) “Decision on the International Criminal Court” AU/​Dec.622(XXVIII) (30–​ 31 January 2017). 51  Both Israel and the US have vehemently opposed the ICC’s investigations and have promised to obstruct the Prosecutor in every way possible. Kershner, I. (2021) “I.C.C. Will Investigate Accusations of War Crimes in Israeli-​Occupied Territories.” N.Y. Times, 3 March. Available at: www.nytimes.com/​ 2021/​03/​03/​world/​middleeast/​israel-​palestinians-​gaza-​icc.html (Accessed: 28 June 2021); Imad, B. (2021) “Israel Rejects Authority of ICC to Investigate Possible War Crimes.” Jurist, 10 April. Available at: www. jurist.org/​news/​2021/​04/​israel-​rejects-​authority-​of-​icc-​to-​investigate-​possible-​war-​crimes (Accessed: 28 June 2021). During the Trump Administration, the United States manifested its intense opposition to the ICC by imposing wide-​ranging sanctions on ICC officials. Exec. Order No. 13928, 85 Fed. Reg. 36139 (11 June 2020). 52  The Rwandan Genocide constitutes the only recent exception to this rule. In order to quickly prosecute large numbers of genocide suspects, Rwanda utilized an indigenous dispute resolution mechanism that curtailed a number of fair trial rights, including the right of legal representation (Paust, 2011).

634   Nancy Amoury Combs they focus solely on the gravity of the crimes when selecting offenders, even if doing so means that offenders from only one side to the conflict will be prosecuted (Akhavan, 1998)? Or should they allocate their meager prosecutions among all parties to the conflict even though doing so will require them to prosecute less-​grave crimes and less-​culpable offenders (Rastan, 2010)? And what about traditionally under-​prosecuted crimes, such as those involving sexual violence or the destruction of cultural property? Should prosecutors seek to balance the scales, as it were, by bringing those prosecutions even though it will be at the expense of crimes that arguably cause greater and more lasting harm, such as murder (Carson, 2012; Bowcott, 2016; Jayaraman, 2017)? Moreover, even if prosecutors select cases primarily on the basis of the gravity of the crimes, as the ICC Prosecutor claims to do,53 they still must decide by what measure to assess gravity. The ICC Prosecutor, for instance, assesses gravity by means of both quantitative and qualitative elements and considers, among other things, “the scale, nature, manner of commission, and impact of the crimes.”54 That sort of holistic approach sounds very sensible, but it provides very little guidance to prosecutors who must still decide what each of those terms mean and how they should be weighed against one another when they conflict. Should prosecutors prioritize cases involving a brief, high-​intensity set of crimes over cases involving a longer-​lasting, low-​intensity set of crimes, or vice versa? Similarly, the vulnerability of victims and the number of victims are both factors that ICC prosecutors frequently cite in their gravity analyses,55 but which is graver: crimes featuring a larger number of less-​vulnerable victims, or crimes featuring a smaller number of more-​vulnerable victims? And prosecutors must also determine the case-​selection relevance of a suspect’s official position.56 Intuitively, we tend to think that higher-​level defendants are more worthy of prosecutions than lower-​level defendants, but victims may be less invested in the prosecution of leaders who are far removed from the physical crimes than in home-​town sadists who are notorious for the brutality they enthusiastically inflicted on local communities (Nouwen, 2013). These case-​selection complexities challenge mass atrocity prosecutions not simply because they make a prosecutor’s already difficult job considerably more difficult. Rather, and more significantly, they drive home the fact that there are no right answers when it comes to mass atrocity case selection. Or, said differently, every decision the prosecution makes will be the wrong decision in the eyes of some important constituency (Robinson, 2015). The ICTY’s first Prosecutor, Richard Goldstone, adopted a case-​selection strategy that prioritized the prosecution of low-​and mid-​level offenders both because he hoped thereby

53 ICC Office of the Prosecutor (2006) Policy Paper on Case Selection and Prioritisation. Available at: https://​www.icc-​cpi.int/​nr/​rdonlyres/​d673dd8c-​d427-​4547-​bc69-​2d363e07274b/​143708/​ prosecutorialstrategy20060914_​english.pdf (Accessed: April 19, 2019); Office of the Prosecutor (2009) Regulations of the Office of the Prosecutor. Available at: https://​www.icc-​cpi.int/​nr/​rdonlyres/​fff97111-​ ecd6-​ 40b5-​ 9cda-​ 792bcbe1e695/​ 280253/​ iccbd050109eng.pdf (Accessed April 19, 2019); Office of the Prosecutor. (2016) “Policy Paper on Case Selection and Prioritisation.” Available at: https://​www.icc-​ cpi.int/​itemsdocuments/​20160915_​otp-​policy_​case-​selection_​eng.pdf (Accessed: April 19, 2019) (ICC OTP Policy Paper on Case Selection 2016). 54  ICC OTP Policy Paper on Case Selection 2016, paras. 35, 37. 55  ICC OTP Policy Paper on Case Selection 2016. 56  ICC OTP Policy Paper on Case Selection 2016.

International Criminal Justice    635 to gain the evidence necessary to prosecute higher-​level offenders and because he thought that prosecuting military and political leaders at the Tribunal’s outset would be too complicated and time consuming (de Vlaming, 2012). Goldstone was stridently criticized for not targeting higher-​level offenders (Cassese, 2004; deGuzman, 2012).57 Yet when the ICC’s Prosecutors aimed for the stars and brought charges against sitting presidents,58 former presidents,59 and other top-​level political leaders,60 they were likewise stridently criticized for their ambitions when the prosecutions subsequently—​and somewhat predictably—​ failed (Oette, 2010; Vinjamuri, 2016; Rodman, 2019).

3.2.1. Evidentiary impediments The second fundamental challenge facing international criminal justice is an evidentiary one. Put simply, reliable, credible evidence of defendants’ liability for international crimes is hard to come by. Many factors account for this difficulty. Insecurity and instability prevail in the aftermath of some mass atrocities, so investigators are unable to visit crime sites or to ensure witness safety when they do visit crime sites (Nouwen, 2013; Combs, 2018). Indeed, that insecurity led some ICC investigators to delegate crucial investigative tasks, such as witness interviews, to local intermediaries. Doing so proved disastrous, as the intermediaries were unable to generate credible, reliable evidence, and the ICC’s first few trials consequently featured serious evidentiary deficiencies. Delaying prosecutions until the conflict ends and the region stabilizes can ameliorate the evidentiary difficulties that stem from insecurity, but it can create other problems. Delays, for instance, allow perpetrators to destroy or conceal evidence (Whiting, 2009). Delays also raise the likelihood that witnesses will die, documents will go missing, and certain forms of forensic evidence will lose their probative value (Etcheson, 2005; Witteveen, 2010). Finally, because memories typically fade over time61 (Shepherd et al., 1982; Ellis, 1984), delays are also apt to undermine the quality of the witness evidence that is eventually proffered. In other cases, prosecutors have difficulty gathering credible, reliable evidence of a defendant’s liability, because defendants, states, and others obstruct the evidence-​gathering process. Sometimes, they prevent investigators from accessing crime sites, as Sudan and Burundi did with respect to ICC investigations in their respective territories (Combs, 2018).

57 Indeed, ICTY judges subsequently adopted Rule 28A, which required prosecutors to submit indictments to the Tribunal’s Bureau to confirm that they “accuse ‘the most senior leaders’ of international armies” (Cassese, 2004, p. 588). 58  Al Bashir (Warrant of Arrest for Omar Hassan Ahmad Al Bashir) Case No. ICC-​02/​05-​01/​09 (4 March 2009). 59  Gbagbo (Warrant of Arrest for Laurent Koudou Gbagbo) Case No. ICC-​02/​11 (23 November 2011). 60  Ruto (Decision on Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Josuha Arap Sang) Case No. ICC-​01/​09-​01/​11 (8 March 2011); Kenyatta (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussain Ali) Case No. ICC-​01/​09-​02/​11(8 March 2011). 61  However, in Ntaganda (Transcript) Case No. ICC-​ 01/​04-​02/​06-​T-​84-​ENG, 18 April 2016, at 23) expert witness Dr. John Charles Yuille’s provides a description of the hypermnesia of some trauma victims who repeatedly relive their traumatic experiences and thereby retain strong memories of them.

636   Nancy Amoury Combs Sometimes, they ignore requests for documents or other evidence, as Kenya62 and the states of the former Yugoslavia have done.63 And sometimes, they intimidate witnesses to prevent them from testifying or to coerce them into recanting their previous inculpatory testimony, as Kosovar parties did with respect to ICTY prosecutions64 and Kenyan parties did with respect to ICC prosecutions (Maliti, 2014).65 Finally, prosecutors sometimes have difficulty gathering credible, reliable evidence of a defendant’s liability because a substantial quantity of such credible, reliable evidence does not exist. This problem is a complex one, and one that I have spent several years researching; suffice it to say here, however, that with respect to many prosecutions, particularly those of mass atrocities that occurred before the widespread use of digital technology, the only probative evidence comes in the form of witness testimony, and much of that witness testimony either fails to answer key questions, contradicts other witness testimony, or is inconsistent with the witness’s previous statements (Combs, 2010). The evidentiary deficiencies just described have combined and coalesced in different ways in different mass atrocity prosecutions, but in one form or another, they have posed a constant challenge. What has not been constant, however, is the judicial response to those deficiencies. For instance, my scrutiny of early ICTR and Special Court for Sierra Leone (SCSL) transcripts and judgements convinced me that those tribunals initially took a somewhat cavalier attitude toward evidentiary deficiencies in the prosecution’s case; thus, they were willing to convict defendants on the basis of contradictory and inconsistent testimony (Combs, 2010). In recent years, by contrast, international criminal judges have shown greater willingness to reject problematic evidence, and even more radically, to acquit defendants. Indeed, my empirical study of ICTR cases throughout that tribunal’s lifespan showed that, over time, ICTR judges became increasingly less likely to credit or rely on prosecution witness testimony, and they became dramatically less likely to credit or rely on such testimony when it was inconsistent with the witnesses’ previous statements or testimonies (Combs, 2017). ICC judges, for their parts, have from the very outset carefully scrutinized prosecutorial evidence. Indeed, Alex Whiting (2015, pp. 137–​138) observed that early ICTY cases were often “very thinly investigated” but that ICTY judges permitted the prosecution considerable “latitude to adjust its case theory during the trial” and “to continue developing

62  Kenyatta (Second decision on Prosecution’s application for a finding of non-​ compliance under Article 87(7) of the Statute) Case No. ICC-​01/​09-​02/​11 (19 September 2016) paras. 17–​27, 38. 63  Kvočka (Prosecution’s Notice of Failure to Obtain Documents) Case No. IT-​98-​30-​PT (9 April 1999). 64  Haradinaj (Appeals Judgement) Case No. IT-​ 04-​84-​A (19 July 2010) paras. 34–​40; Letter dated 23 November 2004 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, addressed to the President of the Security Council, UN Doc. S/​2004/​ 897 (23 November 2004) Annex II, paras. 28–​29. 65 Ruto (Public redacted version of “Prosecution’s request for the admission of prior recorded testimony of [REDACTED] witnesses,” 29 April 2015, ICC-​01/​09-​01/​11-​1866-​Conf + Annexes) ICC-​01/​ 09-​01/​11-​1866-​Red (21 May 2015) para. 2; Kenya Human Rights Commission (2016) Kenya: Termination of Ruto and Sang Case at the ICC: Witness Tampering Means Impunity Prevails over Justice Again. Available at: https://​www.khrc.or.ke/​2015-​03-​04-​10-​37-​01/​press-​releases/​528-​kenya-​termination-​of-​ ruto-​and-​sang-​case-​at-​the%20icc-​witness-​tampering-​means-​impunity-​prevkenya-​termination-​of-​ ruto-​and-​sang-​case-​at-​the-​icc-​witnesstampering-​means-​impunity-​prevails-​over-​justic (Accessed: April 19, 2019).

International Criminal Justice    637 its cases after arrest.” Whiting (2015, p. 140) contrasts ICC judges’ “high expectations” and their inclination to be “extremely exacting in the evaluation of evidence.” This inclination led ICC judges to reject considerable quantities of prosecutorial evidence even in cases that resulted in conviction.66 But even more notably, this inclination led judges to refuse to confirm charges in several cases,67 to acquit after or during trial in other cases,68 and even to acquit on appeal69—​all for lack of credible and reliable evidence. In sum, the failure to adduce sufficient evidence can stem from a variety of causes, but whatever the cause, the stark reality is that the ICC’s prosecution, despite investigating situations involving tens of thousands of killings, rapes, and other atrocities, has been almost entirely ineffective in successfully prosecuting anyone for those crimes. One does not need to be a hardened cynic to recognize that the ICC’s performance must improve if it is to be considered successful—​or even to continue existing.

3.3. Summary Previous sections identified selectivity and evidentiary impediments as two fundamental and pressing challenges confronting mass atrocity prosecutions. Space limitations prevent me from thoroughly discussing others, but plenty exist—​from resource constraints to the refusal of states to cooperate with the ICC. Although these challenges are different in many respects, all have two things in common. First, each of these challenges is extraordinarily difficult to surmount. Indeed, not only do none of them have easy solutions, but at present, some might be considered insoluble. Second, each of these challenges is a challenge largely due to the influence of political considerations. Selecting the appropriate atrocities to investigate would be difficult under any circumstances, but it becomes a serious challenge to the ICC’s legitimacy when it appears that the selection process is strongly influenced by the geopolitical preferences of powerful states. Likewise, gathering credible, reliable evidence of mass atrocities would be difficult under any circumstances, but that difficulty becomes nearly insurmountable when states seeking to impede prosecutions conceal, obstruct, or otherwise prevent investigators from accessing crime sites and interviewing witnesses, all the while that states with political reasons to encourage prosecutions offer unseemly incentives for the provision of inculpatory evidence.70 Indeed, all of these considerations combined suggest that the primary, overarching challenge confronting mass atrocity

66 In

Lubanga, for instance, the Trial Chamber refused to credit the testimony of a single one of the nine child soldier witnesses the prosecution brought to trial (Lubanga (Judgement) ICC-​01/​04-​01/​06-​ 2842 (14 March 2012) para. 479). 67  Mbarushimana (Decision on the Confirmation of Charges) ICC-​ 01/​ 04-​ 01/​ 10-​ 465-​ Red (16 December 2011) para. 14; Muthaura, et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-​01/​09-​02/​11-​382-​Red (23 January 2012) para. 430. 68  Ngudjolo (Judgement) Case No. ICC-​01/​04-​02/​12 (18 December 2012), para. 197; Ruto and Sang (Decision on the Defence Applications for Judgements of Acquittal) Case No. ICC-​01/​09-​01/​11 (5 April 2016); Gbagbo (Transcript) Case No. ICC-​02/​11-​01/​15 (15 January 2019) p. 4. 69  Bemba Gombo (Appeals Judgement) Case No. ICC-​01/​05-​01/​08A (8 June 2018) para. 198. 70  Rwanda has been accused of providing such incentives (Bizimungu (Appeals Judgement) Case No. ICTR-​00-​56B-​A (30 June 2014) paras. 64, 189.

638   Nancy Amoury Combs prosecutions is the divergence between their ideals and their reality. Specifically, mass atrocity prosecutions speak the rhetoric of justice while they are forced to act in the world of geopolitical interests. Indeed, the challenges that I identify are potentially so damaging precisely because they reveal geopolitical influences that ICL rhetoric ignores but has no way of actually eliminating. The ICC was envisioned to be a court of justice; a court that is neutral, principled, and impervious to political influence (Clark, 2018). Over and over, during the negotiating process that led to the ICC’s creation, the most contentious issues concerned the provisions that forced the drafters to choose between the political and non-​political. And over and over again, the drafters opted for independence from political forces. When determining the Security Council’s role in the ICC, the drafters opted to minimize its ability to prevent prosecutions by creating a presumption of prosecution that the Security Council can overcome only when all five Permanent Members unanimously agree to halt proceedings. Similarly, when it came to deciding on trigger mechanisms, the drafters insisted on empowering the Prosecutor to initiate cases proprio motu, because they feared that excluding that power would subjugate the court to the UN Security Council and other political forces. In making these choices, the drafters arguably had no choice at all. Had they self-​evidently subjected the Court to blatant political interests, they would have dramatically undermined the Court’s legitimacy and concomitantly its possibility for success. So, they opted for ostensible neutrality and cloaked the Court in the rhetoric of justice. The problem is that rhetoric is simultaneously both necessary to international criminal justice as a theoretical matter while destructive of international criminal justice as a practical matter. It is necessary because the entire international criminal justice project is premised on its distinction from politics. Indeed, international criminal law bills itself as an innovative movement to impose accountability following mass atrocities, but the imposition of accountability is not itself innovative. For centuries, the victors of warfare imposed accountability on their vanquished for the latter’s misdeeds. What is innovative—​and inspiring—​about the modern-​day international criminal justice project is not its imposition of accountability per se, but its effort to impose that accountability universally and pursuant to neutral principles. The rhetoric of justice, then, seeks to distinguish these principled accountability efforts with the politicized accountability endeavors of the past. The rhetoric of justice is destructive as a practical matter, however, because it detrimentally obscures the reality that its ideals are unachievable at present. Prosecutors pretend that political considerations play no role in atrocity selection, for instance, when we all know that the practical ability to carry out a prosecution must be an important factor in the decision to initiate the prosecution to begin with. International criminal law must pretend to be apolitical, yet its ultimate success is largely predicated on its ability to navigate around the numerous land mines that politics places in its path.

4.  Conclusion As this volume shows, the causes, manifestations, and results of any given mass atrocity are complex and multifaceted. Equally complex and multifaceted are the responses to mass

International Criminal Justice    639 atrocities, and none perhaps more so than the prosecutorial response. To be sure, two decades ago, when the first mass atrocity prosecutions were begun, expectations were high and optimism about the beneficial consequences of mass atrocity prosecutions reigned. Now, 25 years and hundreds of trials later, expectations remain high as commentators expect trials to be free of any sort of political influence, but there is far less optimism that those expectations will be realized. International criminal law scholarship—​reflecting this increasing pessimism—​has increasingly come to recognize the limitations of mass atrocity trials and consequently has submitted those trials to sometimes scathing critiques. These critiques have the potential to provide valuable guidance to those creating and carrying out the work of international criminal tribunals, but to do so, the critiques must situate themselves in the world in which the tribunals actually operate, not the more idealized world in which we wish them to operate. Early international criminal law scholarship presented a distortedly apolitical view of the practice of mass atrocity trials, but current international criminal law scholarship threatens to veer too far in the other direction by criticizing the trials for factors that are beyond their control. Certainly, the selection of atrocities and perpetrators—​among many other issues surrounding mass atrocity trials—​would benefit from more neutral, apolitical processes, but in calling for such processes, we should take care not to undermine the value that our current, albeit flawed, prosecutions provide.

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CHAPTER 27

Sexual Viole nc e as a Practice of Wa r Implications for the Investigation and Prosecution of Atrocity Crimes Kim Thuy Seelinger and Elisabeth Jean Wood1 1.  Introduction After centuries of accepting rape and other forms of sexual violence as inevitable collateral damage during armed conflicts, the past several decades have seen increased attention to the prosecution of these crimes. For example, from 1943 to 1948, the United Nations War Crimes Commission guided several national courts in their prosecutions of rape committed during World War II. Soon after, the International Military Tribunal for the Far East considered ample evidence of sexual violence committed by the Japanese military in its overall convictions of Japanese officers for war crimes. Some decades later, the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) addressed dozens of cases, including the rape and sexual torture of Muslim men, women, and children by Bosnian Serb forces in the early 1990s and of Tutsi girls and women by Rwandan Hutu forces in 1994. In 2002, the Rome Statute of the International Criminal Court came into force with the most expansive consideration of crimes of sexual violence as core international crimes to date.2 More recently, the Extraordinary Chambers in the Courts of Cambodia and the Extraordinary African Chambers convicted high-​ranking Khmer Rouge officials and the former president of Chad, respectively, for international crimes of sexual violence committed during their brutal regimes. 1  We would like to thank Xabier Agirre Aranburu, Mayesha Alam, Magali Maystre, Guenael Mettraux, Mara Revkin, Patricia Viseur Sellers, Alex Whiting, and the editors for their comments. We also thank Julia Uyttewaal for editorial support and Maria Gargiulo for research assistance. 2  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute).

650    Kim Thuy Seelinger and Elisabeth Jean Wood Nonetheless, many armed actors worldwide continue to rape civilians, prisoners of war, and even fellow combatants, sometimes on a massive scale and nearly always with impunity. In his recent annual report to the United Nations Security Council, the UN Secretary-​ General reported that in 2020, 52 armed organizations engaged in rape and other forms of sexual violence against civilians in 18 conflict-​affected countries.3 That rape has now been recognized as a war crime, crime against humanity, and an act of genocide, rather than unavoidable collateral damage of war, is a remarkable achievement of the international women’s movement. That achievement was largely driven by the narrative that, when frequent, rape during war is a strategy. The narrative has been phenomenally successful for several reasons.4 It is sometimes true. It emphasizes that rape is part of warfare, not a private matter. It suggests that not only those who personally commit rape but also their commanders should be prosecuted. And if rape is a strategy, then commanders might be persuaded to end rape—​an appealing prospect. Yet the strategic nature of rape by armed organizations is often presumed, rather than demonstrated (Eriksson Baaz and Stern, 2009; 2013; Wood, 2009; 2012; Agirre Aranburu, 2010; Boesten, 2010). Conventional usage suggests that when rape is a “strategy,” the armed organization (at some level of command) has purposefully adopted it in pursuit of military objectives (Wood, 2018). However, adoption for military objectives is sometimes inferred from its effects, as when widespread rape is followed by the exodus of a people from a region. In these instances, observers presume with little evidence that the exodus was the intended result of a strategy. To be sure, mass rape is sometimes adopted as a strategy precisely for objectives such as ethnic cleansing or forced displacement. But to warrant the term “strategy,” scholars and analysts should show, not presume, its purposeful adoption for military objectives. Moreover, rape and other forms of sexual violence5 may be adopted as organizational policy for other, non-​strategic objectives such as managing the sexual and reproductive lives of combatants (Wood, 2018). These other forms, which include sexual slavery, forced sterilization, and forced nudity, have not received as much attention from either scholars or prosecutors. When some form of sexual violence is a policy, whether strategic or not, it may be authorized by slogans such as “we are engaged in total war” rather than ordered by commanders. Moreover, rape may be committed frequently by members of an armed organization without having been ordered or authorized as organizational policy. If rape is tolerated 3 United Nations Security Council (2020) Report of the Secretary-​ General on Conflict-​Related Sexual Violence. Available at: https://​www.un.org/​sexualviolenceinconflict/​wp-​content/​uploads/​2021/​ 04/​report/​conflict-​related-​sexual-​violence-​report-​of-​the-​united-​nations-​secretary-​general/​SG-​Report-​ 2020editedsmall.pdf. (Accessed: July 4, 2021). https://​www.un.org/​sexualviolenceinconflict/​wp-​content/​ uploads/​2019/​04/​report/​s-​2019-​280/​Annual-​report-​2018.pdf (Accessed: April 28, 2019). 4  This and the next sections draw on Wood (2018). 5  Wartime sexual violence (by combatants) as used here is narrower than conflict-​related sexual violence as used by the United Nations, which includes sexual crimes by non-​combatants in settings of state collapse or a climate of impunity, and sex trafficking in conflict situations; see United Nations Office of the High Commissioner for Human Rights. (2018) Integrating a Gender Perspective into Human Rights Investigations: Guidance and Practice. Available at: https://​www.ohchr.org/​Documents/​ Issues/​Women/​Publications/​GenderIntegrationintoHRInvestigations.pdf (Accessed: May 24, 2019). The concept of pattern of violence comes from Gutiérrez-​Sanín and Wood (2017).

Sexual Violence as a Practice of War    651 but not ordered or authorized by commanders, it occurs as a practice (rather than policy, strategy, or tactic) of war (Wood, 2018). When frequent (and thereby foreseeable), it is driven by gendered social dynamics between combatants as well as by individual combatant gratification. In this chapter, we analyze the implications for the prosecution of international atrocity crimes in light of these recent social-​science findings. We are sensitive to the inevitable challenges of applying social-​science concepts to the principles and practice of international criminal law. However, there is practical value for investigators and prosecutors in expanding our understanding of the many ways and reasons sexual violence occurs in the context of armed conflict and mass violence. We focus on rape (or other forms of sexual violence) as a practice, which poses particular challenges to prosecution. In such settings, investigators and prosecutors will not find records that rape was ordered or authorized—​ rather, they should seek evidence about whether it was tolerated by commanders. Charging sexual violence as a practice calls for specific characterizations of the offense and type of responsibility; because it features complicity, tolerance, and foreseeability, modes of liability such as aiding and abetting, command/​superior responsibility, and joint criminal enterprise are particularly relevant. We first summarize relevant social-​science findings, emphasizing that rape may be frequent without being organizational policy; that when it is policy it may be authorized, not ordered; and that rape as a practice when frequent is driven by gendered social dynamics among combatants (not just individual opportunism) and tolerated by commanders based on their gendered norms and interests. We then turn to the legal implications.

2.  Recent Social-​S cience Findings on Sexual Violence during Conflict: Policy or Practice Perhaps the most important social-​ science finding on wartime sexual violence—​ one also relevant to other settings of mass violence—​is that it varies sharply in form (rape, sexual slavery, sexual torture, etc.), targeting, and frequency across armed organizations (Brownmiller, 1975; Wood, 2006; Cohen, 2013a; 2016; Cohen and Nordås, 2014). On targeting, for example, some organizations target only women and girls, while others target males as well. An important finding is that rape by combatants is not inevitable in war. For example, the Farabundo Martí National Liberation Front very rarely raped during El Salvador’s civil war (1980–​1992)—​even as state forces engaged in widespread rape during massacres and sexual torture of many of those held in detention—​boys and men as well as girls and women (Wood, 2009; Hoover Green, 2016; 2018). There is, of course, severe under-​reporting of rape and other forms of sexual violence in war. However, clear variation is observed after women’s and human rights organizations began intensively documenting its occurrence in the mid-​1990s (Wood, 2014). The documented differences are too sharp to only reflect differences in reporting.

652    Kim Thuy Seelinger and Elisabeth Jean Wood This variation is relevant for the investigation and prosecution of sexual violence during war and other mass atrocities for several reasons. That some armed organizations effectively prohibit rape strengthens the grounds for holding accountable organizations that do not. Variation in form suggests that investigators should consider the full spectrum of sexual violence, including isolated acts of opportunistic rape, rape as a practice, sexual slavery adopted as an organizational policy to manage the sexual and reproductive lives of combatants, and rape committed as an organizational policy in the midst of genocide. A policy of rape or other forms of sexual violence may not be ordered explicitly but may be authorized. The Islamic State, for example, authorized combatants to hold sexual slaves under certain conditions, but did not order them to do so (Revkin and Wood, 2020). In some settings, commanders license sexual violence -​-​and often other violence against civilians -​-​by combining motivating rhetoric (“the gloves must come off,” “we are engaged in total war,” “war without limits,” etc.) with other permissive signals. Such cases may be more common than those in which it is ordered. For example, during the U.S. “war on terror,” leaders explicitly authorized forced nudity as a form of so-​called enhanced interrogation; other forms of sexual violence also occurred (US Department of Justice, 2005; Human Rights Watch, 2011). Taking rape as an example, let us refer to rape purposefully adopted via orders or authorization by an armed organization at some level of command in pursuit of immediate military objectives as rape as a strategy. Rape as a strategy adopted for military objectives is thus a sub-​category of rape as organizational policy. An organization may purposefully adopt at some level of command some form of sexual violence for other-​than-​immediate-​military reasons. Some organizations adopt policies of sexual slavery, forced prostitution, forced marriage, or forced abortion as a way to reward their male combatants and/​or to regulate their sexual and reproductive lives, not as an immediate military strategy (Wood, 2009; 2014; 2018). Examples include the sexual enslavement of Yazidi women and girls by the Islamic State6 and the forced prostitution of the so-​called comfort women held in brothels by the Japanese military during World War II. Forced contraception and abortion within its ranks by the Fuerzas Armadas Revolucionarias de Colombia (FARC) is another example of such regulation.7

2.1. Rape as a practice of war In contrast to rape (or other forms of sexual violence) by armed organizations that order or authorize rape as organizational policy, rape by American soldiers in the Vietnam War was frequent because it was tolerated by U.S. commanders and driven by peer social dynamics—​rape was a practice of war. In the aftermath of the massacre and rape of civilians at My Lai, U.S. soldiers claimed that they had been ordered or authorized to kill civilians but did not make the same claim for the many incidents of rape they described (Brownmiller, 1975; Peers, 1979; Weaver, 2010; Richardot, 2014; Wood, 2018). Several, however, mentioned social pressure from their peers to participate. Very few soldiers were prosecuted for rape.

6  7 

See also Chapter 37 by Kjell Anderson in this volume. See also Chapter 33 by Oliver Kaplan in this volume.

Sexual Violence as a Practice of War    653 Patterns of rape in other wartime contexts are also well characterized as a practice. Dara Kay Cohen (2013a; 2016) argues that gang rape builds cohesion among the bewildered recruits of insurgents and state militaries that rely on abduction and press-​ganging (respectively). Rape in these cases is not purposefully adopted by commanders as policy, she argues. Rather, members of small units participate and insist that all recruits—​including women—​also participate. Soldiers of the ill-​paid DRC military understand rape, broadly tolerated by commanders, as informal compensation (i.e., self-​pay) (Eriksson Baaz and Stern, 2009; 2013).

2.2. Conditions for rape as a practice to be frequent Under what conditions is rape as a practice likely to be frequent? Two conditions must be met: at least some combatants must engage in it, and at least one commander must tolerate its occurrence. Whether these conditions are met depends on the preferences, beliefs, and norms concerning aggression, sexuality, and gender on the part of combatants and commanders.

2.2.1. Why combatants would participate in rape as a practice The first condition—​that some combatants participate—​can be met in two ways. The first is if the organization recruits from a society in which rape or other sexual abuse against civilians in general or a targeted group in particular (e.g., sex workers, gender or sexual minorities, or other marginalized social groups) is already allowed or frequent, and the armed group does not suppress such acts through discipline or socialization. Recruits enter the organizations with beliefs and norms that construct sexual aggression toward these girls and women (and some boys, men, and gender and sexual minorities) as appropriate demonstrations of masculinity. In this case—​that is, when recruits share their social group’s peacetime gender hierarchy, the gendered order in which some masculinities and femininities dominate others (Sjoberg, 2016)—​rape by combatants is on a continuum of sexual violence from peace to war (Wood, 2014). (In contrast, some other scholars place all wartime and peacetime sexual violence on a continuum (Cockburn, 2004; Meger, 2016; Boesten, 2017). The pattern during war reflects those during peace, though it may be more frequent. However, the combatant’s gender norms and hierarchies may reflect socialization within the organization—​a second path to combatant participation. One particularly important finding of recent scholarship provides evidence for the strength of such socialization: in 38 percent of civil wars between 1980 and 2009 with numerous or massive reports of rape, a sustained asymmetry is observed: one side engages in rape; the other does not (Cohen, 2013a; 2016). Characteristics common to that society—​such as patriarchy—​cannot explain such differences. In the case of rape as a practice, the relevant socialization is that among peers. In armed organizations, horizontal social processes—​those among peer combatants—​are often remarkably strong (Winslow, 1999). In the face of loneliness and fear, combatants have strong incentives to conform to the expectations and behavior of their peers, even if participation violates their own norms or the organization’s rules. In organizations that prohibit sexual

654    Kim Thuy Seelinger and Elisabeth Jean Wood violence, such horizontal socialization may be powerful enough to override formal socialization and discipline. When frequent, rape as a practice is driven by such horizontal, gendered social dynamics of peer socialization. Such socialization, which may itself be violent, transforms the recruit’s norms, proclivities, and beliefs and inculcates a new gender hierarchy that supports a significantly higher frequency of rape than in civilian society, often including exceptionally brutal forms of rape. Gang rape is likely to be particularly frequent, a common pattern in civil wars (Cohen, 2013b, 2016). Influenced by these peer processes, female combatants may also participate (Cohen, 2013b). In such cases, such distinct forms, targets, and often, higher frequencies suggest that wartime sexual violence should be understood as a rupture with peacetime patterns. The conditions under which combatant social dynamics support rape as a frequent practice thus include the presence of gender norms and beliefs that support the exercise of rape as a social activity and a gender hierarchy that legitimates the targeting of particular social groups. Rape may be more likely to occur as a practice in units that are unsupervised, deployed far from their home base, or that have been deployed for a long period (Wood, 2018).

2.2.2. Why commanders tolerate rape as a practice Why might at least one commander tolerate violence that is not organizational policy, the second condition for rape as a practice to occur? In some cases, a commander cannot effectively prohibit it: he may have no control over his subordinates or has some control but dedicates those resources to other issues (Butler et al., 2007). In many cases, however, the commander could but does not prohibit rape (Wood, 2018). The reasons may be instrumental: he may think its effective prohibition would be too costly because it would require disciplining otherwise effective subordinates, might divert scarce resources to an issue he sees as unimportant, or might undermine vertical cohesion by lessening the respect of subordinates. Or he may tolerate rape because he is little troubled by the suffering of those targeted, or simply because prohibition is too much trouble. A rogue commander may himself engage in or promote rape in defiance of the organization’s formal norms and rules. Tolerance thus reflects the commander’s own gender norms, beliefs, and gender hierarchy, perhaps as informed by socialization in specialized officer-​training institutions, despite the harm to the organization.

2.3. Telling the difference between sexual violence as a policy and a practice Assessing whether an armed organization that rapes frequently has adopted rape as a policy or tolerates its occurrence is challenging. Whether or not the organization punishes combatants for rape may help tell the difference. If a combatant is punished for not engaging in rape, rape is a policy. (Note that this is a sufficient but is not a necessary condition: in the

Sexual Violence as a Practice of War    655 case that rape is authorized but not ordered, the organization would not punish combatants who do not rape.) If the organization formally prohibits rape yet does not punish it (or punishes it only occasionally) and there is no evidence that it is affirmatively encouraged by commanders, it is likely a practice (but see later). If combatants are punished consistently for rape, it is not a policy. If it nonetheless continues, it is a practice so deeply entrenched (after a period of toleration) that it occurs despite punishment. Evidence that an organization has ordered or authorized forced marriage, sexual slavery, forced prostitution, or rape clearly indicates that it has purposefully adopted that form of sexual violence as a policy, perhaps even as a strategy. Evidence of authorization includes regulation of combatant engagement in these forms of violence, for example, by formally rewarding valor or loyalty with access to victims, by medical inspection or other regulation of enslaved or forcibly prostituted victims, and by issuing rules defining contexts in which the violence is acceptable. (In organizations with weak institutions, what the combatants understand as “policy” may be set by low-​level commanders, not the leadership.) Evidence that combatants engage in rape along narrow lines—​for example, against political but not criminal detainees, or only against “enemy” civilians—​offers some support for the interpretation that it is policy (this evidence is not sufficient, however, as commanders may tolerate rape of some but not all civilians). Evidence that rape is a practice stems from the absence of evidence that it is a policy combined with evidence that it is tolerated by at least some commanders. If combatants engage in rape that does not follow an organizational logic, for example, raping loyal or neutral co-​ethnics, and are not punished, it is more likely a practice rather than a policy. A pattern of uneven engagement in rape across units that does not follow a strategic logic suggests that some but not all commanders tolerate it. Cases of deliberate ambiguity are particularly challenging. A commander may promote rape but in ways that obscure that fact, thereby protecting himself from a record of having ordered or authorized it. In such “atrocity by connivance, . . . [t]‌he intended result . . . is that the subordinate can claim to have acted pursuant to what he believed to be orders, while the superior can claim never to have issued them” (Osiel, 1998, p. 1038). He may do so because he understands it as unacceptable or criminal, or because he believes the orders may be more effectively carried out if combatants feel they can choose to rape (Richardot, 2014). Or he may issue what Richardot (2014, pp. 86–​87) terms a “partial” order (stating an objective without further instructions, a form of ambiguous authorization) that invites combatants to innovate the means, as in the case of the treatment of those detained by U.S. forces since 9/​11. Authorizing as opposed to ordering combatants to rape is therefore important to recognize as a form of policy adoption. Commanders license rape (and often other violence against civilians) by combining motivating rhetoric (“the gloves must come off,” “total war,” “war without limits,” etc.) with permissive connotations. That commanders intend to license rape may be hard to demonstrate, but the sustained combination of motivating rhetoric with no attempt to discipline combatants is strongly suggestive of authorization and therefore policy. Some cases fall in a “gray zone” between practice and policy, as when widespread and sustained toleration suggests implicit authorization as a policy (Wood, 2018). UN investigators found that government-​allied militia groups in South Sudan were being “allowed to rape

656    Kim Thuy Seelinger and Elisabeth Jean Wood women in lieu of wages,” raising the specter that rape had evolved from a practice to a policy.8

3.  Implications for Investigation and Prosecution At first blush, the idea of sexual violence as a practice does not seem to change much with respect to the investigation and prosecution of international crimes. In this section, we start with the reminder that sexual violence never needed to be a strategic, ordered “weapon of war” or an organizational policy for other-​than-​military-​purposes to be an international crime—​its occurrence as a practice may suffice.9 We then highlight three ways the idea of sexual violence as a “practice” nonetheless matters for investigation and prosecution. First, attention to sexual violence as a practice can enrich a gender analysis of a conflict, which may, in turn, improve the detection of international crimes or understanding of their dynamics. Second, attention to sexual violence as a practice may open up a broader range of evidentiary material and investigations strategies. Third, the idea of sexual violence as a practice may have implications for the prosecution of conflict-​and atrocity-​related sexual violence with respect to charging acts, selecting defendants, and characterizing responsibility.

3.1. Is sexual violence as a “practice” an atrocity crime? When we talk about “atrocity crimes” we are generally referring to “core international crimes”: war crimes, crimes against humanity, and acts of genocide.10 In essence, what distinguishes a “regular” crime from an international one in this sense is the existence not just of an underlying criminal act or “crime base,” but whether this act was accompanied by certain “contextual” or “chapeau” elements. These elements differ across the core international crimes. For an individual criminal act to constitute a war crime, it must be a violation of the laws of war.11 The act must generally have taken place in the context of an armed conflict—​though 8 Office of the United Nations High Commissioner for Human Rights. (2016) Report of the Assessment Mission to Improve Human Rights Accountability, Reconciliation and Capacity in South Sudan. Available at: https://​digitallibrary.un.org/​record/​831203 (Accessed: March 13, 2016). 9 In some cases, “opportunistic” sexual violence committed for personal gratification can also constitute an international crime, so long as the elements of the underlying act constitute a crime and the additional contextual elements of war crime, crime against humanity, or genocide are met. This chapter, however, focuses on the relevance of the “practice” concept. 10  This chapter does not address the Rome Statute’s fourth core international crime: the crime of aggression, which was not an operational part of the International Criminal Court’s jurisdiction until July 2018. 11  Rome Statute, Article 7; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention); Geneva Convention for the Amelioration of the Condition of

Sexual Violence as a Practice of War    657 there has been some ambiguity as to what this “nexus” actually requires. At the ICTY, the Kunarac Appeals Chamber offered helpful clarification early on, holding that: The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.12

For an act to constitute a crime against humanity, it must generally be part of a widespread or systematic attack against a civilian population and perpetrated by someone who had knowledge of that broader attack.13 The underlying act (here, some form of sexual violence) need not be widespread or systematic itself—​it must simply comprise part of that broader attack against civilians. The ICTY clarified in its Tadic Appeals judgment that, so long as those fundamental requirements were met, it would not matter if the act were committed for personal motives.14 In addition, the Kunarac Appeals judgement noted that it is not necessary for such an act to be committed in the midst of the attack against civilians to constitute a crime against humanity; it could be committed at some distance.15 Finally, certain offenses may also constitute an act of genocide if committed with the intent to destroy, in whole or in part, a “national, ethnical, racial or religious group.”16 Though rape and other forms of sexual violence are not specifically enumerated in the Genocide Convention, they have generally been characterized as “serious bodily and mental harm” or “imposing measures intended to prevent births.”17 It was the ICTR case of Prosecutor v. Jean-​Paul Akayesu that confirmed that rape and sexual mutilation can constitute acts of genocide so long as they are committed with the requisite intent.18

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention). 12 Judgement, Prosecutor v. Dragoljub Kunarac et al (IT-​96-​23 & IT-​96-​23/​1-​A) ICTY Appeals Chamber, 12 June 2002, para. 58. 13  This definition is reflected in Article 5 of the Updated Statute for the ICTY (2009) and Article 2 of the Statute of the Special Court for Sierra Leone (2002). Other courts’ statutes have included slight variation, for example, Article 7 of the Rome Statute of the International Criminal Court additionally requires knowledge of the broader attack. 14 Judgement, Prosecutor v. Dusko Tadic (IT-​94-​1-​A) ICTY Appeals Chamber, 15 July 1999, para. 248. 15 Judgement, Prosecutor v. Dragoljub Kunarac et al (IT-​ 96-​23 & IT 96-​23/​1-​A), ICTY Appeals Chamber, 12 June 2002, para 100. See also the Decision on the confirmation of charges, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (ICC-​01/​04-​01/​07), ICC Pre-​Trial Chamber, 30 Sep. 2008, para. 380. 16  Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 Dec. 1948) 78 UNTS 277, entered into force 12 Jan. 1951, Art II. 17  See, e.g., Judgement, Prosecutor v. Radovan Karadzic (IT-​95-​5/​18-​AR98bis.1), Appeals Chamber, 11 July 2013, paras 36–​37; see also Judgement, Prosecutor v. Athanase Seromba (ICTR-​2001-​66-​A), Appeals Chamber, 12 March 2008, para 46. 18 Judgement, Prosecutor v. Jean-​ Paul Akayesu (ICTR-​96-​4-​T) ICTR Trial Chamber, 2 September 1998, paras. 507–​508.

658    Kim Thuy Seelinger and Elisabeth Jean Wood Despite slight variation in tribunals’ definitions of these three major categories of international crime, the “strategic” commission of an underlying criminal act—​or more generally, its adoption as organizational policy—​is not technically a requirement for any of them.19 As noted earlier, establishment of a war crime requires demonstration of a connection between the underlying act and the armed conflict, but this nexus does not require proof of a military strategy or organizational policy per se. For crimes against humanity, there are ways for the underlying criminal act to comprise part of a broader attack on a civilian population without being technically “strategic.” For genocide, there must indeed be intent to destroy a target population because of group members’ characteristics or beliefs—​but intent is still not, legally speaking, the same thing as military strategy. (Though, as a practical matter, genocidal acts are typically committed as part of a broader, strategic campaign based on genocidal intent.) These distinctions leave room for acts of violence that are neither strategy nor organizational policy to constitute international crimes, so long as they are shown to meet the contextual elements described earlier. This includes myriad acts of “unstrategic” sexual violence committed by combatants and tolerated though not ordered or authorized by commanders. Looking back to the 1940s, though sexual crimes have not always been prioritized for prosecution as international crimes, tribunals have considered a wide range of sexual offenses for decades. Certainly, many prosecutions of sexual crimes focused on acts that were clearly committed in furtherance of a strategic policy. Take, for example, the thousands of forced marriages orchestrated by the Khmer Rouge in Cambodia between 1975 and 1979 which were part of a nationwide policy to regulate family and increase the country’s population.20 And yet, trials have also involved acts of sexual violence that cannot be characterized as particularly strategic or dictated by organizational policy. The facts of the 1945 trial of General Yamashita Tomoyuki before a United States Military Commission in the Philippines are relevant, despite the “victors’ justice” context in which they were conducted. As David Cohen (2012, p. 15) notes, Yamashita had actually ordered his troops to withdraw from Manila. However, they disobeyed him and stayed on to fight while also allegedly raping and sexually torturing as many as 30,000 women. The Commission found that the sexual crimes committed by Yamashita’s troops were so widespread and so similar that they must have been “secretly ordered or wilfully permitted” (emphasis added) (Cohen, 2012, p. 15). That these acts were neither ordered nor authorized did not matter, Yamashita was still found liable by reason of command responsibility. Decades later, ICTY defendant Radomir Kovač kept four young Bosnian Muslim girls in his apartment, inviting his friends to visit and rape them; he eventually traded a few of these women as gifts or for purchase.21 Just 19  Article 8 of the Rome Statute provides: “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-​scale commission of such crimes.” However, this is a jurisdictional consideration and prioritization policy, not a definitional element of war crimes per se. 20  Summary of Judgement, Case No. 002/​02 Against Nuon Chea and Khieu Samphan (Case file no. 002/​19-​09-​2007/​ECCC/​TC), 16 November 2018, paras. 39–​41. The ECCC Trial Chamber convicted both defendants of crimes against humanity in the form of the inhumane acts of forced marriage and rape in the context of forced marriage. 21 Judgement, Prosecutor v. Dragoljub Kunarac et al (IT-​ 96-​23 & IT 96-​23/​1-​A), ICTY Appeals Chamber, 12 June 2002, para 78. Kovač’s conviction for rape and other crimes was upheld by the ICTY Appeals Chamber in 2002.

Sexual Violence as a Practice of War    659 a few years ago, in the trial of the former President of Chad Hissène Habré, human rights groups documented the routine rape of detainees by prison guards in exchange for medication, food, and other daily necessities.22 None of this was ordered or authorized. None of it furthered a specific military objective or appears to have been a purposely adopted policy. Instead, these practices were arguably committed with peer complicity and tolerated by command.23 International criminal tribunals have long prosecuted sexual violence committed not in furtherance of an official order or policy but by individuals or groups acting with a sense of total impunity.

3.2. Sexual violence as a “practice” and gender analysis Understanding sexual violence as a potential practice of armed actors can enhance the gender analysis of a given armed conflict or situation of mass violence. The UN High Commissioner for Human Rights describes a gender analysis as a tool that helps: recognize, understand and make visible the gendered nature of human rights violations, including their specific and differential impact on women, men and others, as well as human rights violations based on gender that specifically target LGBTI. . . . It also seeks to analyse power relations within the larger socio-​cultural, economic, political and environmental contexts to understand the root causes of discrimination and inequality (p. 7).24

Conducting such an analysis has also become an integral part of the investigation and prosecution of international crimes. For example, in its 2014 Policy Paper on Sexual and Gender-​ based Crimes, the International Criminal Court’s Office of the Prosecutor (OTP) noted that “the Office will apply a gender analysis to all crimes within its jurisdiction, examining how those crimes are related to inequalities between women and men, and girls and boys, and the power relationships and other dynamics which shape gender roles in a specific context.”25 In 2016, the ICC Prosecutor issued the OTP Gender Analysis Guidelines with operational instructions for the different units and phases of the proceedings. A gender analysis can present a more complete picture of how seemingly disparate acts toward women and men together reveal a broader truth of mass violence. For example, men and women may be treated differently in the same moment of conflict. For example, as

22  See p. 234 of Human Rights Watch (2013) La Plaine des Morts: Le Tchad de Hissène Habré. Available at: https://​www.hrw.org/​sites/​default/​files/​reports/​chad1013frwebwcover_​0.pdf (Accessed: November 30, 2015). 23 These sexual crimes contributed to Kovač’s and Habré’s final convictions by the ICTY and Extraordinary African Chambers, respectively. See Judgement, Prosecutor v. Dragoljub Kunarac et al (IT-​96-​23 & IT 96-​23/​1-​A), ICTY Appeals Chamber, 12 June 2002; Judgement, Ministère Public v. Hissein Habré, Extraordinary African Chambers, Trial Chamber, 30 May 2016. 24 United Nations Office of the High Commissioner for Human Rights. (2018) Integrating a Gender Perspective into Human Rights Investigations: Guidance and Practice. Available at: https://​ www.ohchr.org/​Documents/​Issues/​Women/​Publications/​GenderIntegrationintoHRInvestigations.pdf (Accessed: May 24, 2019) 25  Office of the Prosecutor, International Criminal Court (2014) Policy Paper on Sexual and Gender-​ Based Crimes. Available at: https://​www.icc-​cpi.int/​iccdocs/​otp/​otp-​policy-​paper-​on-​sexual-​and-​ gender-​based-​crimes-​-​june-​2014.pdf (Accessed: May 24, 2019), p. 5.

660    Kim Thuy Seelinger and Elisabeth Jean Wood Michelle Jarvis (2016, p. 11) explains about the events in Foča in the former Yugoslavia from April 1992 to January 1994, Bosnian Muslim men and women were treated differently: men (and boys) were illegally imprisoned and kept in inhumane conditions, where women (and girls) were captured, often for sexual purposes. Together, these two disparate and gendered efforts demonstrated a single, larger campaign: the suppression and control of the Bosnian Muslim population. Similarly, when making sense of the violence in Srebrenica in 1995, it was the killings of the men and the expulsions of the women, children, and elderly that together illuminated the broader intent to destroy the Bosnian Muslim community. When viewed in the aggregate, these separate, gendered forms of harm helped prove genocide.26 More recently, in Kenya, a deeper look at local gender norms illuminated the significance behind the genital mutilation of several men during Kenya’s post-​election violence (2007–​2008). The targeted men were members of Kenya’s Luo tribe, the only major tribe in Kenya that does not traditionally circumcise its males. As Luos, these men were imputed to be members of the opposition party, the Orange Democratic Movement (ODM), due to longstanding ethnopolitical alliances between the Luos and ODM. Thus, the OTP’s analysis of Kenya’s post-​election violence informed its understanding of “forced circumcision” of Luo men as a means of individual emasculation that contributed to a broader attempt to exert ethnic and political domination in the wake of the 2007 presidential election.27 Being sensitive to sexual violence committed as a practice can enrich the overall gender analysis of an armed conflict. The implementation of ordered and authorized violence—​ particularly where there is insufficient control or discipline—​is likely rooted in the same gender norms and attitudes that inform troops’ unordered and unauthorized behavior. Underlying gender norms about sex, gender, and power can shed light on why, if ambiguously ordered to “displace” a community or “cleanse” an area, troops may engage in rape or other forms of sexual violence that were not ordered or authorized. Moreover, they will more likely commit these acts if their experience suggests that commanders will tolerate such behavior. Thus, attention to gender norms held by members of an armed group can enhance the detection and understanding of sexual violence they commit as practice and policy alike.

3.3. Sexual violence as a practice and investigations It is not always clear at the outset that an act of sexual violence committed by members of an armed group constitutes a war crime, crime against humanity, or act of genocide. At the beginning of an investigation, everything is fair game. Information about a wide spectrum

26  See,

e.g., Judgement, Prosecutor v. Radislav Krstic (IT-​98-​33-​A), ICTY Appeal Chamber, 19 April 2004, paras. 24–​38. 27  While the ICC Prosecutor had originally proposed that forced circumcision of Luo men be charged as the crime against humanity of “other forms of sexual violence,” the Pre-​Trial Chamber recharacterized these acts as the crimes against humanity of “inhumane acts.” Document Containing the Charges, Situation in the Republic of Kenya, (ICC-​01/​09-​02/​11) ICC Pre-​trial Chamber II, 19 August 2011, paras 24, 32, 33, 63, 69, 74; Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, Prosecutor v. Francis Kirimi Muthaura et al, (ICC-​01/​09/​02) ICC Pre-​trial Chamber, 23 January 2012, paras. 260–​270. (Cases withdrawn or charges not confirmed.)

Sexual Violence as a Practice of War    661 of harms occurring in the affected area must be gathered and analyzed for legal significance and relationship to the broader conflict or attack. This includes seemingly mundane, nonstrategic acts of sexual violence by combatants that may be tolerated by commanders. The idea of sexual violence as a practice thus has implications for both the general investigative approach as a whole as well as the specific evidence collection strategy for crimes of a sexual nature.

3.3.1 General investigative approach As the investigation of international crimes matures as a professional field, one sees the gradual but undeniable reckoning with how to best approach the issue of sexual violence. As the ICTR and ICTY wound down their caseloads, both prosecution teams published reflections as to their past handling of sexual and gender-​based crimes. One key “lesson learned” was to consider sexual and gender-​based violence from the outset of any investigation strategy, including being open to seeing their commission in the wider context of the overall conflict. The ICTR Best Practices document further advises taking a “crime-​based approach” as opposed to a “target-​based approach,” to “ensure that as many perpetrators as possible are identified and a full picture of what happened is developed.”28 Casting the net this broadly from the beginning may catch indicia of sexual violence as a practice by a multitude of perpetrators. This may reveal more about which groups were where, doing what, and when. With this enhanced picture, investigators and prosecutors can better understand the spectrum of violence committed and which perpetrators (and commanders) might be worth further examination. In time, some of these “smaller” or lower-​profile acts of sexual violence committed as a practice by armed groups may yet prove to be war crimes, crimes against humanity, or acts of genocide.

3.3.2. Evidence and proof of sexual crimes In attempting to prove international crimes of sexual violence, investigators and prosecutors have often relied on victim and direct witness testimony. This is for good reason: sexual crimes are not often documented on paper and traditional forensic evidence of rape or sexual violence is hard to collect and preserve in situations of armed conflict (Gopalan et al., 2016, pp. 150–​158). However, reliance on individual testimony can also be riddled with challenges. There are obstacles that exist even in peacetime: survivors may face social and structural barriers to reporting, local police may have insufficient sensitization or capacity to interview and investigate, and proof of these intimate crimes often hinge on a “he said/​ she said” credibility contest (Seelinger and Freccero, 2015). Investigators also consider potential re-​traumatization of victims, security and logistical obstacles related to reaching and engaging witnesses, and securing untainted testimony in the face of multiple interviews by multiple groups operating in a conflict-​affected area (Wiley, 2012, pp. 373–​383). 28  International Criminal Tribunal for Rwanda (2014) Prosecution of Sexual Violence. Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-​Conflict Regions: Lessons Learned from the Office of the Prosecutor for the International Criminal Tribunal for Rwanda. Available at: http://​www.irmct.org/​sites/​unictr.org/​files/​legal-​library/​140130_​prosecution_​of_​sexual_​ violence.pdf (Accessed: May 24, 2019) pp. 28–​30.

662    Kim Thuy Seelinger and Elisabeth Jean Wood For this reason, international crimes investigators and prosecutors have increasingly explored the use of non-​victim-​based evidence to establish crimes of sexual violence. Testimony of eyewitnesses, for example, can help corroborate victims’ accounts, as in the ICTY’s Dordevic case,29 in which witness testimony about the events surrounding a young woman’s unseen rape in the woods was accepted as circumstantial evidence (Gopalan et al., 2016, p. 150). Other eyewitnesses can provide insights as to the nature or systematicity of violence, as in the case against Hissène Habré, when former detainees testified about the sexual violence suffered by their fellow inmates.30 Expert witnesses, though infrequently used to prove sexual violence directly, can help to bolster witness credibility, as in the ICTY’s Furundžija case,31 where an expert explained the effects of PTSD on memory (Gopalan et al., 2016, p. 152). Documentary evidence, also rare in proving sexual violence specifically, has nonetheless helped to prove either the occurrence of sexual violence, as with organizational reporting about rapes of detained women, or that a commander had been informed (as in writing) of the commission of sexual crimes (Gopalan et al., 2016, pp. 155–​156). Even forensic evidence of sexual violence, though rarely used thus far in international crimes cases, once helped ICTY prosecutors prove the sexual assault of two girls who had been thrown into a well.32 Finally, by using largely open-​source evidence—​often publicly available reporting by human rights organizations—​prosecutors can present broader patterns of violence (including sexual forms) to shed light on contextual elements of international crimes or establish linkages to high-​level defendants. Cautious use of authenticated open source information to establish patterns of violence can decrease the reliance on witness testimony. For example, Xabier Agirre Aranburu (2010, pp. 618–​621) notes the use of sampling surveys, clinical data from medical facilities, and public news reports to help identify patterns of sexual violence. Awareness that sexual violence may be frequent as a practice can widen the aperture of this evidence collection. For example, in seeking to understand whether and how an armed group engages in sexual violence as a practice, social norms among members of that armed group—​particularly those concerning gender—​become highly relevant. This should prompt investigators to seek out new sources of background information. These might include sociological literature on gender norms in a home region or specific military culture; public health data regarding rates of gender-​based violence or sexual exploitation in a group’s home context; insider accounts of recruitment and hazing rituals associated with an armed group; and even social media content uploaded by group members. While background information cannot generally be used to implicate specific individuals in specific crimes, these data can enrich investigators’ understanding about forms of sexual and gender-​based violence a group may conduct and condone—​even beyond what is ordered or authorized. This can, in turn, enrich questioning, pattern recognition, and “crime base” evidence collection. 29 Judgement, Prosecutor v. Vlastimir Dordević (IT-​05-​87/​1-​T) ICTY Trial Chamber, 23 February 2011.

30  See, e.g., Testimony of Clément Abaifouta, Tuesday 9 November 2015, Ministère Public v. Hissein Habré, Extraordinary African Chambers, 30 May 2016. 31 Judgement, Prosecutor v. Anto Furundžija et al (“Čelibići case”) (IT-​95-​17/​1-​T), ICTY Trial Chamber, 10 December 1998. 32  See Gopalan et al. (2016, p. 158), citing Judgement, Prosecutor v. Milan Milutinović et al. (IT-​05-​87-​ T), ICTY Trial Chamber, 26 Feb. 2009, paras 645, 688–​689, 1224.

Sexual Violence as a Practice of War    663

3.4. Sexual violence as a practice and prosecution While most international crimes prosecutions, including those for sexual violence, have focused on incidents committed as part of a “policy,” it is also important to consider sexual acts that are tolerated but not ordered or authorized, and often driven by peer social dynamics informed by gender norms and hierarchies. Exploration of whether sexual violence occurred as a practice may open up slightly different prosecutorial opportunities and approaches. These include how underlying acts are charged, the choice of defendant and type of responsibility, and securing the possibility of prosecution under domestic penal laws.

3.4.1. Characterizing (charging) sexual violence Sexual violence can be characterized as an international crime implicitly or explicitly under international criminal law (Sellers, 2008). Implicitly, sexual crimes can be cloaked by euphemistic charging language or treated as component harms of broader crimes. Explicitly, sexual acts can be charged directly and independently as war crimes or crimes against humanity. We have seen two basic ways of implicitly charging sexual violence as an international crime. First, through the early part of the 20th century, sexual violence was referenced through euphemistically worded charging (e.g., the war crime of “outrages upon personal dignity”).33 At other times, charging of specific sexual crimes has resembled a Russian nesting doll. That is to say, acts of sexual violence have been characterized as inner components of acts of a broader crime, which is then cast as a war crime or crime against humanity or form of genocide depending on the circumstances under which the underlying act occurred. For example, before the ICTY and the Extraordinary Chambers of the Courts of Cambodia, we saw rape cast as a form of torture, where the torture was itself then characterized as the overall crime against humanity.34 Similarly, as noted earlier, we have seen rape characterized as “serious bodily or mental harm,” a constitutive act of genocide, or as the war crime of “outrages upon personal dignity.”35 We have seen forced marriage characterized as the crime against humanity of “inhumane act.”36 In these scenarios, the direct act of sexual violence (e.g., rape) is proven, but is then either shown as a component of a broader crime with specific subjective and objective elements (e.g., “rape as persecution as a crime against humanity”) or placed into context with other acts that, together, comprise

33  For excellent discussions of early attempts to prosecute sexual crimes under international law, see Cohen (2012) and Askin (2003). See also discussion of the work of the UN War Crimes Commission in support of national prosecutions after World War II by Plesch et al. (2014). 34 See, inter alia, Judgement, Prosecutor v. Kunarac et al (IT-​96-​23 & IT-​96-​23/​1-​A), ICTY Appeals Chamber, 12 June 2002; and Judgement, Prosecutor v. Kaing Guek Eav (001/​18-​07-​2007/​ECCC/​TC), ECCC Trial Chamber, 26 July 2010. 35 See, e.g., Judgement, Prosecutor v. Jean-​ Paul Akayesu (ICTR-​96-​4-​T) ICTR Trial Chamber, 2 September 1998. 36  Appeals Judgement, Prosecutor v. Alex Tamba Brima et al (SCSL-​04-​16-​A) SCSL Appeals Chamber, 22 February 2008, paras. 198–​202.

664    Kim Thuy Seelinger and Elisabeth Jean Wood that broader crime (e.g., [rape + detention + murder + displacement of an ethnic group] = persecution as a crime against humanity).37 Acts of sexual violence can also qualify as stand-​alone crimes where the relevant statute provides. By the 1990s, the statutes underlying the ICTY and ICTR mentioned certain forms of sexual violence specifically. For example, in the case of the ICTY, rape is explicitly noted as a crime against humanity within the jurisdiction of the court.38 Similarly, in the statute establishing the ICTR, Article 3’s list of potential crimes against humanity includes rape.39 The most expansive statutory enumeration of specific sexual crimes appeared in the Rome Statute of the International Criminal Court, which listed not just rape but also sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization as both crimes against humanity and war crimes.40 In addition, it criminalizes “any other form of sexual violence” of comparable gravity as a crime against humanity and, when constituting a grave breach of the Geneva Conventions, it is a war crime.41 The Rome Statute “list” of sexual crimes has influenced domestic legislation of signatory countries as well as hybrid courts. In cases where such stand-​alone provisions exist, these sexual acts can be charged independently as underlying crimes which, if shown to meet relevant contextual elements, may directly constitute crimes against humanity, war crimes, or acts of genocide. Sexual violence that occurs as a practice has been charged and prosecuted in all of these ways. The joined ICTY cases of Kunarac, Kovač, and Vuković42 provide a handy example. Here, the trial court considered broad systems of detention and rape of Muslim women in various buildings around Foča. In addition to having knowledge and participation in that system of violence, the three defendants had also facilitated and engaged in “off-​site” sexual violence. Kovač, in particular, had taken four women from the detention sites and kept them in an apartment, forcing them to perform domestic chores, dance naked, and have sexual intercourse with himself and fellow soldiers. He eventually sold a few of them off as if they were property.43 These “off-​site” crimes were charged both directly (e.g., rape as a war crime and crime against humanity) and as broader crimes (e.g., torture as a war crime and a crime against humanity, and enslavement as a crime against humanity, and outrages upon personal dignity as a war crime).44 These acts—​however characterized—​were committed

37 

For an impressive digest of the treatment of sexual violence crimes at the ICTY, ICTR, and SCSL, see Maystre and Rangel (2012). 38  Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted May 25, 1995) UNSC Res 827(1993), as amended (ICTY Statute), Article 5. 39  Statute of the International Criminal Tribunal for Rwanda (adopted November 8, 1994) UNSC Res 955(1994), as amended (ICTR Statute), Article 3. 40  Rome Statute, Article 7; First Geneva Convention; Second Geneva Convention; Third Geneva Convention; Fourth Geneva Convention. 41  Rome Statute, Article 8(2)(b)(xxii). 42 Judgement, Prosecutor v. Dragoljub Kunarac et al (IT-​ 96-​23 & IT 96-​23/​1-​A), ICTY Appeals Chamber, 12 June 2002. 43 Judgement, Prosecutor v. Dragoljub Kunarac et al. (IT-​ 96-​ 23-​ T), ICTY Trial Chamber, 22 February 2001. 44  There has been some debate as to whether crimes of sexual violence should be incorporated into broader crimes or charged and prosecuted in and of themselves. Upon reflection of best practice, ICTY prosecutors note that there are important reasons to characterize sexual crimes both ways, depending on the case and defendant at hand. See Baig et al. (2016).

Sexual Violence as a Practice of War    665 not pursuant to a specific strategy or organizational policy, but rather enabled by a few specific individuals while tolerated, even enjoyed, by countless others. In the recent case against Bosco Ntaganda,45 the ICC Trial Chamber considered whether alleged acts of sexual violence committed by his soldiers met the “coercion” requirement for rape as a war crime or crime against humanity. It found in the affirmative, noting times soldiers had taken over and occupied villages, creating a “coercive environment” in which they summoned young girls from the road for sexual intercourse. These rapes occurred in the aftermath of the attacks on the villages and while the soldiers were at rest. They can be described as sexual violence as a practice. Similarly, sexual violence committed as a practice may be characterized as a form of persecution, which may, in turn, constitute a crime against humanity before certain tribunals. In terms of subjective and objective elements, persecution generally requires some deprivation or violation of fundamental human rights, motivated by a person or group’s political, racial, national, ethnic, or religious identity. Notably, the Rome Statute also includes persecution based on gender.46 Unordered, tolerated acts of sexual violence might thus constitute persecution if the direct perpetrator held the required mental state for persecution—​that is, the intent to harm the victim based on at least one of the prohibited grounds. Then, taken alone or in combination with other persecutory behaviors, these sexual acts may together be shown to meet the broader contextual requirements of either a war crime or a crime against humanity. In this way, that instance of mere “practice” may be characterized as (part of) an act of persecution as a war crime or a crime against humanity. This was the case in the ICTY’s Kvocka case,47 where five men were convicted of persecution as a crime against humanity. They were implicated in the persecution of non-​Serbs detained at the infamous Omarska Camp, which included the rape of prisoners based on political, racial, or religious grounds.

3.4.2. Choice of defendants and modes of liability Attention to sexual violence as a practice may expand options regarding whom to charge and how to characterize their responsibility. First, evidence of sexual violence as a practice by members of an armed group may indicate where certain units were permitted, if not encouraged, to abuse. This may in turn promote the indictment of direct perpetrators and their more immediate commanders. While the international tribunals have largely focused on highest-​level commanders due to tribunals’ efforts to try those “most responsible” for atrocities, they have also considered middle and lower-​level actors—​including where their prosecution might help build up cases against those higher in command.48 Consideration of sexual violence committed as a practice may help link those committing violence on the ground up through the various layers of command above them. This may 45 Judgement, Prosecutor v. Bosco Ntaganda (ICC-​01-​04-​02/​06), Trial Chamber, 8 July 2019, para. 945. 46 

See, for example, Rome Statute, Art. 7.1.h. Prosecutor v. Miroslav Kvočka et al. (IT-​98-​30/​I-​T), ICTY Trial Chamber, 2 November 2001. See also Askin (2004, pp. 16–​19). 48  Office of the Prosecutor, International Criminal Court (2014) Policy Paper on Sexual and Gender-​ Based Crimes. Available at: https://​www.icc-​cpi.int/​iccdocs/​otp/​otp-​policy-​paper-​on-​sexual-​and-​ gender-​based-​crimes-​-​june-​2014.pdf (Accessed: May 24, 2019), p. 5. 47 Judgement,

666    Kim Thuy Seelinger and Elisabeth Jean Wood be prudent in light of the 2018 appeals judgment in the ICC case of Prosecutor v. Jean-​Pierre Bemba Gombo, discussed later, which controversially seems to favor closer, more proximal relationship between commander and subordinate to prove command responsibility.49 The Appeals Chamber’s logic seems to indicate that the ICC OTP might have had more success if it had included lower-​ranked, more locally implicated, commanders.50 Second, the related issue of modes of liability—​or, how capturing sexual violence committed as a practice might implicate certain forms of liability more than others. Members of the ICTY Office of the Prosecutor have reflected on the difficulty they often experienced when trying to connect a specific sexual act to a broader strategy or military policy. They noted the value of moving toward a more contextual analysis, including whether sexual crimes occurred as a practice tolerated by superiors (Wood, 2014; Baig et al., 2016, pp. 172–​173, 217). Such situations highlight the relevance of modes of liability based on certain circumstances: roles of complicity or support, the “omission” of some affirmative duty, and action despite some “foreseeable” consequence.

3.4.3. Command/​superior responsibility One relevant aspect of responsibility is the failure to fulfill some duty to act—​specifically, to prevent, control, and punish. A primary form of “omission liability” is that of command or superior responsibility. Under this theory, superiors are deemed responsible for the acts of their subordinates. Its application generally requires demonstration of the existence of a superior-​subordinate relationship involving “effective control” of the former over the latter; the superior’s knowledge that the subordinate(s) was going to commit or had committed the crime; and whether that commander took all necessary and reasonable measures to prevent or punish the criminal act (Goy et al., 2016, p. 241).51 This principle of liability has been expressed in various cases involving conflict-​related sexual violence, stemming back at least as far as the aforementioned trial of Peter von Hagenbach in 1474. More recently, the ICTY Delalic case resulted in the conviction of a de facto commander of the Celibici prison camp, where subordinate guards sexually violated detainees.52 It was also a basis of liability underlying the initial conviction of Jean-​Pierre Bemba Gombo by the Trial Chamber of the International Criminal Court in 2016, when Bemba—​a high-​ranking leader of the Mouvement de libération du Congo (MLC) from the Democratic Republic of the Congo—​was found guilty of sexual crimes committed by MLC troops stationed in the Central African Republic. However, the conviction was overturned by a controversial appeals judgment in June 2018. A fractured bench ultimately found, inter alia, that the

49 Judgement, Prosecutor v. Jean-​Pierre Bemba Gombo (ICC-​01/​05-​01/​13), ICC Appeals Chamber, 8 March 2018. 50  The Bemba Appeals decision has been energetically debated by several experts, including Leila Sadat, Diane Amman, and Michael Newton on the ICC Forum (Amman et al, 2019). and Alex Whiting (2018). NOTE THAT SADAT /​AMMAN /​NEWTON ALL PUBLISHED SEPARATE BLOGPOSTS ABOUT THE DECISION –​IT IS NOT A CASE OF AMMAN ET AL. I WILL INDICATE IN BIBLIO. 51  See, e.g., Judgement, Prosecutor v. Alex Tamba Brima et al (SCSL-​04-​16-​T), SCSL Trial Chamber, 20 June 2007, paras. 721–​732. 52 Judgement, Prosecutor v. Zejnil Delalic et al. (IT-​96-​21-​T), ICTY Trial Chamber, 16 Nov. 1998, para 736, upheld on appeal.

Sexual Violence as a Practice of War    667 Trial Chamber had erred in its assessment of what measures Bemba could realistically have taken to control and punish distant MLC troops for the crimes (including sexual) they had committed in the Central African Republic.53 Though extraneous to the decision, Judges Christine Van der Wyngaert and Howard Morrison also noted in a much-​critiqued separate opinion that different individuals in the chain of command bear different degrees of responsibility for the actions of ground-​level troops—​with immediate supervisors bearing significantly greater responsibility than distant superiors.54 As controversial as the Bemba decision is, it does not in principle affect the prosecution of sexual violence as a practice: sexual violence as a practice is not distinct from strategic sexual violence for purposes of command responsibility, which does not assume the direct perpetration or criminal intent of the commander at all. The Bemba separate opinion does note that, while usually commanders should only be held responsible where they were aware that specific subordinates were “about to” commit crimes, they may still be on effective notice (“should have known”) where the commander is aware of a past pattern of criminal conduct among certain troops.55 This could presumably include knowledge of troops’ frequent commission of sexual violence as a practice.

3.4.4 Aiding and abetting Because of the highly social dimensions of sexual violence as a practice, some degree of peer complicity is often present. This might come in the form of “aiding or abetting,” which generally includes providing “practical assistance, encouragement, or moral support” to the principal perpetrator.56 The ICTY has noted that even a defendant’s mere presence at the scene of a crime can trigger shared responsibility when his or her presence is “demonstrated to have significant encouraging effect on the principal offender.”57 This was the situation in the ICTY’s Furundžija case, in which the accused was found guilty of aiding and abetting sexual violence because he was present to observe, and tacitly communicated his support for, another soldier’s interrogation and rape of the witness.58 Generally, the requisite mental state for “aiding and abetting” is simply the awareness that one’s own acts (or omissions) somehow assist in the commission of the specific crime by the principal offender.59 As one might imagine in cases of sexual violence committed as a “practice,” this might include peer pressure from fellow combatants or tolerance (albeit reluctant) by commanders. This mode

53 Judgement, Prosecutor v. Jean-​Pierre Bemba Gombo (ICC-​01/​05-​01/​08A), ICC Appeals Chamber, 8 June 2018. 54 Separate Opinion, Prosecutor v. Jean-​ Pierre Bemba Gombo (ICC-​01/​05-​01/​08-​3636-​Anx208-​06-​ 20181/​34ECA), ICC Appeals Chamber, 8 June 2018, paras. 33 and 34. 55 Separate Opinion, Prosecutor v. Jean-​ Pierre Bemba Gombo (ICC-​01/​05-​01/​08-​3636-​Anx208-​06-​ 20181/​34ECA), ICC Appeals Chamber, 8 June 2018, para. 45. 56 Judgement, Prosecutor v. Anto Furundžija et al (“Čelibići case”)(IT-​95-​17/​1-​T), ICTY Trial Chamber, 10 December 1998, paras. 235 and 249. 57 Judgement, Prosecutor v. Mitar Vasiljevic (IT-​98-​32-​T), ICTY Trial Chamber, 29 November 2002, paras. 70–​7 1. 58 Judgement, Prosecutor v. Anto Furundžija (IT-​95-​17/​1-​T), ICTY Trial Chamber, 10 December 1998. 59 Judgement, Prosecutor v. Mitar Vasiljevic (IT-​98-​32-​T), ICTY Trial Chamber, 29 November 2002, para. 71.

668    Kim Thuy Seelinger and Elisabeth Jean Wood of liability may also be relevant where defendants fail to punish sexual violence as a practice, creating an environment of impunity.

3.4.5. Joint criminal enterprise III and common purpose Attention to sexual violence as a practice during an investigation may illuminate patterns of behavior among members of an armed group, which can in turn demonstrate the likelihood or foreseeability of its commission. In this sense, the third form of “joint criminal enterprise,” or “JCE,” has been historically relevant. “JCE-​III” hinges on the idea of foreseeability, attaching criminal responsibility where, in the context of a common design to pursue a specific course of conduct, “one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.”60 Article 25 of the Rome Statute of the International Criminal Court provides for a similar form of individual criminal liability where one intentionally contributes to the commission or attempted commission of a crime by a group of persons acting with a “common purpose.”61 Further, Article 30 outlines the Rome Statute’s general requirements as to mental state, which include the awareness that certain consequences (e.g., sexual violence) will occur “in the ordinary course of events.”62 This suggests the relevance of information about or experience pertaining to an armed group’s tendencies toward sexual violence, which can indicate the foreseeability of its commission. The ICC Katanga case illustrates how evidence of sexual crimes as a practice can be relevant to foreseeability. When determining whether to accept charges of rape and sexual slavery in the case, the majority of judges in the Pre-​Trial Chamber found the existence of a common plan to “wipe out” the village of Bogoro.63 Further, they found “sufficient evidence to establish substantial grounds to believe that, in the ordinary course of events, the implementation of the common plan would inevitably result in the rape or sexual enslavement of civilian women” in Bogoro in the Democratic Republic of the Congo.64 The majority noted, inter alia, that rape and sexual slavery of women and girls constituted a common practice in the Ituri region throughout the armed conflict. Such common practice was widely acknowledged among the soldiers and commanders; combatants were trained (and grew up) in camps in which women and girls were constantly raped and subjected to sexual slavery. The fate reserved for captured women and girls was widely known among combatants, and the suspects and the combatants were aware of which camps and which commanders more frequently engaged in this practice.65 Katanga was ultimately acquitted of these charges because the Trial Chamber found insufficient evidence of his personal responsibility for the rapes committed by his subordinates.66 It is possible that the set of rapes in question was too 60  Appeals Judgement, Prosecutor v. Dusko Tadic (IT-​94-​1-​A), ICTY Appeals Chamber, 15 July 1999, para. 204. 61  Rome Statute, Art. 25. 62  Rome Statute, Art. 30. 63 Decision on Confirmation of Charges, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (ICC-​01/​04-​01/​07), ICC Pre-​Trial Chamber, 30 September 2008, para. 549 (Katanga and Chui Confirmation Decision). 64  Katanga and Chui Confirmation Decision, para. 551. 65  Katanga and Chui Confirmation Decision, para. 568. 66 Judgment, Prosecutor v. Germain Katanga (ICC-​01/​04-​01/​07), ICC Trial Chamber, 7 March 2014.

Sexual Violence as a Practice of War    669 small and too specific; demonstration of his part in a broader system of tolerance of sexual violence as a practice may have been more successful. Judges of Senegal’s Extraordinary African Chambers had also examined the foreseeability of rape and sexual slavery during the 2015–​2016 trial of Hissène Habré, former president of Chad. In the Habré case, evidence indicated that women and children were routinely raped in detention by guards who withheld food and medicine until provided with sexual services. Evidence also demonstrated that, per Habré’s orders, women were sent to military camps in the desert to serve as domestic workers for soldiers. These women were routinely raped and forced into slavery which involved sexual violence. The trial judges found that, given the detention of women in a prison staffed exclusively by men and Habré’s close control of those prisons, rape should have been foreseeable—​particularly in light of alarms raised by international human rights groups. Similarly, when assessing Habré’s decision to send women to the military camps, the trial chamber specifically noted the extreme isolation of the desert camps, the vulnerable status of the displaced women, and the fact that the vast majority of soldiers stationed there were far from their spouses.67 It found that rape and sexual slavery should have been foreseeable in such an environment. These findings contributed to Habré’s conviction for rape and sexual slavery as crimes against humanity, including on the basis of JCE-​III liability.68

3.5. Alternate accountability options The concept of sexual violence committed as a practice may also be useful for prosecution in two other ways. First, sexual crimes that may not ultimately meet the contextual elements of war crimes, crimes against humanity, or acts of genocide may still be charged and prosecuted as crimes under the domestic penal laws. Though losing the expressive value of international criminal law (Van Schaack, 2008), alternate charging of sexual crimes under regular penal law provisions may still provide an opportunity for accountability. A live example of this strategy can be found in Uganda. At the time of writing, former Lord’s Resistance Army commander, Thomas Kwoyelo, currently stands before the International Crimes Division of the High Court of Uganda, where he is charged with 93 counts consisting of international criminal law charges (including charges of sexual violence) paired with alternate charges under domestic penal law provisions.69 Acts of sexual violence committed as a “practice” of war could be thus charged. Additionally, capturing the full spectrum of sexual violence—​whether they constitute a crime at all under any legal framework—​can be a crucial component of other accountability-​ related efforts such as Commissions of Inquiry and broader human rights documentation efforts. The investigation and documentation of sexual violence in armed conflict and 67 Judgment,

Ministère Public v. Hissein Habré, Extraordinary African Chambers, Trial Chamber, 30 May 2016, paras. 2157–​2170. 68 Habré was also found liable under other modes of liability, including JCE II and command responsibility. 69 Amended Indictment, Prosecutor v. Kwoyelo Thomas alias Latoni (Case No. 02 of 2010), International Crimes Division of the High Court of Uganda at Kampala, 2017. In possession of author. Charges confirmed 30 August, 2018.

670    Kim Thuy Seelinger and Elisabeth Jean Wood humanitarian crises, including acts which may be committed casually by armed actors, are essential to document even aside from determining potential charges for justice-​related efforts. For example, the in-​depth fact-​finding reports by the UN Commission on Human Rights in South Sudan and the UN Commission of Inquiry on Human Rights in Eritrea provided tremendous insight into a spectrum of sexual violence perpetrated in those two conflict-​affected areas, including details of rampant, un-​ordered rape and domestic (sexual) servitude committed by civilians and armed actors alike.70 Such reports may certainly provide a basis for future prosecution. But more importantly, they guide policymakers in decisions related to prevention, support, and protection. Documentation of sexual violence as a “practice” is thus essential.

4.  Conclusion In this chapter, we argued that armed actors can engage in sexual violence without its having been purposefully adopted at some level of command as organizational policy in general, or as a military strategy in particular. When frequent as a practice, it is driven by gender norms and hierarchies among combatants and tolerated by at least some commanders. To be sure, rape and other forms of sexual violence are adopted as policy by some armed organizations, including as military strategy. We emphasized that sexual violence as a policy may be authorized but not ordered by commanders. After establishing that sexual crimes that occur as a practice often qualify as core international crimes, we analyzed the implications for investigation and prosecution. That sexual violence as a practice reflects the gender norms and hierarchies of both combatants and commanders reinforces the importance of investigating gender dynamics within armed organizations. Investigation and prosecution informed by gender analysis attentive to these dynamics may illuminate the context of international crimes, the meaning of harms inflicted, and the gendered dynamics that drive their occurrence and toleration. More specifically, our analysis reinforces recent best-​practice emphasis on investigating the full spectrum of sexual violence crimes, including attention to the possibility that some may occur as a practice (in addition to the possibility that they occur as organization policy, perhaps as military strategy). In particular, it emphasizes the importance of documenting gendered social dynamics among combatants as well as gathering evidence of commander tolerance. We argue that sexual violence that occurs as a practice can be charged and prosecuted in a wide variety of ways, including as stand-​alone crimes, as underlying acts contributing to or constituting broader crimes, and even as crimes under domestic penal law where the contextual elements of core international crimes may not be fully met. We emphasized that when rape occurs as a practice, patterns of behavior may be detectable, rendering these

70 

UN Human Rights Council (2016) Report of the Commission of Inquiry on Human Rights in Eritrea, A/​HRC/​32/​47, paras. 48-​49.; UN Human Rights Council (2020) UN Commission on Human Rights in South Sudan. Available at: https://​www.ohchr.org/​EN/​HRBodies/​HRC/​CoHSouthSudan/​Pages/​ Index.asp. (Accessed: February 19, 2020).

Sexual Violence as a Practice of War    671 crimes foreseeable to commanders and collaborators. At least three aspects of responsibility are clearly implicated: complicity or support, the omission of some affirmative duty to prevent or punish, and action despite foreseeable consequences. Sexual violence as a practice therefore implicates certain modes of liability more than others. We suggest that aiding and abetting, command/​superior responsibility, and joint criminal enterprise and common purpose are of particular relevance. By tracing the implications of recent social science analysis of sexual violence during war, we hope that our analysis leads to greater accountability of leaders and combatants, as well as steps toward its prevention.

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672    Kim Thuy Seelinger and Elisabeth Jean Wood Cohen, D.K., and Nordås, R. (2014) “Sexual Violence in Armed Conflict: Introducing the SVAC Dataset, 1989–​2009.” Journal of Peace Research 51(3), pp. 418–​428. Eriksson Baaz, M., and Stern, M. (2009) “Why Do Soldiers Rape? Masculinity, Violence, and Sexuality in the Armed Forces in the Congo (DRC).” International Studies Quarterly 53(2), pp. 495–​518. Eriksson Baaz, M., and Stern, M. (2013) Sexual Violence as a Weapon of War? Perceptions, Prescription, Problems in the Congo and Beyond. London: Zed Books. Gopalan, P., Kravetz, D., and Menon, A. (2016) “Proving Crimes of Sexual Violence.” In: Brammertz, S., and Jarvis, M. (eds.) Prosecuting Conflict-​Related Sexual Violence at the ICTY. Oxford: Oxford University Press, pp. 111–​171. Goy, B., Jarvis, M., and Pinzauti, G. (2016) “Contextualizing Sexual Violence and Linking it to Senior Officials: Modes of Liability.” In: Brammertz, S., and Jarvis, M. (eds.) Prosecuting Conflict-​Related Sexual Violence at the ICTY. Oxford: Oxford University Press, pp. 220–​261. Gutiérrez-​Sanín, F., and Wood, E.J. (2017) “What Should We Mean by ‘Pattern of Political Violence’? Repertoire, Targeting, Frequency, and Technique.” Perspectives on Politics 15(1), pp. 20–​41. Hoover Green, A. (2016) “The Commander’s Dilemma: Creating and Controlling Armed Group Violence.” Journal of Peace Research 53(5), pp. 619–​632. Hoover Green, A. (2018) The Commander’s Dilemma: Violence and Restraint in Wartime. Ithaca, NY: Cornell University Press. Human Rights Watch (2011) “Getting Away with Torture. The Bush Administration and Mistreatment of Detainees.” Available at: https://​www.hrw.org/​sites/​default/​files/​reports/​ us0711webwcover.pdf. (Accessed: July 14, 2011). Jarvis, M. (2016) “Overview: The Challenge of Accountability for Conflict-​Related Sexual Violence Crimes.” In: Brammertz, S., and Jarvis, M. (eds.) Prosecuting Conflict-​Related Sexual Violence at the ICTY. Oxford: Oxford University Press, pp. 1–​18. Maystre, M., and Rangel, N. (2012) “Analytical and Comparative Digest of ICTY, ICTR and SCSL Jurisprudence on International Sex Crimes.” In: Bergsmo, M., Skre, A.B., and Wood, E.J. (eds.) Understanding and Proving International Sex Crimes. Beijing: FICHL Torkel Opsahl Academic EPublisher, pp. 511–​878. Meger, S. (2016) Rape Loot Pillage: The Political Economy of Sexual Violence in Armed Conflict. Oxford and New York: Oxford University Press. Osiel, M.J. (1998) “Obeying Orders: Atrocity, Military Discipline, and the Law of War.” California Law Review 86, pp. 939–​1129. Peers, W.R. (1979) The My Lai Inquiry. New York: Norton. Plesch, D., Sácouto, S., and Lasco, C. (2014) “The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-​Based Crimes Today.” Criminal Law Forum 25(1-​2), pp. 349–​381. Revkin, M.R. and Wood, E.J. (2021) “The Islamic State's Pattern of Sexual Violence: Ideology and Institutions, Policies and Practices.” Journal of Global Security Studies 6(2). doi: 10.1093/​ jogss/​ogaa038. Richardot, S. (2014) “‘You Know What to Do with Them’: The Formulation of Orders and Engagement in War Crimes.” Aggression and Violent Behavior 19(2), pp. 83–​90. Seelinger, K.T., and Freccero, J. (2015) The Long Road: Accountability for Sexual Violence in Conflict and Post-​ Conflict Settings. Available at: https://​www.law.berkeley.edu/​wp-​ content/​uploads/​2015/​04/​The-​Long-​Road-​August-​2015.pdf (Accessed: May 24, 2019).

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CHAPTER 28

Amnesties and T ru t h C omm issi ons Jeremy Julian Sarkin 1.  Introduction States in the wake of conflict and mass violence have, in recent decades, attempted to deal with past human rights abuses in various ways (Weisman 1972, p. 529; Zalaquett, 1992, p. 1425; Sarkin and Davi, 2017a). Since one of the first international truth-​seeking processes in the Balkans in 1912, and especially since the boom in accountability processes and the growth in popularity of truth-​seeking processes over the last few decades, truth commissions (TCs) have become the backbone of transitions toward peace for countries emerging from war and oppressive regimes (Sarkin, 2019a; 2019b). Dozens of truth commissions, hundreds of amnesty processes, and a multitude of other mechanisms have been established to deal with the problems of the past (Sarkin, 2019a). This chapter reviews a variety of issues, many of which remain deeply controversial, concerning TCs and amnesty (Naqvi, 2010 p. 144). While both amnesties and truth commissions are deeply frowned upon in some quarters, they continue to be used frequently by states around the world (Lessa et al., 2014). Possibly 100 truth commissions have been created, while it has been suggested that between 1945 and 2011, there were at least 537 amnesty processes in 127 countries. Of these amnesties, 398 took place after 1979; in other words, most were of more recent vintage (Mallinder, 2012, p. 69). States today are still adopting amnesties (Lessa et al., 2014), and various studies have shown how often amnesties are used.1 Recently, amnesties for politically motivated crimes have been enacted in a number of countries (Sarkin, 2019c). One of the most controversial questions nowadays concerns amnesties for mass atrocity crimes, otherwise known as international crimes. A blank amnesty for such crimes is considered a violation of international (criminal) law (Chigara, 2002). While amnesty is ordinarily a matter of domestic law, it can still breach state’s international obligations 1 See,

for example, research by Boed (2000) on the extensive use of amnesty in Latin America countries.

676   Jeremy Julian Sarkin (Aukerman, 2002). In spite of this, many states continue to grant amnesties regardless of whether they are for atrocity crimes or not. Other states have become more careful in how they enact amnesties so as to not overtly transgress the rule that does not permit amnesty for atrocity crimes. However, when TCs are brought into the picture there is less clarity about what crime amnesty is being granted for. This is because of the way that TCs operate when examining such matters. Usually, when examining what an individual did, a representative will present the facts that occurred but will not specifically determine what the crime is. They almost never state whether the harmful action is an atrocity crime or not. Thus, it is often difficult to determine whether the crime is an atrocity crime. For example, the TC might discuss murders but does not usually say they were genocide or crimes against humanity. This chapter first introduces amnesties and TCs. It then looks at the interrelationship between the two and then examines how amnesties affect the work of TCs, including in countries that previously or simultaneously granted amnesties for all (or some) violent acts. The last section assesses a variety of truth commissions that have had the power to grant amnesty (South Africa) or the mandate to recommend amnesty (Grenada). Throughout the chapter recommendations are made for areas of further research.

2.  Amnesty Generally speaking, a divide exists between those in the Global North who more generally support retributive accountability in the form of criminal trials, while those in the Global South often seek pragmatic solutions that can include the use of truth commissions and amnesties, sometimes at the expense of widespread and robust prosecutions in the wake of mass violence. Countries of the Global South argue that guarantees of non-​repetition demand various means to ensure that violence does not reoccur and, therefore, processes that seek to promote reconciliation, such as amnesties, are necessary (Sarkin, 2008a). While this is not a uniform position, this discussion came to the fore in the academic debate in the early 1990s between Diane Orentlicher (1991; 2007) and Carlos Nino (1991). Some see the use of amnesty as a useful tool to reconcile societies. Others argue that these practices allow perpetrators to avoid culpability. However, as Mallinder (2008, p. 12) stated, “[t]‌he traditional concept of amnesty as ‘amnesia’ is increasingly becoming out-​ dated. Instead, states are finding innovative ways to address past crimes without burying the truth or enforcing widespread retributive justice.” Amnesties should be seen “as important institutions in the governance of mercy, the reassertion of state sovereignty and, if properly constituted, the return of law to a previously lawless domain” (McEvoy and Mallinder, 2012, p. 410). The term “amnesty” itself is ambiguous. Amnesty can be defined as “an act of forgetfulness, an intentional overlooking, a general pardon, esp. for a political offence.”2 It is any “extraordinary legal measure whose primary function is to remove the prospect and consequences of criminal liability for designated individuals or classes of persons in respect 2 

The Oxford English Dictionary, cited in Schabas (2012, p. 176).

Amnesties and Truth Commissions    677 of designated types of offenses irrespective of whether the persons concerned have been tried for such offenses in a court of law” (Freeman, 2006, p. 13, fn. 1). However, it is not only the word “amnesty” that has been used in these contexts; “pardons” and “immunities” have also been employed. Although pardons3 are usually individually granted post-​conviction and amnesty is more common for groups of people prior to conviction, there is a similarity because in both cases illegal conduct is excused (Seibert-​Fohr, 2012). As the UN Rule-​of-​ Law Tools for Truth Commissions points out, “[t]‌he granting of amnesty should not be confused with granting use immunity which is acceptable under international law.”4 Use immunity is, however, much narrower than immunity in general. Use immunity only limits what evidence can be used against a person who is prosecuted (Lundy, 2010). A useful delineation of different types of amnesty is provided by Ron Slye (2002), who distinguishes: (i) amnesic amnesties, which are usually designed to conceal, (ii) compromise amnesties, which occur as a result of negotiations, (iii) corrective amnesties at the conclusion of a conflict, usually to resolve past convictions, and (iv) accountable amnesties, which are enacted to ensure some accountability and some relief for victims (Slye, 2002; McEvoy and Mallinder, 2012). Amnesties can furthermore be employed for an assortment of purposes (Portilla 2014, p. 169). Slye (2002, p. 174) notes that amnesties: . . . have been used to express public grace and forgiveness, and to further government corruption and oppression. They have been used to bring law into compliance with an accepted reality, and to exempt a contested reality from public scrutiny and moral and legal accountability. They have been granted at times of great social stability and at times of great social unrest; at the start of and during wars for the purpose of recruiting troops, and at the end of wars to foster peace and reconciliation.

Blanket or unlimited amnesty gives reprieve to all offenders, for all wrongdoings, that have occurred in a particular period. Blanket amnesties are oftentimes considered unacceptable. For example, the South African Constitutional Court held in the AZAPO case that there is a presumption against a blanket amnesty: The amnesty contemplated is not a blanket amnesty against criminal prosecution for all and sundry, granted automatically as a uniform past of compulsory statutory amnesia. It is specifically authorised for the purposes of effecting a constructive transition towards a democratic order.5

On the other hand, a limited amnesty only deals with specific matters, specific crimes, specific people, or limits which perpetrators may be covered by it in specified ways. Conditional amnesties (Fiddler, 2015), which oftentimes are associated with TCs, are granted only when perpetrators comply with various criteria. Such conditions may include some type of cooperation with the institution that grants or recommends amnesty. There are various categories of conditional amnesty which could be aimed at “surrendering and

3 

For more on pardons, see Sebba (1997). Nations, 2006. Office of the United Nations High Commissioner for Human Rights (OHCHR). Rule-​of-​Law Tools for Post-​Conflict States: Truth Commissions. Geneva: UN, pp. 10-​12. 5  Azanian Peoples Organization (AZAPO) and others v President of South Africa and others, (Judgment) CCT 17/​96, 1996 (8) BCLR 1015, (25 July 1996) para. 32. 4 United

678   Jeremy Julian Sarkin disarming; repenting and providing information on comrades; fulfilling the conditions within prescribed time limits; telling the truth; repairing the harm; participating in community-​based justice mechanisms; and submitting to lustration and vetting procedures” (Mallinder, 2008, p. 154). Conditional amnesties have been commonly used for a variety of purposes (Fiddler, 2015). For example, in the United States, President Gerald Ford in 1974 decreed that amnesty would be available for Vietnam draft dodgers and deserters if they pledged allegiance to the state and worked in the public service for two years (Sarkin, 2017). A similar program occurred in Syria in 2015 (Sarkin, 2018). Conditional amnesties could be advantageous (Naftali, 2016), because they often list the provision of truth as a condition for amnesty (Sarkin, 2017). This is especially beneficial in case of TCs, as they usually rely mainly on statements of victims. Thus, a conditional amnesty ensures that perpetrators are also able to contribute to the work of TCs and share their testimonies (Sarkin, 2019d). Consequently, perpetrators are also held accountable by making their crimes known publicly (McEvoy and Mallinder, 2011, p. 107). While individual states continue to adopt amnesties, a key question that has been extensively researched is whether such practice is compliant with international obligations. While the United Nations (UN) has not always been against amnesties,6 nowadays it usually opposes them (Laplante, 2009, p. 915), in particular in cases of international (mass atrocity) crimes and currently also sexual crimes (Aroussi, 2011). According to the UN, amnesties are “inconsistent with States’ obligations under various widely ratified treaties as well as United Nations policy, and may also be inconsistent with emerging principles of customary law.”7 The UN clearly states that from its viewpoint amnesties are not permissible for certain crimes,8 especially atrocity crimes, which it at times terms “serious crimes.”9 According to the 2001 Princeton Principles on Universal Jurisdiction, “[a]‌mnesties are generally inconsistent with the obligation on states to provide accountability for serious crimes under international law.”10 This approach was also followed in the UN Updated Set of Principles to Combat Impunity, drafted by Diane Orentlicher in 2005, for the Commission on Human Rights.11 There is, however, still ambiguity regarding the legality of amnesties. For instance, The Belfast Guidelines on Amnesty and Accountability12 document compiled by experts outlines different viewpoints and perspectives.

6 

See, for example, Joinet (1985). Nations (2009) Office of the United Nations High Commissioner for Human Rights (OHCHR). Rule-​of-​Law Tools for Post-​Conflict States: Amnesty. Geneva: UN, p. v. 8  Report of the Secretary General, “The Rule of Law and Transitional Justice in Conflict and Post-​ conflict Societies,” report of the Secretary General (23 August 2004) UN Doc S/​2004/​616. 9 United Nations, 2009 Office of the United Nations High Commissioner for Human Rights (OHCHR). Rule-​of-​Law Tools for Post-​Conflict States: Amnesty. Geneva: UN, p. 11. 10 Principle 7, Princeton Principles on Universal Jurisdiction 28 (2001). Available here: http://​ hrlibrary.umn.edu/​instree/​princeton.html (Accessed March 15, 2020) (Princeton Principles). 11  United Nations 2005 Commission on Human Rights ‘Report of the Independent Expert to Update the Set of Principles to Combat Impunity (8 February 2005) UN Doc E/​CN.4/​2005/​102/​Add.1. 12  Transitional Justice Institute (2013) The Belfast Guidelines on Amnesty and Accountability. Available here: https://​peacemaker.un.org/​sites/​peacemaker.un.org/​files/​BelfastGuidelines_​TJI2014.pdf.pdf (Accessed: March 15, 2020) (Belfast Guidelines). 7 United

Amnesties and Truth Commissions    679 That opinions differ is also apparent in the work of Antonio Cassese, a prominent international criminal legal scholar who argued that customary law is not clear on whether amnesties are forbidden (Cassesse, 2003, p. 315). However, the Special Court for Sierra Leone described the amnesty in Sierra Leone as “contrary to the direction in which customary international law is developing.”13 William Schabas, on the other hand, criticized this ruling, arguing that under customary law amnesty is already prohibited (Schabas, 2004, p. 161). In contrast, Meisenberg (2004, p. 851) argued for striking “a balance between impunity and facilitating a peaceful transition for a war-​torn country. Limited and qualified amnesties must be seriously considered in this regard and may not be unconditionally rejected. It is necessary to find valid international parameters for such qualified amnesties as measures of last resort.” In line with its general prohibition against amnesties, the current UN position is that “peace agreements [should] not grant amnesties for war crimes, crimes against humanity, genocide and gross violations of human rights.”14 However, this is frequently not complied with (Stedman, 2002). Amnesties continue to be found in peace agreements, because peace is often seen to be more important than justice (Penman, 2007). Thus, peace versus justice has been a key area of debate (Sriram and Pillay, 2010). There is a difference of opinion regarding the effects of amnesties (Sadat, 2007, p. 231). Some argue that amnesties lead to, or at least promote, impunity that fuels future violence, such as in Rwanda, where some consider the amnesty in the 1960s as having had a direct effect on the genocide in 1994 (Brannigan and Jones, 2009). There are others, however, who see positive results of amnesties (Snyder and Vinjamuri, 2003/​4) and argue that amnesties will result in fewer reoccurrences of violence in the future (Melander, 2009). Those who oppose amnesties do so in part because, at the international level, various international treaties include provisions that require states to prosecute or extradite perpetrators of certain crimes. In other words, these instruments seem to deny the possibility of amnesty for transgressions of these provisions (O’Shea, 2002). Such treaties include the Convention against Torture,15 the Convention on Enforced Disappearances,16 the Genocide Convention,17 as well as the Geneva Conventions and Additional Protocol I to the Geneva Conventions.18 This duty is seen to be absolute (Scharf 1999, p. 516; McEvoy and 13 

Kallon and Kamara (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-​2004-​15-​ AR72(E) and SCSL-​2004-​16-​AR72(E) (13 March 2004) para 82. 14  UN Secretary General “Guidance Note of the Secretary General: United Nations Approach to the Transitional Justice” (10 March 2010) Available at https://​www.un.org/​ruleoflaw/​files/​TJ_​Guidance_​ Note_​March_​2010FINAL.pdf (Accessed: September 10, 2019), p. 10. 15  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (adopted December 10, 1984, entered into force June 26, 1987) 1465 UNTS 85 (CAT), art 7. 16  International Convention for the Protection of All Persons from Enforced Disappearance, (adopted December 20, 2006, entered into force December 23, 2010) 2716 UNTS 3, art 11. 17  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention). 18  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention), art 49; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention), art 50; Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75

680   Jeremy Julian Sarkin Mallinder, 2012, p. 418). For some, the granting of amnesty for these crimes would, therefore, be a breach of the treaty obligation (Scharf, 1999, pp. 515–​516). However, some see the duties in the Geneva Conventions and Additional Protocol I as being limited to only “grave breaches” and even then only if committed during international armed conflicts (Gallagher, 2000, p. 175). This is not a uniform position. Some do not view the prohibition of amnesty in these treaties as being problematic, since these treaties do not impose duties to prosecute all perpetrators or for all instances (Ntoubandi, 2007). For some, the non-​prosecution of those deemed to be not the most responsible19 may not be deemed as problematic.20 Some have argued that there are exceptions to the duty to prosecute. It has been claimed that such a duty does not mean that a government must prosecute all those who have transgressed the treaty. It has also been argued that the exception of “necessity” exists where a “grave and imminent threat” exists (Robinson, 2003, p. 493). In contrast, there is also an international treaty that seems to promote the use of amnesties: Additional Protocol II to the Geneva Conventions.21 The Protocol states in article 6(5) that “[a]‌t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty.” The meaning of this provision is, however, controversial (Gavron, 2002, p. 101). The International Committee of the Red Cross (ICRC) initially found that “[t]he object of this sub-​paragraph is to encourage gestures of reconciliation which can contribute to re-​establishing normal relations in the life of a nation which has been divided.”22 However, the ICRC later changed its view on the article and now contends that this provision is limited to “combatant immunity” (Gavron, 2002, p. 102). This means that “a combatant in an international conflict should not be punished for having been a participant in the conflict as long as he respected international humanitarian law” (Gavron, 2002, p. 102). The ICRC view has however been criticized by some (Roht-​Arriaza and Gibson, 1998, p. 843). Some stress that the ICRC restrictive interpretation is based on limited research and limited evidence of state practice (McEvoy and Mallinder, 2012, pp. 418–​419). Various national courts have used this provision to validate amnesty laws, including El Salvador (Collins, 2010). The compatibility of amnesties with international, regional, and domestic law has been raised before a variety of tribunals and courts. For example, the UN Human Rights Committee considered amnesties covering torture generally incompatible with the duty of states to investigate such acts.23 Amnesties have in fact been successfully challenged in a

UNTS 135 (Third Geneva Convention), art 129; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention), art 146; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 3 (Protocol I), art 84. 19  International Human Rights Law Institute (2007) “Chicago Principles on Post Conflict Justice.” Available at: http://​www.law.depaul.edu/​centers_​institutes/​ihrli/​pdf/​chicago_​principles.pdf (Accessed: January 19, 2016). 20  Belfast Guidelines, p. 37. 21  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (adopted June 8, 1977, entered into force December 7, 1978) 1125 UNTS 609 (Protocol II). 22  ICRC Commentary to article 6(5) of Protocol II, p. 4618. 23 Human Rights Committee General Comment No 20 (44) (art.7), UN Doc. CCPR/​ C21/​Rev.1/​ Add.3.para 15 (April 1992)

Amnesties and Truth Commissions    681 number of national courts as well as before regional systems, especially the Inter-​American system. Thus, the Inter-​American Commission on Human Rights held that amnesties contravene a state’s duty to prosecute, as was seen in Uruguay where the country extended a blanket amnesty. The Commission stated, “[e]‌very society has the inalienable right to know the truth about past events, as well as the motive and circumstances in which aberrant crimes came to be committed, in order to prevent a repetition of such acts in the future.”24 The jurisprudence of the Inter-​American Court (IACHR) on amnesties is extensive (Lapalante, 2009; Basch, 2013). In Barrios Altos v. Peru (2001), the IACHR was one of the first courts to determine that an amnesty law was in violation of international law.25 Significantly, it held that amnesties “are inadmissible, because they prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-​derogable rights recognized by international human rights law.”26 A similar statement is found in the Moiwana Community v. Suriname case27 where the amnesty under review specifically did not cover crimes against humanity. Thus, the type of violation was seen to be a significant issue. While genocide, crimes against humanity, and war crimes are not always specifically mentioned, they would be deemed important in assessing the validity of amnesty. The Court specifically noted in Almonacid-​Arellano v. Chile (2006) that, “[t]‌he prohibition to commit crimes against humanity is a ius cogens rule, and the punishment of such crimes is obligatory pursuant to the general principles of international law.”28 It held further that, “States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.”29 Various scholars and courts have emphasized the link between the jus cogens status of certain crimes and the prohibition of amnesties for those crimes (Sarkin, 2012). According to Bassiouni (2002, p. 397), “[c] rimes against humanity, genocide, war crimes (under conventional and customary regulation of armed conflicts), and torture are international crimes that have risen to the level of jus cogens . . . there can be no statutory limitations for these crimes.” The IACHR not only addressed the duty to prosecute mass atrocity crime but also examined the duty to punish. In Bulacio v. Argentina, the Court found that it “not only rejects amnesty provisions, provisions on prescription, or the establishment of measures designed to eliminate responsibility—​those legal institutions explicitly rejected in Barrios Altos—​but also rejects any domestic legal provision or institution viewed as an obstacle to punishment.”30 It has also held that determining the truth is important for victims and as such is a duty upon which states must deliver. The truth is “no substitute for the duty of the

24 

Inter-​American Commission 1992 Report No. 29/​92. Barrios Altos v. Peru (Interpretation of the Judgment on the Merits) Series C, No 83 (3 September 2001) 26  Barrios Altos v. Peru (merits), para. 41. 27  Moiwana Community v. Suriname (Preliminary Objections, Merits, Reparations, and Costs) Series C, No. 124 (15 June 2005) para. 138. 28  Almonacid-​Arellano et Al. v. Chile (Preliminary objections, Merits, Reparations, and Costs) Series C, No. 154 (26 September 2006) para 99. 29  Almonacid-​Arellano v. Chile, Para 114. 30  Bulacio v. Argentina, (Merits, Reparations and Costs) Series C, No. 100 (18 September 2003) para. 117. 25 

682   Jeremy Julian Sarkin State to reach the truth through judicial proceedings.”31 In other words, truth is not a reason to not prosecute and not a reason to provide amnesty. Amnesties have also been the subject of much academic research and discussions. Many scholars discuss the interaction between amnesties and the International Criminal Court (ICC) (Allan, 2010), and whether and how amnesties and truth commission investigations can affect the work of the ICC as a complementary system of justice (Dugard, 2002, pp. 700–​702; Robinson, 2003; Roche, 2005). While amnesties and their potential effects on the work of the Court were raised during the Rome Conference, “amnesty” is not mentioned in the Rome Statute (Gavron, 2002, p. 106; Gropengießer and Meißner, 2005, p. 267; Robinson, 2003, p. 483). Article 53 of the Rome Statute does allow the Prosecutor not to prosecute if it “would not serve the interests of justice.” Some see this provision as a recognition that amnesties and other such measures aimed to promote reconciliation are to be taken into account when a prosecution at the ICC is being launched (Scharf, 1999, p. 524). There has also been limited research done on the purpose of amnesties. In general, amnesties are equaled to granting impunity32 and their main purpose is considered to be keeping the peace (Cobban, 2007b) or allowing a process of political and social transformation (Teitel 2002, p. 55). Some have adopted a more pragmatic approach to amnesty. Slye (2002, p. 198), for example, notes that amnesty is “the realistic price one has to pay for ending a destructive war or removing a government that has committed gross violations of human rights in the past.” Existing research also focuses on conditions when amnesties can be justifiably used (Mallinder, 2008, p. 14). In this regard, Slye (2002, pp. 245–​246) lists six conditions for a legitimate amnesty. First, it must be created democratically, and for this to occur, it is vital that there is general involvement of the public as well as one branch of a democratic government. Second, war crimes, crimes against humanity, and other severe breaches of international criminal law should be excluded from any amnesty. The third condition is for the amnesty to thrust a form of public procedure or accountability upon those receiving it. Fourth, it must be possible for victims to examine and oppose the claim to amnesty of an individual. Fifth, amnesty should always include some form of tangible benefit. An example of such a benefit is some form of reparation, usually provided for by the state or the person receiving the amnesty. Finally, when creating the amnesty, a more human rights friendly regime must be kept in mind. Either that, or the amnesty must fit into a wide-​ranging program of reconciliation which pursues solving persistent and severe tensions and injustices in society. While there is a tremendous amount of theoretical research on the permissibility of amnesty for atrocity crimes (Slye, 2002, p. 173; Lessa and Payne, 2012; Schabas, 2012, p. 173), amnesty processes have in general been subjected to relatively little empirical research. For example, little is known about the extent and detail about how amnesties are used globally and, within those amnesties, how many people actually receive it and other matters including how many are denied amnesty and the information received as a result of the process. Also understudied are the effects of the amnesty on that society. Some academics

31 

Almonacid-​Arellano v. Chile, para 150. The IACHR has understood impunity as “the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights.” Paniagua-​Morales v. Guatemala (Merits) Series C, No. 37 (8 March 1998) para. 173. 32 

Amnesties and Truth Commissions    683 examine the history of amnesties (Parker, 2001; Close, 2017), but there has been a chronic lack of research on their effects and, in particular, their functioning and aftermath when granted or recommended by truth commissions. It is useful that a number of empirical databases on transitional justice record awarded amnesties including the Peace Agreement Database33 and the Transitional Justice Data database.34 While amnesties in Latin America are well known and have been well researched, that is not the case for other parts of the world. Thus, amnesties have been under-​researched in African and Asian contexts (see Armstrong and Ntegeye, 2006).

3.  Truth Commissions (TCs) Truth commissions have become commonplace and have been more commonly used than other transitional justice processes (Binningsbø et al, 2012) in many places in the Global South (Sarkin and Davi, 2017b). They are also starting to be used in the Global North and have been established in various forms in the United States, Scotland, and Canada. Not all of these bodies would, however, be considered TCs by everyone. What constitutes a TC by definition is not always clear. There are many truth-​seeking bodies, only some of which are considered TCs by some of the scholars studying TCs (Sarkin, 2019b). Thus, some classify about 30 TCs as such, while others list 70 or more institutions. Priscilla Hayner (2001, p. 14) noted four essential features of TCs: (1) they focus on the past, (2) they investigate a pattern of abuses over a set period of time, not specific events, (3) they are temporary in nature, usually operational for periods of between six months and two years, and they complete their work after they submit a report, and (4) they are formally sanctioned, approved, or enabled by the state (and at times correspondingly by armed groups, as determined in a peace agreement). Mark Freeman criticized Hayner’s definition because it included non-​state commissions of inquiries. He argued that TCs are only established by, and authorized by, states (Freeman, 2006, pp. 18–​19). Hayner (2010, pp. 11–​12) redefined a TC as an institution that “(1) is focused on past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorized or empowered by the state under review.” Truth-​seeking bodies have been established by a variety of methods around the world (Hayner, 1994). Some have been created by the United Nations (e.g., El Salvador), international nongovernmental organizations (e.g., Rwanda before the genocide), or domestic NGOs (e.g., Brazil). Governmental commissions have also been established by executive order (e.g., Chile) and legislation (e.g., South Africa). Whether a truth-​seeking body is classified as a TC depends on whether or not it is authorized or sanctioned by a state. This, for many, means that bodies established by NGOs, whether international or domestic, are not official TCs. In the context of amnesties and TCs, however, this is less important, as

33 

34 

Available here: http://​www.peaceagreements.ulster.ac.uk/​ (Accessed: September 11, 2019). Available here: https://​transitionaljusticedata.com/​ (Accessed: March 9, 2019).

684   Jeremy Julian Sarkin only official, state-​sanctioned bodies would have powers to grant or recommend amnesty. However, all of these bodies, whether official or not, are affected by an amnesty if one has been legislated. Depending on the type and scope of the amnesty (blanket, limited, or conditional (Olsen et al, 2010)) it might cause difficulties for any truth-​seeking institution. It might affect who comes forward to testify, whether certain people come forward depending on the crimes they committed, and a range of other issues. As far as TC functions are concerned, Tristan Anne Borer (2006) notes that there are 26 roles for TCs, including the granting of amnesty. However, there are many more functions that TCs can possibly have (Sarkin, 2019b). Many believe that their role largely concerns truth recovery. While that is often true, depending on the mandate and functioning of a TC, they also impact issues of accountability and justice (Hirsch et al., 2012). It must be noted that TCs’ capacity, legitimacy, length of operation, and type of authority, to name a few, differ in each case (Amstutz, 2005, p. 25). Thus, some TCs have many more functions and capacities than others. While many see TCs as playing important roles in transitional processes, they do face certain criticisms. Besides the criticism surrounding the reasons for the establishment of TCs (as a softer option compared to prosecutions and criminal trials) and their mixed results, some of the TCs are critiqued as foreign, out of place with local conditions, unsuited to the specific context, and doing little to empower local communities and capacities (Lundy and McGovern, 2008). However, similar arguments are raised in respect to prosecutions ignoring local understandings of justice (Waldorf, 2006, p. 1).

4.  Truth Commissions and Amnesties Because TCs examine “who did what to whom, when, where, and occasionally why” (Loyle and Davenport, 2016), what they uncover usually impacts whether individuals may be held accountable. While those who critique TCs argue that TCs allow perpetrators to escape accountability, they actually do establish some forms of accountability by establishing the identities of perpetrators such as in South Africa, Timor-​Leste, and elsewhere. This has, however, been the case on only some occasions. While TCs frequently collect names of perpetrators, for a variety of reasons they seldom publish all names, if they publish any at all. A critical issue is always how to get perpetrators to cooperate with TCs. Many situations have seen perpetrators refusing to come forward because they do not trust that they will be given protection once they confess (Bisset, 2017a, p. 173). Thus, perpetrators usually need some legal provision that protects them from prosecution if they are to cooperate with TCs. Generally speaking, the role that amnesties play in the work of TCs is under-​researched. There is theoretical research that examines a range of international law issues concerning TCs and amnesty, but only a few of the works review how TCs have operated in the context of amnesties or how they have used their amnesty powers in practice. Even fewer have reviewed how TCs have used other powers such as that of subpoena or search and seizure (Sluiter, 2009). This is to some extent because there has been little focus on perpetrators in transitional justice generally and in the work of TCs specifically.

Amnesties and Truth Commissions    685 Most of the empirical research on TCs and amnesty focuses on single countries, and within that research much of it has focused on South Africa’s Truth and Reconciliation Commission (TRC) (Sarkin, 2019d). This is understandable in part, as the process was unique in that it was the first commission to have amnesty powers and the only one that was given the mandate to directly grant amnesty. For this reason, South Africa’s model is seen to be central to any discussion on truth commissions and amnesty. There is, however, only limited research on the role of perpetrators in such commissions (Sarkin, 2018). Schmidt (2017) examined, for example, perpetrator testimonies at the TRC, while Krog et al. (2009) looked at perpetrators from perspectives such as trauma and psychology. There has been even less research conducted on the role of women as perpetrators (Gómez-​Barras, 2015, pp. 524–​535). This is changing, however, as there has been increasing research carried out on identifying perpetrators, their motivations, their roles, their attitudes, and a range of other matters.35 The role of the media in covering TCs, and especially perpetrators’ conduct, roles, and testimony, has been limited, with some exceptions focusing mainly on South Africa (Verdoolaege, 2005, p. 191). Part of the reason for the lack of (empirical) research on amnesties and TCs is that few TC reports actually provide much information about how the amnesty process worked. The publicly available information is usually very limited, and few, if any, names are included. In addition to this, the existing TC reports do not provide very much in the way of data or analysis. Little time is spent on the methods and techniques employed and on determing which of these were successful in obtaining information from perpetrators. While some truth commissions, such as the one in Sierra Leone, have gone out of their way to get perpetrators to cooperate, most bodies make very limited attempts to do so and are largely unsuccessful in the quests to involve perpetrators, as is discussed later in the empirical section. Even those that had powers to compel cooperation, such as the South African TRC, did not use those powers very extensively, if at all (Sarkin, 2004). Naming names early in the TC process, as occurred in Sierra Leone, seems to have some benefits as those perpetrators know they are on the radar and need to behave in a manner that avoids further public attention. While perpetrators have been pressed to cooperate by threats of public exposure, little is known about when and where that has occurred beyond anecdotal accounts coming from places such as Sierra Leone. Generally speaking, there has been little research focused on how to increase perpetrator contributions to TCs and on finding ways to get them to participate in these processes (Zvogbo, 2019). More research is needed on how to enhance wrongdoer cooperation. More research is needed on the different types of perpetrators and how distinctions ought to be drawn between the most responsible and others and how that difference affects the practice of TCs. Also, research is needed on the interplay between TCs and other institutions, such as prosecuting authorities, special courts, etcetera as far as amnesties are concerned. While much research exists on the theory of amnesties, only a small number of studies have focused on the actual practice on the ground.

35 

See for example Mohamed (2015).

686   Jeremy Julian Sarkin

5.  How Existing Amnesties Affect the Work of Truth Commissions in Specific States The process of introducing or revoking amnesties in a country can dramatically affect the work of a TC. This is because people will be less likely to cooperate with such a body if they have already been given amnesty or are likely to receive it. For example, the amnesty process in Sierra Leone was established before the TC. The amnesty, specifically the way it was given and then taken away, had dramatic effects on the work of that TC (Meisenberg, 2004, p. 837). Schabas (2004, pp. 152–​153) argues that Sierra Leone’s process indicates that perpetrators came forward without amnesty, while Sarkin (2017, p. 170) maintains that with some exceptions, wrongdoers usually do not reveal what they know and do not cooperate with TCs unless they receive assurances that they do not face legal jeopardy, in other words: some type of amnesty (Sarkin, 2019d). The impact of amnesties on the work of a TC can be seen in various countries. In Argentina, for example, on September 22, 1983, the military government published the so-​ called Law of National Pacification. It granted amnesty for all criminal offenses committed with a political motive or purpose during the period of May 25, 1973, through June 17, 1982 (Mallinder, 2009). However, in December 1983, shortly after his inauguration, President Raul Alfonsin revoked the amnesty law (Zalaquett, 1992, pp. 1422–​23). The Alfonsin government also established a National Commission on Disappearances of Persons. It ran from 1983 to 1984 and examined the period from 1976 to 1983. Thus, no amnesty supposedly existed at the time of the work of the TC, but there was an air of uncertainty about the effects of the earlier amnesty and how that affected the work of the institution. Later developments affected the work and legacy of that truth commission. These included the “Full Stop Law” (Ley de Punto Final) and a new law of “Due Obedience” enacted in 1987. These laws and the general pardons of 1989 and 1990 had negative consequences.36 However, on June 14, 2005, the Argentine Supreme Court struck down the “Full Stop” and the “Due Obedience” laws. The Court found that the two laws were in violation of both the Argentine constitution and international treaties to which Argentina was a signatory. It also found that crimes against humanity have no statute of limitations and cannot be amnestied. By then, however, the work of the TC was long concluded and these developments did not affect its work. The ruling of the Supreme Court did, however, set the stage for the possible prosecution of hundreds of members of the country’s security forces who carried out the abductions, tortures, and murders of leftists, militant workers, students, and other perceived opponents of the military dictatorship (c.f. Brown, 2002). Other countries that had TCs also saw those processes affected by amnesties. These include Brazil and Chile, where amnesties were enacted in 1979. Guatemala also adopted amnesty in 1986 when the military declared amnesty for itself four days before turning over

36  Human Rights Watch (2001) Argentina Reluctant Partner: The Argentine Government’s Failure to Back Trials of Human Rights Violators. Available at: http://​www.hrw.org/​reports/​2001/​argentina/​ argen1201-​02.htm (Accessed: June 27, 2016).

Amnesties and Truth Commissions    687 the government to a democratically elected civilian president. How these affected the TC processes requires further research.

6.  Empirical Research on Specific Truth Commissions with Amnesty Powers The only truth commission that had powers to directly grant amnesty was the South African TRC (Sarkin, 2019d). Other TCs that had the power to recommend amnesty included Grenada, Indonesia, the Democratic Republic of the Congo (DRC), Nepal, Timor-​ Leste/​Indonesia, Liberia, Kenya, South Korea, and Timor-​Leste. This section reviews how amnesty powers were used or not in specific cases where TCs were given some sort of power to either grant or recommend amnesty. For almost all cases, possibly besides South Africa, there is a dearth of information in this respect. Even less is known about the effect of the use of such authority. The section to follow on the different countries provides an overview of some of the issues, but more research is needed on almost all the case studies.

6.1. South Africa The legacy of the South African amnesty process is widely regarded as extremely contentious (Sarkin, 2004) and is the subject of heated debates attracting criticism, questions, and discontent (Sarkin, 2018). While its amnesty process meets many of the aforementioned criteria of Slye (2002) to be an acceptable amnesty, numerous critics are unconvinced as to its legality and legitimacy, partly because the TRC amnestied even the most severe crimes (Sarkin, 2004). It did not distinguish between international crimes and others (Mallinder, 2008). While the South African TRC was mandated to investigate and document gross human rights violations that occurred between 1960 and 1994, and the body itself could give amnesty for all politically motivated crimes (Sarkin, 2008b), there was no reference (or limitation) for atrocity crimes. The Amnesty Committee was entitled to grant amnesty if the act, omission, or offense was related to a political objective, it was committed in the course of conflicts of the past, and the applicant made full disclosure of all the relevant facts. So contentious was the amnesty process that the constitutionality of the amnesty provision was challenged in the courts in the AZAPO case.37 The applicants argued that the amnesty was a denial of their right to claim civil compensation from perpetrators as well as the fact that the state violated their constitutional right to have justiciable disputes settled by a court of law or another independent and impartial forum. However, in its decision delivered on July 25, 1996, the Constitutional Court held that removing civil remedies from

37  Azanian Peoples Organization (AZAPO) and others v President of South Africa and others, (Judgment) CCT 17/​96, 1996 (8) BCLR 1015, (25 July 1996) para. 32.

688   Jeremy Julian Sarkin the victims was not in conflict with the Constitution. In its reasoning, the Court argued that the granting of amnesty is necessary to achieve reconciliation and to facilitate the reconstruction of South Africa. Although the applicants also relied on the argument that the “act violates a peremptory norm of international law,” the Constitutional Court did not refer to international law in determining that the Constitution permits an Act of Parliament to override international law and that international law does not become enforceable in South Africa until it is “incorporated into the municipal law by legislative enactment” (Sarkin, 2004, p. 65). Much has been written on the legality of the amnesty process, mostly from an international law perspective. There has, however, been little research focusing on the fact that the TRC gave amnesty for atrocity crimes (Mamdani, 2002). The research that exists has again been more theoretical in nature. Little was done to actually review whether specific crimes that transgressed South Africa’s international obligations were amnestied. Little has been done to examine the legal nature of the crimes committed empirically. The research has generally reviewed what occurred during Apartheid and contended that crimes against humanity were committed because, for example, Apartheid was declared a crime against humanity (Coleman, 1998). Others argued that other types of atrocity crimes were committed, including genocide and war crimes (Naqvi, 2003). However, the interrelationship between them and amnesty specifically remains under-​researched, with some exceptions (Domb, 1996, pp. 306–​310). The way the amnesty process worked has been subject to some research. However, much of that work is theoretical. Very few have examined the way the process has actually worked in practice (Sarkin, 2004). Some have looked at the obstacles to the process and why only some perpetrators applied for amnesties (Varney and Sarkin, 1997). However, as with other TCs, there has been little research on perpetrators (Foster, Haupt, and de Beer, 2005), their motivations for participating, their roles at these bodies, how they navigated the process, and how and when they benefited from the amnesty process (Anderson, 2018, p. 100).

6.2. Grenada Grenada in 2001 was the first country to adopt a TC model that would have the power to only recommend amnesty to the state (Sarkin, 2019d). This TC was granted the mandate “[t]‌o recommend indemnity to various persons who give what is considered to be truthful evidence at the enquiry.”38 The TC39 interpreted this as being able to favorably consider witnesses “for the grant of amnesty or exemption from prosecution.”40 The provision was, however, not enough to entice perpetrators to come forward and disclose the truth about the violations they had committed. It was acknowledged by the TC that the lack of authority

38 Truth and Reconciliation Commission Grenada: Report on Certain Political Events Which Occurred in Grenada 1976–​1991. (2006) Available at: https://​www.thegrenadarevolutiononline.com/​ trccontents.html (Accessed: September 3, 2017) (Grenada 2006), Volume 1, Part 7. 39  See Dancy, Kim, and Wiebelhaus-​Brahm (2010). 40  Grenada 2006, Volume 1, Part 7.

Amnesties and Truth Commissions    689 to directly apply some form of immunity or amnesty stifled its effectiveness and hampered the Commission’s ability to extract more truth (Sarkin, 2019c). Therefore, the uncertainty that existed regarding whether a person would be legally protected led to perpetrators being unwilling to come forward. The sequence of procedures, namely that a perpetrator would first have to come forward and disclose the truth and only afterward would be considered for some form of indemnity, appeared to have been too uncertain and risky for potential applicants. Again, as with most of the TC processes recommending amnesty, little is known about how the process worked in detail. Most TC reports, including the one in Grenada, devote little space to these issues. In addition, TCs do not detail many of the methods used in this regard to promote perpetrator responsiveness.

6.3. Timor-​Leste The next example of a TC with amnesty powers is the Commission for Reception, Truth and Reconciliation (CAVR), which was established in 2001 in Timor-​Leste (Sarkin, 2008a). The CAVR had the authority to investigate human rights violations committed by all parties between April 1974 and October 1999 (Burgess and Galuh, 2014). Among its tasks, the CAVR had the mandate to facilitate community reconciliation for those who committed less serious offenses (Pierce, 2008). The CAVR had a Community Reconciliation Process (CRP) (McAuliffe, 2008, p. 12) that was aimed at uncovering the truth about what had taken place as well as seeking reconciliation.41 The CRP was established with the idea of creating “a cheaper, faster, less complicated process” (Burgess, 2006, p. 184). It was meant to allow an individual who successfully went through the process to be granted immunity from all civil or criminal liability. In order to do so, the individual was to voluntarily proffer a written statement in which he or she detailed which crimes he or she had committed, and in what way he or she was associated with the political conflict (McAuliffe, 2008, p. 9). Subsequently, the applicant was to give oral testimony on the crimes for which reconciliation was pursued. For an individual to attain such immunity, he or she had to confess to responsibility and carry out an “Act of Reconciliation” (Zifcak, 2004). However, prior to a case being brought before the CRP, the case had to be considered and approved by the Office of the General Prosecutor (Burgess, 2004). The CRP sent all 1,541 statements that it had gathered through to the Office of the General Prosecutor (OGP). Subsequently, the OGP turned down 85 of these.42 All of the cases refused by the OGP concerned perpetrators of a low level who had given the CAVR a detailed testimony without being provided with legal advice or protection (Burgess, 2006, pp. 195–​196). The procedure contained no provisions protecting the individuals from using the information they gave against them, should they be prosecuted (Bisset, 2017b, p.

41 Timor-​ Leste (2006) Commission for Reception, Truth and Reconciliation. “Community Reconciliation.” In Chega! Final Report of the Commission for Reception, Truth and Reconciliation in East Timor. PDF. CAVR, 2005. Available at: http://​www.etan.org/​etanpdf/​2006/​CAVR/​09-​Community-​ Reconciliation.pdf. (Accessed: February 13, 2020) (Timor-​Leste, 2006). 42  Timor-​Leste, 2006.

690   Jeremy Julian Sarkin 160). Perpetrators were under the impression that they did not need this, believing themselves safe by participating in the re-​integration process. Ultimately, it was only the large number of cases that kept them from being prosecuted. Regardless, almost 90 percent of the applicants ended up receiving immunity. Reasons for the last 10 percent, consisting of 170 cases, not being granted immunity, varied from the perpetrator not showing up at their hearing, problems that came to light during hearings, or the OGP disagreeing with the case being continued through the procedure.43 As far as whether this process achieved positive outcomes or not, both McAuliffe (2008) and Burgess (2006) argue that, in general, the CRP process was a highly successful one. Pigou (2004, p. 84) believes that “[t]‌here is a widespread feeling that the CRPs have definitely contributed to building social cohesion and relieving tensions in many places.” Still, Burgess (2006, p. 176) does emphasize that the CRP was a locally designed and operated institution. It is, however, imperative to view the CAVR process and its outcomes as very context-​specific.

6.4. Indonesia–​Timor-​Leste Commission on Truth and Friendship (CTF) Another example of a TC with amnesty powers is the Commission on Truth and Friendship (CTF) that was jointly established by Indonesia and Timor-​Leste. Its mandate consisted of the power to “recommend amnesty for those involved in human rights violations who cooperate fully in revealing the truth.”44 The CTF’s terms of reference stated that anyone who had been involved in human rights violations but now worked together with the CTF to disclose a full truth could be granted amnesty. The CTF would only recommend amnesty if the individual had given the Commission considerable assistance in piecing together the truth. Additionally, the person had to appear in front of the Commission, where he or she had to admit their role and responsibility in the violations (Jeffery, 2016, p. 199). Ultimately, the CTF did not grant amnesty to anyone at all (Jeffery, 2016). In its report “Per Memoriam ad Spem,” the CTF wrote that no “amnesty or rehabilitation for any persons was recommended.”45 The reason behind this lies with the perpetrators who generally took no notice of the process and failed to participate. Neither the provision of closed hearings nor the fact that Indonesia hosted the hearings tempted the perpetrators to volunteer any information. In general, only a relatively small number of people engaged in the procedures. It was noted in the CTF report that out of 280 individuals that were identified as potential

43 

Timor-​Leste, 2006, Part 9 para. 102. UNTAET Regulation No. 2001/​10 S. 14, ss c, i-​iv. 45  Indonesia/​Timor-​Leste (2008) Commission on Truth and Friendship Per Memoriam Ad Spem (‘Through Memory to Hope’) Available at: https://​cja.org/​where-​we-​work/​archives/​timor-​leste-​ east-​timor/​downloads/​Per-​Memoriam-​Ad-​Spem-​Final-​Reeport-​of-​the-​Commission-​of-​Truth-​and-​ Friendship-​IndonesiaTimor-​Leste.pdf (Accessed: February 13, 2020) (Indonesia/​Timor-​Leste, 2008), p. xviii. 44 

Amnesties and Truth Commissions    691 witnesses, the Commission had been able to gather 108 statements and interviews.46 The group of 280 individuals included victims, witnesses, and perpetrators. However, only 62 people gave testimonies before the CTF. The number of perpetrators was, however, small. It is noted in the report that the CTF recommended no amnesties. The CTF concluded that none of the perpetrators met the benchmark set by the Commission for recommending a person for amnesty: being present at a public hearing, imparting the complete truth, and cooperating fully.47 The information on the process is, however, extremely limited, and more research is required.

6.5. Liberia The next example of a TC with amnesty powers is provided by Liberia, which established a truth commission in 2005. The law that established the Truth and Reconciliation Commission in Liberia stated that the TC in certain circumstances could recommend amnesty (Pajibo, 2007). Perpetrators had to disclose fully the truth of their sins and express their regret for them (Keil, 2017). Importantly, an exception was made for violations of international law and crimes against humanity. Amnesty could not be granted for such international crimes (De la Cruz Gitau, 2008). To entice people to appear before the TC, the Commission published a list of 1,981 names. Based on testimonies received beforehand, the TC believed these people were responsible for committing a range of crimes.48 Another 139 people were labeled as “persons of interest” (James-​Allen et al., 2010). In its concluding report, the TC recommended prosecution for 182 people. It did, however, recommend a general amnesty be applied to children who had committed violations. Furthermore, the TC endorsed amnesty for people who committed non-​serious crimes but confessed what they had done and expressed regret, which the TC believed would promote national healing and reconciliation.49 The Liberia TC stated, “all individuals who admitted their wrongs and spoke truthfully before or to the TC as an expression of remorse will not be recommended for prosecution.”50 The TC ended up recommending 38 people for amnesty, out of a total of 17,000 people disclosing information (Weah, 2012). Again, the information on the amnesty aspect of the process is sketchy, and extensive research is required (Sarkin, 2019d).

46 

Indonesia/​Timor-​Leste, 2008, p. 28. Indonesia/​Timor-​Leste, 2008, p. 296. 48 Amnesty International, Public Statement. AI Index: AFR 34/​ 010/​ 2008. Liberia: Will those investigated by the Truth and Reconciliation Commission ever be prosecuted? PDF. Liberia: TRCL, 2008. https://​www.amnesty.org/​download/​Documents/​52000/​afr340102008en.pdf (Accessed: February 13, 2020). 49 Truth and Reconciliation Commission of Liberia. (2009) Final Report of the Truth and Reconciliation Commission of Liberia (TRC). Available at: https://​reliefweb.int/​report/​liberia/​liberias-​ trc-​presents-​final-​report. (Accessed: September 3, 2017) (Liberia 2009), Volume 2, p. 8. 50  Liberia, 2009, Volume 1, p. 5. 47 

692   Jeremy Julian Sarkin

6.6. The Kenyan Truth, Justice and Reconciliation Commission (TJRC) In 2009, Kenya established the Truth, Justice and Reconciliation Commission (TJRC) to deal with the violence that erupted after the 2007–​2008 elections (Asaala, 2010), during which more than 1,300 people were killed (Slye, 2018). The TJRC was not only mandated to investigate the post-​election violence but also had to look into the gross human rights violations and other historical injustices that took place in Kenya between December 12, 1963, and February 28, 2008. The TJRC Act included a range of provisions to entice those with information to participate, in order to amplify truth recovery. Section 24(3) stipulated that it would not be possible for criminal or civil proceedings, or for a penalty or forfeiture to occur, using the information provided by a person who came to the TJRC. Furthermore, in terms of Section 34, the TJRC was able to recommend amnesty to perpetrators who had given their full cooperation to the TC in the search for the truth. In the beginning, the TJRC had the discretion to determine the types of crimes for which amnesty could be recommended.51 At a later point, however, the list of crimes for which amnesty could be recommended was limited by an amendment of the law. The main issue the TJRC amnesty process suffered from was that the Commission could not directly grant amnesty; instead, it only had the authority to recommend it. On this matter, Ronald Slye (2017, p. 26) noted that because the commission could only recommend amnesty, “[t]‌he weakened provisions effectively nullified any impact of amnesty in the Kenyan process, while at the same time providing the mistaken perception that the Kenyan Commission had controversial amnesty powers.” Slye (2017, p. 26) also argues that the Kenyan Commission had such a limited mandate that it was unable to tempt perpetrators into providing information or encourage reconciliation. The Commission itself states in its final report that the limited amnesty powers did nothing to help the Commission obtain the truth.52

6.7. Republic of Korea Over the past seven or so decades, various attempts have been undertaken to confront Korea’s past (Wolman, 2012). It is claimed by some that there have been approximately 18 TCs since 1996 (Baik, 2012, pp. 169–​170). The most concrete and authoritative effort occurred in 2005 (Wolman, 2012, p. 27) and resulted in the Truth and Reconciliation Commission of Korea (TCK).53 Its mandate was focused on exploring the years from 1910 until 1993 (Melish, 2012, p. 1).

51 Kenya,

Truth, Justice and Reconciliation Commission. (2013) Report of the Truth, Justice and Reconciliation Commission (Volume I). Available at: http://​knchr.org/​Portals/​0/​Reports/​TJRC_​Volume_​ 1.pdf (Accessed: September 3, 2017) (Kenya, 2013), Volume 1, para. 125. 52  Kenya, 2013, Volume 1 para. 125. 53 Truth and Reconciliation Commission, Republic of Korea. (2009) Truth and Reconciliation Activities of the Past Three Years. Available at: https://​www.usip.org/​sites/​default/​files/​ROL/​South_​ Korea_​2005_​reportEnglish.pdf. (Accessed: September 3, 2017).

Amnesties and Truth Commissions    693 In terms of article 38 of the TCK Act, “immunity” could be recommended for those who chose to cooperate with the TC. Article 30 provides that a person who obtains or submits critical materials for clearing up the truth may be recommended for amnesty. Another important provision is article 38, which states that perpetrators who provided their full and active cooperation and admitted to their crimes would be recommended for immunity or a mitigated punishment by the TCK. In addition, the TCK had the power to recommend to the President to grant either a pardon or exoneration (Sarkin, 2019d). The fact that the 2005 Commission could only recommend immunity (or amnesty) to other actors of the state instilled little eagerness in perpetrators to come forward (Kim, 2012, pp. 97–​107). The Commission did have subpoena powers, but there was no enforcing power behind it; the Commission did not have compliance or sanctioning powers available against non-​compliant individuals (Kim, 2012). Dong-​Choon Kim (2012, pp. 97, 107) concludes that “[t]‌he TCK rarely issued an order compelling a person to appear before it and never penalised anyone for refusing to appear before it.”

6.8. Truth commissions and amnesties in other countries The TC created for the Democratic Republic of the Congo (DRC) (Davis and Hayner, 2009) was not provided with the power to grant amnesty (Kamabala and Savage, 2008, pp. 336–​358), although it did have powers to recommend it. Ultimately, the TC ended up not investigating any cases, nor did it provide recommendations as to the granting of amnesty (Davis and Hayner, 2009, p. 22). Little is known about how the process worked and what was achieved. Indonesia created a TC in 2004. It was decided that this commission could recommend to the President persons eligible for amnesty after having heard confessions and apologies. However, in 2006, the Constitutional Court of Indonesia decided that the statute establishing the TC was in breach of the Constitution.54 Therefore, the TC never came into being and, as a result, nothing was achieved. Nepal created an early draft of a TC law in 2007 (Ginsbach, 2013). Among its provisions was an ability to recommend amnesty if a perpetrator applied for it and presented an amnesty application “in course of abiding by his/​her duties or with the objective of fulfilling political motives,” and had also expressed regret.55 Finally, the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act established two commissions: the Truth and Reconciliation Commission (TRC) and Commission on Investigation of Enforced Disappeared Persons (CIEDP). They were mandated in terms of article 26(1) to recommend individuals for amnesty to the Government of Nepal. The Commissions could also make recommendations to prosecute perpetrators who had not been granted amnesty. There are, however, no provisions in the law that guide the government in determining

54  Decision of Constitutional Court of the Republic of Indonesia, Decision No. 020/​PUU-​IV/​2006 (7 December 2006). 55 International Center for Transitional Justice. (2016) Challenging the Conventional: Can Truth Commissions Strengthen Peace Processes? Available at: https://​www.ictj.org/​sites/​default/​files/​ICTJ_​ TruthCommPeace_​English_​2016.pdf. (Accessed: September 2, 2018), pp. 76–​77.

694   Jeremy Julian Sarkin whether to grant an individual amnesty. The law provides that the name granted amnesty shall be published in the Nepal Gazette. However, Nepal’s Supreme Court invalidated the provisions regarding amnesty. They were struck down based on their incompatibility with both Nepali and international law (Sarkin and Bhandari, 2019). A lengthy unstable period preceded the creation of a TC in Burundi. It was established to scrutinize severe human rights violations in the period 1962 until 2008. Its mandate included the investigations of crimes such as torture, murders, enforced disappearances, deaths of people in custody, and political assassinations. With regard to amnesty, the Commission (Taylor, 2013) was tasked with settling which “political crimes,” would be covered by the amnesty law (Vandeginste, 2011, pp. 189, 200). In its charter, it was determined that individual amnesty procedures could be started if and when the applicant had disclosed the truth in a full and sufficient manner. Even though the Commission was legally established, it never came into being (Vandeginste, 2012). In Colombia because of the 2016 peace agreement between authorities and the FARC, there have been processes to grant pardons or conditional amnesties.56 The Comprehensive System of Truth, Justice, Reparation and Non-​Repetition has five departments, one of which deals with providing pardons and amnesties. For this, a Commission for the Identification of the Truth, Coexistence and Non-​Repetition was established (Bustamante-​Reyes, 2017, p. 14). It has a mandate of three years, during which it was able to investigate and report on the violations that took place during the conflict (Bustamante-​Reyes, 2014, pp. 14–​17). This truth commission has certain powers, such as subpoenaing people to testify, but the evidence resulting from such witnesses cannot be used in a criminal trial. However, the truth commission cannot grant amnesty (Ortiz Acosta, 2017), as this power is reserved for the Special Jurisdiction for Peace (SJP) that has the right to waive criminal prosecutions, although a lack of clarity exists about the extent of this power. The SJP can decide to give a “special treatment” to perpetrators who committed political crimes, should this person meet certain verified conditions. The issue of the legality and necessity of amnesty in the country is already being examined (Josi, 2016).

7.  Conclusion The debate about the role and functions of truth commissions has certainly been controversial, and the debates about amnesties have also been contentious (Pensky, 2008, pp. 8–​11). There are many core issues about both truth commissions and amnesties that are far from settled (Cobban, 2007). Certainly, the debate about the role of amnesty divides attitudes about how to deal with the past (Sarkin, 2019c). Even conditional amnesties are not always seen to be legal (Mawhinney, 2015, p. 36). The interrelationship between amnesties and truth commissions remains very under-​ researched. While there has been some research on the processes of truth commissions where amnesty exists, little is known about the effects of the amnesty on the process

56  Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace (Colombia-​ FARC-​EP) (24 November 2016).

Amnesties and Truth Commissions    695 specifically. Similarly, there has been little research on the effects of provisions that allow TCs to grant or recommend amnesty. The effects of those processes and the long-​term impact of those amnesties are also mostly unknown.

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CHAPTER 29

Custom ary Re sp onse s Joanna R. Quinn 1.  Introduction Customary justice could provide a useful means of coming to terms with the past. This chapter begins by introducing customary justice. It moves to a discussion of the relationship of customary law to formal law. The chapter provides some context about where customary justice has been used, and for what. It discusses the changing nature of customary justice, as well as some of the difficulties the use of customary practices presents, including issues of power and legitimacy, cross-​ethnic applicability, the potential for corruption, and difficulties with equality and inclusion. Finally, it considers its applicability to the three categories of atrocity crimes, along with future prospects for its use.

2.  What Is Customary Justice? In their search for justice after atrocity, in many places people turn not to the kinds of conventional, formalized practices described elsewhere in this volume, but to community-​ based practices based on cultural norms and mores.1 Such practices involve aspects of restorative, reparative, and retributive justice. They may be carried out through a series of rituals and ceremonies that on the surface have very little to do with “justice” in the way it is normally thought of in the modern Western world. Yet the entrenched meanings and importance of such practices are such that the people using them are able to understand what is taking place and to trust the practices. They are also said to have “greater legitimacy and capacity than devastated formal systems, and they promise local ownership, access, and efficiency” (Waldorf, 2006, pp. 3–​4). The customary justice practices are “embedded in historically and culturally specific socio-​economic and political contexts” (Waldorf, 2006, p.

1 

Note the distinction between law and justice. Justice is an ideal based on equality and fairness, while law is a body of regulations and standards whose administration should lead to this ideal.

704   Joanna R. Quinn 7). As Finnström (2008, p. 217) notes, such practices have the capacity to help to “reconcile and eventually overcome . . . the cosmological imbalance.” Indeed, after a dispute or following the violation of human rights, in some parts of the world, people seek healing or reconciliation or accountability or compensation—​or any of a host of other things to help them deal with the past—​with the help of elders and cultural healers, or through community-​based practices.2 These practices have been reported in many parts of Africa, Latin America, the South Pacific, Southeast Asia, Central Asia, and the Middle East, as well as in settler-​colonial states like Australia, Canada, New Zealand, Northern Ireland, and the United States. It has been argued by many scholars, including Chan (2011, p. 271), that “thicker normative values must accompany any truly successful conflict resolution . . . [and that the] platform must fit into the environment in which it sits.” Keesing (1993, p. 590), too, has argued that post-​conflict justice practices must be “given local and contextual content.” These are just two examples of many that could be cited here. Such practices are difficult to typologize, since they look and feel different depending on where they take place. What is clear is that although they have all but disappeared in some areas, often with the onset of colonial governance which brought formalized Western law, people in many places continue to rely on them. Examples exist in many parts of Africa and throughout the South Pacific, for example (Corrin Care et al., 1995, pp. 24–​25; Zartman, 2000, p. 1; Waldorf, 2006, p. 3; Forsyth, 2007). In other areas, their use is being rejuvenated. This is the case with Navajo courts in the United States and courts in Afghanistan and in Rwanda, for example (Bluehouse and Zion, 1993; Rouland, 1994; Waldorf, 2006, pp. 48–​55; Huyse, 2008, pp. 20–​21; Schmeidl, 2009; Borrows, 2010). In many cases, this revival has meant that the practices have been changed to near unrecognizability, while in others they have been subject to incremental change and largely remain the same. In the literature, these practices are often characterized as “informal,” “local,” “non-​state,” “popular,” or “traditional.” The use of these adjectives is meant to convey that customary practices are bottom-​up initiatives, operating outside the purview of state authorities, and responding directly to the needs of the people. This terminology, however, as Huyse (2008, p. 8) notes, is tricky. . . . Some prefer “informal,” so as to make the contrast with the formal and formalistic character of state justice institutions, but some of our case studies show that the mechanisms in question acquire formal attributes once they are more or less a part of a transitional justice policy. . . . A similar problem arises when “non-​state” is used as the adjective.

Waldorf (2006, fn. 12), too, remarks on the struggle over nomenclature: “The terms ‘customary law’ and ‘traditional justice’ are inherently essentialist, historicizing, and mythopoeic, while the term ‘popular justice’ connotes popularity, which is sometimes lacking.” Likewise, the term “local” does not apply if and when the use of such practices moves beyond a small community and to a district or regional use, let alone the national level. Zartman (2000, p. 7) observes that “tradition is likely to have been updated, adjusted, and

2  Customary

practices are often based in the community with local engagement. In some cases, all members of the community can participate equally, while in other cases large groups (e.g., women or youth) are excluded. Shaw, Waldorf, and Hazan (2010) suggest that the local is not necessarily just about place, as it is at the national or some other space-​based level.

Customary Responses   705 opened to new accretions in order to stay alive through changing times. Traditional does not mean unaltered or archaic.” In my own work, I have opted to use the word “customary,” as in, “according to the customs or usual practices associated with a particular society, place, or set of circumstances.”3 Unlike the word “traditional,” the use of the word “customary” allows for the recognition that practices in all societies change over time, despite Zartman’s objections. This chapter continues in that vein. It is useful to note here the distinction between law and justice. Law itself is the set of tools that may be used to facilitate the resolution of a particular problem (D’Amato 2011, p. 2). Justice is the result. The same holds true for customary law and customary justice; while customary law is the set of tools, customary justice is what comes from the use of those tools. It is important to note that customary practices of law and justice are not static. They change in at least two specific ways: first, as with all institutions, they change over time (Weber, 1968). “Human communities are living things that continue to change” (Silko, 1996, p. 200). This kind of social change results in the “alteration of social interactions, institutions, stratification systems, and the elements of culture over time” (Andersen and Taylor, 2005, p. 618). Social customs, too, become modified as those actions that inform them also change. As such, traditional practices of acknowledgment and justice also change. Some of these traditions have continued without interruption over time but have gradually been adapted, informed by traditional values and teachings. These practices fairly closely mirror the kinds of practices that existed before contact with Europeans and colonization. Some of these practices have also been codified and are carried out according to written and/​or oral rules. Second, in other cases, the so-​called traditional practices are actually constituted anew—​ constructed out of ideas of what a traditional practice or a collection of traditional practices might once have looked like. While these at first may seem unconnected, communities refer to both as “traditional” practices. Where the practices have been reconstructed after a period of absence or constructed anew without any genesis in the previous customary practices, however, such practices are technically “neo-​traditional” (Brown, 2005; Hayner, 2001, p. 192). Such neo-​traditional practices are found in places like Rwanda, in the form of the gacaca courts, for example (Waldorf, 2006). Rwanda’s gacaca courts are an outlier in the universe of customary justice, because they were codified and strictly under state control. This model is not seen in any other case. The gamba spirit ceremony in Mozambique is another “instance of a newly invented mechanism, based on existing ingredients” (Huyse, 2008, p. 16). Similarly, traditional elders’ courts that operate in aboriginal communities across Canada (Ross, 1996) and the Navajo Courts that have been (re)created in the United States (Bluehouse and Zion, 1993, p. 328) mimic traditional practices that used to exist. Neo-​traditional institutions are newly created practices often modeled on old institutions, with changes made to make them relevant to contemporary circumstances. Rather than evolving traditional practices, these are recently constituted practices that did not exist in the past, even though they call upon some elements of other “traditional” practices.

3  Oxford English Dictionary (2016) Third Edition. Oxford University Press. Available at: www.oed.com (Accessed: March 6, 2020).

706   Joanna R. Quinn At its root, it is safe to say that customary justice is made up of “those practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them” (Borrows, 2010, p. 51), along with their outcomes. The definition, though, needs to be broad enough to encompass the “customs, traditions, observances, practices and beliefs . . . which, despite changes over time, continue to be accepted . . . as establishing standards and procedures that are to be respected.”4 Clapham (2012, p. 55) underlines the perceived required or compulsory nature of customary practice, saying that “custom means something more than mere habit or usage; it is a usage felt by those who follow it as obligatory.” In many of the places in which it is used, customary law is not reserved just for atrocity crimes. Rather, it is used to deal with a wide variety of things. These may include land inheritance, questions related to social order, community activities, governance, resources, and marriage and family relationships (Corrin Care et al., 1995, pp. 24–​25; Borrows, 2010, p. 52). Anecdotally, it is clear that customary practices hold significant sway; for example, as we sat in his very formal office, across from his very British-​looking powdered wig and long judicial robes, a High Court Justice in Uganda once recounted to me that even he, like most Ugandans, routinely settled matters relating to land disputes in the local courts.5 This is because in countries like Uganda and Fiji, for example, the positive, state-​written law devolves jurisdiction over land disputes to custom and the customary law (Fraenkel, 2006, p. 341; Gates interview, 2010).6 The applicability of customary justice to atrocity crimes stands in some question. Customary practices are ordinarily applied to the ordinary kinds of disputes that arise in everyday society. Indeed, Waldorf (2006, p. 86) argues that “local justice in transitional settings will be more effective and legitimate if it focuses on its ordinary subject matter—​ generally, property, restitution, and community reintegration.” This may be because people in those communities have been taught by the colonial powers that their own customary justice is inferior, or because such practices were never intended for the situations and circumstances of modern war and conflict. The use of different customary practices was never envisioned for the scope and scale of violence that exists, for example, in places like Northern Uganda or Rwanda. In a 2004 report on transitional justice, the UN Secretary-​General stated that “due regard must be given to indigenous and informal traditions for administering justice or settling disputes, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition.”7 Huyse (2008, p. 192) is cautious in noting that “tradition-​based practices have the potential to produce a dividend in terms of the much-​ needed post-​conflict accountability, truth telling and recognition that is not negligible. . . . [P]‌ositive effects may be expected with regard to the more general transitional justice goals

4 

Nunatsiavut Constitution Act (2005), Section 9.1.1. Available at: www.nunatsiavut.com/​wp-​content/​ uploads/​2014/​03/​IL%202005-​02%20-​%20E.pdf. (Accessed January 3, 2019). 5  Interview by author, Tabaro, P., High Court Justice (July 14, 2008) Kampala, Uganda. 6  Interview by author, Gates, A. Hon. Jus., Chief Justice of Fiji (June 29, 2010) Suva, Fiji. 7  Report of the Secretary-​ General, “The rule of law and transitional justice in conflict and post-​ conflict societies” (2004) UN Doc S/​2004/​616, Sec 36 (Report of UNSG 2004).

Customary Responses   707 of healing and social repair.” Somewhat controversially, Waldorf (2006, p. 87) argues that “non-​criminal informal justice is better left to reintegrating low-​level perpetrators and child soldiers back into their local communities [while] international criminal justice is better suited to prosecuting high-​level perpetrators who threaten national and international peace and security.” It is, therefore, appropriate to consider customary justice as needing to take place alongside other transitional justice measures that seek to address atrocity crimes. To this end, the Secretary-​General has argued that “[w]here transitional justice is required, strategies must be holistic, incorporating integrated attention to individual prosecutions, reparations, truth-​seeking, institutional reform, vetting and dismissals, or an appropriately conceived combination thereof.”8 Customary practices of justice may do some or all of these things. The scholarly literature identifies five common characteristics of customary practices: first, they are rarely documented or codified (Hobsbawm, 1988; Zorn and Corrin Care, 2002; Quinn, 2009a, p. 67). Second, there is almost always a blend of customary practices being used, and these combine cultural, religious, social, and other practices. Third, they are “particularistic . . . [taking on] different forms as dictated by ecological factors, population density, political organization, economic relations, and so on” (Osaghae, 2000, p. 210). Fourth, they reflect the many interests and power dynamics that exist within society. Fifth, they often place great importance on consensus and social cohesion (Osaghae, 2000, pp. 209–​213). Customary practices of justice are a part of community life and provide different ways of helping the community to deal with the situation that has arisen: A Penal Reform International report on informal justice systems in Sub-​Saharan Africa lists several strong points of such arrangements: They are accessible to local and rural people in that their proceedings are carried out in the local language, within walking distance, with simple procedures which do not require the services of a lawyer, and without the delays associated with the formal system. In most cases, the type of justice they offer—​based on reconciliation, reparation, restoration and rehabilitation—​is more appropriate to people living in close-​knit communities who must rely on continuous social and economic cooperation with their neighbours. . . . They help in educating all members of the community as to the rules to be followed, the circumstances which may lead to them being broken, and how ensuing conflict may be peacefully resolved. The fact that they employ non-​custodial sentences effectively reduces prison overcrowding, may allow prison budget allocations to be diverted towards social development purposes, permits the offender to continue to contribute to the economy and to pay reparation to the victim, and prevents the economic and social dislocation of the family. (Cited in Huyse, 2008, pp. 181–​182)

This quotation focuses on two important facets of customary practices of justice: First, their use and specificity are understood by the people who access them—​and so they do access them. And second, the form of punishment or sentencing handed down by such customary justice does not always look the way we might expect.

8 

Report of UNSG 2004, Sec 26.

708   Joanna R. Quinn

3.  Relationship with Formal Law It is often the case that customary practices operate outside of the state—​what McEvoy and McGregor (2008, p. 3) characterize as “sites that are generally ‘below’ the gaze of formal institutions of transitional justice.” They note that their use arises in part from a degree of wariness about the capacity of such institutions to actually deliver to such communities. The term “from below” is increasingly used to denote a “resistant” or “mobilising” character to the actions of community, civil society and other non-​ state actors in their opposition to powerful hegemonic political, social or economic forces. (McEvoy and McGregor, 2008, p. 3; see also Robins, 2010)

In practice, however, customary justice may have only the veneer of non-​state status. This could be due to any number of things. First, there are questions of power and influence, which might imbue customary practices with a kind of nuanced official authority. In places like Uganda, the advent of a colonial administration conferred power to selected sub-​ state leaders who were beholden to the state and who then used customary law as a way of upholding the rules of the colonial government in communities (Finnström, 2008, pp. 42–​43). “Customary law consolidated the non-​customary power of the chiefs in the colonial administration” (Briggs, 1998, p. 25). Second, in many places customary practices have been formalized and have been subsumed within the formal legal apparatus; this is the case in Rwanda and Mozambique, as well as in a number of states throughout the South Pacific. In writing about what he calls “late colonialism,” Mamdani (1996, p. 70) argues that “customary law separated civil from uncivil society.” The colonial rulers banned the use of many customary practices in favor of modern Western ideas and practices (Lugard, 1965, pp. 536–​569).9 “The law was the cutting edge of colonialism” (Chanock, 1985, p. 4). Those customary practices that were allowed to exist were only to be used by “natives” (Mamdani, 1996, pp. 109–​110)—​and even then, “only in cases where they were not pertinent to the legal system.”10 In most cases, particularly in Africa, effectively that meant that every colony had two legal systems: one modern, the other customary. Customary law was defined in the plural, as the law of the tribe, and not in the singular, as a law for all natives. Thus, there was not one customary law for all natives, but roughly as many sets of customary laws as there were said to be tribes. (Mamdani, 1996, p. 22; see also Waldorf, 2006, p. 12)

This resulted in a phenomenon called legal pluralism: “a situation in which two or more legal systems exist in the same social field” (Merry, 1988, p. 2). The existence of more than one legal system is not unknown; in countries like Canada and Vanuatu, for example, both

9  On

Uganda, for example, see: British Colonial Office (1961) Report of the Uganda Relationship Committee. London: British Colonial Office; and on Fiji: Regulations of the Native Regulations Board, 1877–​1893. Passed by the Native Regulation Board and Approved by the Legislative Council. (1876). Suva, Fiji: Edward John March, Government Printer. 10  Interview by author, Tabaro, P., High Court Justice (July 14, 2008) Kampala, Uganda.

Customary Responses   709 common law and the civil code are used, owing to those countries’ dual British and French heritage (Forsyth 2007; Borrows, 2010). The same can be said for the co-​existence of customary law in post-​colonial or settler colonial states, with two caveats: first, the two systems often worked very differently (e.g., customary law was often oral, while formal law was written), and in practice this meant that the colonial powers defaulted to the formal legal system they could pin-​point in writing. Second, as Merry (1988, p. 874) notes, in such situations, legal pluralism is often “embedded in relations of unequal power.” Waldorf (2006, p. 13) suggests that “efforts to marry formal state systems and informal local systems have generally failed . . . [because] linking the two systems tends to undermine the positive attributes of the informal system.” Borrows (2010, p. 23) insists, though, that while there may sometimes be conflict between these different systems of law “the blending and/​or coexistence of legal traditions is possible [emphasis added].” In some jurisdictions, however, meshing the two systems proves difficult. Customary law was and is sometimes considered as “a foreign law which had to be proved in its own land, a law external to the main body of law enforced in the superior courts” (Gluckman, 1969, p. 14, cited in Mamdani). In other jurisdictions, the formal legal system specifically “makes provision for customary law to be used” (Corrin Care et al., 1995, p. 25). Uganda is one such case. At the time of the peace talks between the Lord’s Resistance Army (LRA) and the Government of Uganda in 2007–​2008, one of the peace agreements that was signed by both parties laid out the promise of a framework for the optional use of customary practices alongside existing accountability measures as a way of dealing with the past.11 Even where it is recognized, the hierarchy of the sources of law means that customary law, that is, the set of tools by which customary justice is achieved, is often relegated to a position of lesser significance. The formalized hierarchy of the sources of law in common law states, for example, tends to include some variation of the following: a constitution or other founding document, parliamentary legislation, common/​case law, published expert commentaries, and general customs. Practically, however, this means that when deciding cases, judges rely more heavily on all other sources of law than on customary practice. In writing about Indigenous law in Canada, Borrows (2010, p. 56) argues that lawmakers “must reject the view that [customary] law lies at the bottom of the legal hierarchy. . . . It can be seen as a living system of law, open to human choice and agency, within the context of the communities who will use them.” This is more or less the case in other jurisdictions where “the written law goes further and makes express provision for customs or customary law to be applied as part of the law of the country by all courts” (Corrin Care et al., 1995, p. 25); in such places, customary law is given equal weight.

11  Government of Uganda and Lord’s Resistance Army/​ Movement: “Agreement on Accountability and Reconciliation.” Juba, Sudan. June 29, 2007. Available at: https://​peacemaker.un.org/​uganda-​ accountability-​reconciliation2007 (Accessed December 13, 2019); Government of Uganda and Lord’s Resistance Army/​Movement: “Annexure to the Agreement on Accountability and Reconciliation.” Juba, Sudan. February 19, 2008. Available at https://​peacemaker.un.org/​uganda-​annex-​accountability2008 (Accessed December 13, 2019).

710   Joanna R. Quinn

4.  Case Studies It is useful to understand this conversation through the lens of specific contexts in which customary practices are used. In this regard, Uganda and Fiji are instructive. In both cases, there is significant use of customary practices to deal with the aftermath of conflict. In Uganda, the conflict carried out between the Lord’s Resistance Army and the Government of Uganda; and in Fiji, the aftereffects of the four coups d’état that rocked the island country. And in both cases, their use of customary practices is, or has until recently been, provided for in formal law.

4.1.  Uganda Customary practices in Uganda were outlawed at the time of independence from the British in 1962. Believing that they posed a threat to his grasp on power, under the 1967 Constitution, Prime Minister Milton Obote banned the kingdoms and traditional cultural institutions that existed in the 65 different ethno-​cultural communities across the country. Since these institutions were chiefly responsible for carrying out and overseeing the customary justice practices, there was some concern that these would likewise disappear. Instead, customary justice practices have continued to be used in different parts of the country, particularly in the greater north (Quinn, 2014). Most of the kingdoms and traditional cultural institutions have since been restored, and are provided for in Article 246 of the Constitution (1995). Customary practices of all kinds are legislated in Article 129, which provides for Local Council Courts12 to operate at the sub-​national level across the country. These courts have authority to promote reconciliation, or to mandate compensation, restitution, and apology, pursuant to the Children Statute.13 These practices were also included in and discussed at the Juba peace talks, the negotiations to end the conflict between the Government of Uganda and the Lord’s Resistance Army that took place throughout 2006 and 2007 in Juba, South Sudan, although no formal conclusion was ever reached. Many of the 65 different ethno-​cultural groups still use customary practices widely, although they vary, and are used in different situations for different reasons. Customary practices are used only rarely, if at all, in the greater south of Uganda, among Ugandans of Bantu origin (Quinn, 2014). However, across the greater north they are prevalent—​and were used extensively during and after the civil war between the Lord’s Resistance Army and the Government of Uganda (1986–​2007), in large part because the formal systems of justice were either not available in the midst of conflict or because they were found lacking. Some are targeted at individuals, while others are group-​oriented (Quinn, 2009b). The Karamojong use the akiriket councils, wherein elders adjudicate disputes according to traditional custom (Novelli, 1999, pp. 169–​172, 333–​340), which includes cultural teaching

12  The

Local Council Courts were formerly known as Resistance Council Courts and “were first introduced in Luweero in 1983 during the struggle for liberation. In 1987 they were legally recognized throughout the country” (Waliggo, 2003, p. 7). 13  Government of Uganda (1996) “Children Statute,” (No. 6 of 1996). Adopted April 1, 1996.

Customary Responses   711 and ritual cleansing ceremonies.14 The Acholi use a complex system of ceremonies in adjudicating everything from petty theft to murder (Harlacher et al., 2006). In the context of the war between the Lord’s Resistance Army and the Government of Uganda, at least two traditional ceremonies have been adapted to welcome ex-​combatant child soldiers home after they have been decommissioned: mato oput (drinking the bitter herb), and nyono tong gweno (a welcome ceremony in which an egg is stepped on over an opobo twig) (Finnström, 2008, pp. 223–​226). Both of these were seen as necessary, since the tens of thousands of children who had been abducted and then conscripted as child soldiers were returning home badly damaged by what they had seen and done, and because the communities into which they were returning were frightened of the evil spirits or cen they believed the children were bringing with them. The mato oput was used to bring together the families and clans of the children to take responsibility for the returning children, while the nyono tong gweno was employed to release the cen and allow the children to reintegrate. It is important to note that these ceremonies have been used over time for other purposes as well, but in the context of the LRA conflict they were deployed for these reasons. The mato oput, for example, in regular times, might be used to establish responsibility for the theft of a cow or for the rape of a woman. Other ethno-​cultural groups across the greater north of Uganda use similar practices. The Langi call theirs kayo cuk, the Iteso, ailuc, and the Madi, tonu ci koka. Harlacher et al. (2006, pp. 64–​65) detail the use of several rituals and ritual acts performed by the Acholi in dealing with the LRA conflict and to promote healing: The nyono tong gweno (“stepping on the egg”) and Iwoko pik wang (“washing away the tears”) rituals have been especially important in the welcoming and initial cleansing of people who have returned to the community from the LRA war. . . . The three rituals of tumu kir, mato oput and gomo tong have important implications for the prevention and resolution of conflicts. There are also several procedures for cleansing an area of bad spirits (moyo piny). Finally, a number of ceremonies such as kwero merok, ryemo jok, and moyo kom are conducted to heal individuals with the support of the community.

Across the country, people from almost all of Uganda’s sixty-​five ethno-​cultural groups report that “everyone respects these traditions,”15 and agree that reconciliation is an “essential and final part of peaceful settlement of conflict” (Waliggo, 2003, 9)—​between parties to the conflict, between their families and clans, and between people in the wider community. In cases like the LRA conflict, which affected roughly half of the geographic space that is Uganda, the term reconciliation has been expanded in common parlance to address ending many forms of conflict, including different ethno-​cultural groups, the greater north and the greater south of the country, and the Government of Uganda, depending on the circumstance. Throughout Uganda, a common understanding of these symbols, ceremonies, institutions, and their meanings remains. Yet the customary practices have never really addressed atrocity crimes as such, at least not in the way that Western mechanisms like courts would do. Instead, they have been utilized to deal with the consequences of atrocity

14  Interview

by author, Lokeris, P., Minister of State for Karamoja (November 18, 2004) Kampala, Uganda. 15  Confidential interview, Sabiny man studying at Makerere University (November 7, 2004) Kampala, Uganda.

712   Joanna R. Quinn crimes. The Ugandan case is not unique in this regard; customary practices have rarely, if ever, been used to address atrocity crimes.

4.2. Fiji Islands Customary law was legislated in the Regulations of the Native Regulations Board (1876).16 But the traditional Fijian court system and regulations relating to customary law were abolished in 1967 (Ralogaivau, 2006). “At least by 1970 and the enactment of the new constitution, the traditional courts went out of use. They have not been reinstituted and Magistrates now visit the more distant villages on circuit to adjudicate on criminal and civil matters.”17 That is, the court system fell out of use when the customary practices themselves were officially banned, but the practices themselves continued to be used nonetheless to a large extent until 1997. Customary law is no longer recognized as a source of law by the constitution,18 yet the 1998 Constitution does protect customary law to some extent: “All written laws in force in the State (other than the laws referred to in subsection (1)) continue in force as if enacted or made under or pursuant to this Constitution and all other law in the State continues in operation” (Sec. 195.2.e). Sec. 186.1 is also explicit in upholding laws related to customary law: “The Parliament must make provision for the application of customary laws and for dispute resolution in accordance with traditional Fijian processes” (Corrin Care, 2000, p. 1). The abrogation of the Constitution in 2009 put an end to the recognition of customary law as a general source of law in Fiji. These have never been re-​established. The Chief Justice of the Supreme Court explained to me that “there is a join between the traditional system and the Western system, but not for serious cases like murder, rape, robbery with violence, and that kind of thing. There, we simply must apply legal principles, which are important in the community.”19 Sometimes, however, a person with a grievance will use both formal Western courts and customary practices, either concurrently or sequentially, in dealing with the person and the crimes he or she has committed. The head of Fiji’s Land Trust Board, a national-​level institution that is responsible for the customary adjudication of land disputes and official title, told me that “[t]‌here is officially no such thing as customary law in Fiji, but it’s really a matter of definition. Most of our customs have been codified, and it is sometimes difficult to distinguish, now, what is customary law.”20 A number of Indigenous Fijian customary practices were traditionally used in the resolution of conflict and in ceremonies of reconciliation, although these were not what would be considered atrocity crimes. Still, the question of their applicability was actively debated

16  Regulations

of the Native Regulations Board, 1877–​1893. Passed by the Native Regulation Board and Approved by the Legislative Council. (1876). Suva, Fiji: Edward John March, Government Printer. 17  Email correspondence, Pryde, C., Solicitor General of Fiji (February 8, 2011). 18  The Constitution Amendment Act 1997 repealed the 1990 Constitution. The 1997 Amendment Act omits Section 100.3, which had appeared in the 1990 Constitution, and which read as follows: “Until such time as an Act of Parliament otherwise provides, Fijian customary law shall have effect as part of the laws of Fiji.” 19  Interview by author, Gates, A. Hon. Jus., Chief Justice of Fiji (29 June 2010) Suva, Fiji. 20  Interview by author, Qetaki, A., General Manager, Native Land Trust Board (21 June 2010) Suva, Fiji.

Customary Responses   713 in the years between 1987 and 2006 when the country experienced four coups d’état and the formal justice system—​along with the majority of the instruments of government—​ effectively ceased to function. Collectively, customary justice practices are known as i soro (Toro, 1973; Arno, 1976, p. 49). One ceremony is carried out when one party seeks forgiveness from another, with the extended family; this is called the matanigasau. The bulu is used to “bury the bad thing that has happened”21 when someone is injured (Cretton, 2004, p. 2). The veisorosorvi ritual brings both parties together to sit, discuss, and agree together, after which a tabua [whale’s tooth] is always presented to seal what has been agreed upon. Once the tabua is presented, that’s the end of it. Sometimes the tabua can be a curse, because you must follow what you’ve agreed to by accepting it.22

All of these are customary practices of forgiveness and reconciliation and may be used either instead of the Western court system or in conjunction with it (see also Ratuva, 2003, pp. 155–​160).23 Even until today, if there are some problems, people will use the village system, a committee set up to resolve their problems. In rural areas, everybody talks together in a traditional way, on mats, under a tree, and so on.24

The Fiji Regulations extended only to Fijians of ethnic descent, and European laws extended only to the European community. The Fijians of Indian descent, who had been brought to Fiji as indentured laborers, were left to their own devices. They relied upon traditional Indian systems of adjudication called panchayats. “The jurisdiction of the panchayat is wide: everything having to do with the caste or its members. . . . They handle[d]‌cases as serious as death by poisoning or causing severe injury, but most cases [were] less dramatic: arguments about marriage arrangements, insults, fighting with weapons, or infringement of someone’s hereditary territory predominate” (Hayden, 1987, p. 256). Fijian panchayats were ad hoc (Mayer, 1956, p. 104) councils comprising “men of generally acknowledged reputation . . . with the power to demand any penalty [they thought] fit (an apology, a fine) or to dismiss the case” (Mayer, 1957, p. 319). These practices were legally sanctioned even after Fiji’s Independence in 1970, in both the Indigenous Fijian community and the community of Fijians of Indian descent (Fa, 1989). The Great Council of Chiefs has been fighting to restore the Fijian court system since 1984. That impetus took flight in 1994 when the Ministry of Fijian Affairs supported the use of the traditional court system during a Commission of Inquiry on the Courts (Momoivalu, 1994). Between 1990 and 2005, for example, the Government of Fiji funded the design of a customary Fijian court system that was ultimately never established,25 including a pilot project called “Problem-​Solving Courts” to try to address the high numbers of Indigenous

21 

Interview by author, Salabogi, J. (June 28, 2010) Suva, Fiji. Interview by author, Salabogi, J. (June 28, 2010) Suva, Fiji. 23  Interview by author, Salabogi (June 28, 2010) Suva, Fiji. 24  Interview by author, Matanitobua Raiki, N., Former Chief Magistrate (June 28, 2010) Nausori, Fiji. 25 Government of Fiji (2005) Report of the Auditor General of the Republic of the Fiji Islands to Parliament—​August 2005. Section 12. Ministry of Fijian Affairs, Culture and Heritage. August. 22 

714   Joanna R. Quinn Fijians in prison; six customary leaders were initially appointed as Grade III Magistrates to hear cases using a customary approach.26 Today, customary practices continue to be observed and inform current practice in everything from prison reform to reconciliation. While there was no coherent system of their use in dealing with the hurts and harms caused in the fighting that took place during the four coups d’état that overthrew successive governments (two in 1987, one in 2000, and one in 2006), customary practices were still employed by families throughout the country. One common ceremony, “sevusevu is used as a sacred way of beginning a conversation, a grounding on which everything else must proceed.”27 In everyday peacebuilding practice, one NGO head told me that “[f]‌raming issues in traditional ways is useful in getting people to buy in. The NGO Coalition and Dialogue Fiji uses this kind of approach.”28 Even within the system of formal law, magistrates and judges use customary practices to gain buy-​in. One magistrate told me: “I would come into a courtroom to find a chair and table provided and everyone sitting on the floor. So I would push the table aside and sit on the floor myself, consulting the elders as I went along.”29 A similar story was echoed even by the Chief Justice of the Supreme Court, who told me that he often relied on customary principles in his work.30

5.  Invisible Difficulties Despite the rosy picture painted by the two case studies presented earlier, the use of customary practices in the pursuit of justice after atrocity is not without difficulties. Such problems may not immediately be apparent to outsiders, although they are deeply felt by people who know them well. It is important to consider these and not to romanticize customary practices as without blemish. Four of these are detailed in what follows: questions of power and legitimacy, the applicability of customary practices in societies where conflict crosses ethno-​cultural lines, the ability of customary practices to be corrupted, and non-​ universal inclusion and treatment of people within such practices. First, it is important to understand that the systems of power within communities may actually be sites of contestation. Whether because they were ordained by the colonial authorities or because they now hold some other kind of sway, sub-​state authorities may not, in fact, be the legitimate bearers of the public confidence in the carriage of customary justice. In traditional Acholi culture in Northern Uganda, for example, chiefs were of aristocratic descent. . . . When they were installed in their office, the chiefs were anointed with oil made from the shea-​butter tree. Even today, those chiefs are called oiled

26  Interview

by author, Katonivualiku, A., Former customary Magistrate (June 25, 2010) Suva, Fiji; Interview by author, Matanitobua Raiki, N., Former Chief Magistrate (June 28, 2010) Nausori, Fiji. 27  Interview by author, Clary, T., Doctoral candidate, Otago University (June 24, 2010) Suva, Fiji. 28  Interview by author, Camillo, J., Executive Director, Ecumenical Centre for Research, Education and Advocacy (June 29, 2010) Suva, Fiji. 29  Interview by author, Kaimacuata, S. Child Protection Specialist, UNICEF (June 25, 2010) Suva, Fiji. 30  Interview by author, Gates, A. Hon. Jus., Chief Justice of Fiji (June 29, 2010) Suva, Fiji.

Customary Responses   715 chiefs. However, the majority of the chiefs appointed by the British were commoners. . . . Chiefs who were acknowledged, even put into office, by the colonial administration, obtained new designations in popular talk. The Acholi native council was referred to as the work of the Europeans or foreigners and its leaders called the elders of the government or chiefs of the pen, which effectively differentiated them from those chiefdom leaders who were ritually anointed with shea butter oil. (Finnström, 2008, p. 42)

This example is not meant to suggest that even traditional chains of authority were perfect. Rather, it is important to recognize the mere fact that someone holds, or seems to hold, administrative authority does not automatically confer legitimacy on that person, and that they may have received that authority via inequitable notions of who should have authority in the first place. Huyse (2008, p. 196) notes that international stakeholders must “be aware of the specific political, cultural and historical forces at work in a transitional society.” Second, because in most cases customary justice practices were conceived and used long before anything resembling human rights existed, such practices often mirror those ancient contexts. Traditionally, for example, women were left out of Ugandan traditional practices involving conflict resolution or peacemaking. The male elders of each clan of each ethno-​ cultural group carried out such ceremonies. “Women had no authority, no agency.”31 “While elderly women would be involved in these rituals, they would play no official role. They would be at the back of the process.”32 “Elderly women would sit behind, and not meet men face-​to-​face.”33 “A woman’s role in these ceremonies was behind the scenes.”34 In some circumstances, women are involved to a greater extent. Among the Alur, for example, the participation of women in these ceremonies, which are still carried out today, is determined by how the ceremony is organized. In Acholi, female ex-​combatants and their girl children participate equally in ceremonies of nyono tong gweno and mato oput that are organized by Acholi elders (Harlacher et al., 2006, pp. 64–​92). There is a growing recognition that women have a right to participate . . . and women’s participation is increasingly supported . . . by positive action programs and other mechanisms. Women in war zones who struggle to get their voices heard offer a different and unique perspective on the purpose of the peace negotiations and the rationale for their participation. They argue that women as victims have a right to voice their concerns at the peace table because they are often the deliberate targets of physical and sexual abuse. They are forced out of their homes and villages. The peace-​table provides an opportunity for all stakeholders to foster confidence and initiate the long process of reconciliation and healing. Without the presence and the voices of the stakeholders on all sides this process can never be complete.35

31 

Interview by author, Kabahoma, Sister S., Executive Director, Catholic Commission for Justice and Peace (August 24, 2006) Kampala, Uganda. 32  Interview by author, Kiguli, Dr. J., Institute of Public Health (August 15, 2006) Kampala, Uganda. 33  Interview by author, Kabahoma, Sister S., Executive Director, Catholic Commission for Justice and Peace (August 24, 2006) Kampala, Uganda. 34  Interview by author, Othieno, R., Executive Director, Centre for Conflict Resolution (August 29, 2006) Kampala, Uganda. 35  Women in Human Rights, Peace Building and Conflict Resolution: A Handbook. 2003. Kampala: Isis-​WICCE, pp. 62–​63.

716   Joanna R. Quinn While the equal presence and participation of women is to be questioned, so, too, are inhumane or unjust solutions that are conceived by those who carry out customary practices of justice. In their traditional guise, customary courts often sentenced people to barbarous treatment. One anthropologist noted that a customary proceeding he attended in 1950 “meted out beatings, fines, and imprisonments. ‘You see we rule by fear,’ [one] divisional chief attested” (Girling, 1960, p. 198, cited in Finnström; see also Waldorf, 2006, p. 86). Donnelly (2003, p. 85) argues that human rights are, among other things, means to realize human dignity. . . . I contend that for most of the goals of non-​Western countries [and here, we can extrapolate customary practices of justice], as defined by these countries themselves, human rights are as effective as, or more effective than, either traditional approaches or modern strategies not based on human rights.

No matter their origin, customary practices must not violate modern standards of human rights and human dignity. Third, in multi-​ethnic or pluralistic societies, customary law may not be applicable. Customary practices are normally used to ameliorate relations and deal with wrongs committed within a particular ethnic group. Examples that cross ethnic lines are few and far between. I have uncovered the use of two cross-​ethnic ceremonies in Uganda: the amelokwit ceremony to wipe away the bad feelings between the Iteso and the Karamojong in 2004,36 and the gomo tong, a symbolic ceremony to mark the end of a war or bloody conflict between different Acholi clans or chiefdoms, or between Acholi and neighbouring ethnic groups. The ritual implied a vow by both sides evoking ‘the living dead’ and promising that such killings would not be repeated. If one side did again lift a spear against the other without a very good—​and new—​ cause, the tip of the spear would turn back against the aggressor.” (Harlacher et al. 2006, p. 91)

But since the ideology that underlies customary practices may be generated “from below,” their jurisdiction may not permit their use across ethno-​cultural or other lines. They may not rightfully or necessarily apply to the resolution of conflict between those groups—​ even if customary practices might well be used to resolve within-​group conflict. Within a country like Fiji, for example, the presentation of the tabua would be meaningless for a Fijian of Indian descent. Likewise, the convoking of a panchayat would mean nothing to a Fijian of ethnic descent. Customary practices of justice, therefore, may not be a good solution for problems that spill across ethno-​cultural or other lines (see Huyse, 2008, p. 183). Fourth, their uncodified, informal, and often clandestine nature, along with the questions of power and legitimacy previously raised, leave customary practices of law and justice open to exploitation and corruption. The epitome of this took place in the Solomon Islands, where a series of customary practices known as kastom guide social interactions of all sorts. During the conflict there (1998–​2003), known colloquially as “the Tension,” the customary practice of paying compensation when a person has been killed was distorted

36 

Iteso focus group, conducted by author (August 31, 2006) Kampala, Uganda.

Customary Responses   717 almost to the point of non-​recognition. As one person described it, “[t]‌he government said $100,000 Solomon Islands dollars per life was to be paid. In some cases, the compensation was prepared in advance, and the militants killed at will and then gave compensation to the parents of the deceased, which they accepted, and then had no recourse.”37 Others reported that “in many other cases, perpetrators demanded compensation from the very victims they attacked—​attacked with the intention of eliciting offensive behavior in response that could justify a demand for compensation” (Braithwaite et al., 2010, p. 45; see also Droogan and Waldek, 2015, p. 292). This way of paying the customary compensation, traditionally done at the beginning of a reconciliation process between two parties, had no precedent. Solomon Islanders were shocked at how their customary justice had been warped to such a degree. To make matters worse, at one point the government physically ran out of money after paying out the first 25 claimants each $100,000 Solomon Islands dollars. They were eventually able to fund further compensations with a politicized infusion of cash from the Government of Taiwan (Fraenkel, 2004, pp. 124–​125). With that action, the Government of the Solomon Islands crossed the line between formal and informal practice, and twisted the customary compensation practice even further: the involvement of the government skewed the process of relationship building! The government wasn’t a victim or a perpetrator, but it paid out money. They had to secure a loan from the Government of the Republic of China or Taiwan to pay it. . . . When someone kills someone else, there is standard compensation. And therefore, what is accepted in terms of compensation by the government is questionable. The government has gone beyond what is normal by paying $100,000 per head to people who were killed. How did they arrive at this sum instead of chupu?”38

The problems detailed here are a cautionary tale in understanding the opportunity for the use of customary law and justice. For while such practices can, as many maintain, allow for the input and participation of people well below the national level in shaping how individuals and communities are able to deal with a complex past, there are complexities to these practices that lurk under the surface, often undetected. Huyse (2008, p. 6) notes that “awareness of the many weaknesses was not lacking, but they were too often kept in the shade.” As outsiders to the process, scholars and practitioners of transitional justice must both be aware of the potential weaknesses and must seek not to privilege those whose ideas or authority is not seen as legitimate. It is, further, unreasonable to expect that customary justice will be satisfactory in all situations. In some cases, they may even be perverted to such a degree as to do further damage. Likewise, customary practices may not conform to modern standards in terms of human rights and human dignity.

37  Interview

by author, Cooper Wale, Hon. M., Member of Parliament (January 20, 2014) Honiara, Solomon Islands. 38  Interview by author, Waena, Sir N., former Minister of National Unity, Peace and Reconciliation (January 28, 2014) Lengakiki, Solomon Islands. Chupu is generally defined as an “opening” of a dialogue between two parties, which, after negotiations, should lead to a solovisu or reconciliation.

718   Joanna R. Quinn

6.  Future Prospects in Applying Customary Justice to Atrocity Crimes While customary justice has not traditionally been used to deal with atrocity crimes, there are at least three ways in which customary practices could be harnessed. These might include the formalization of customary practices so as to regularize them for widespread use, or the tandem usage of customary justice alongside of other practices, or even the creation of new practices based on the old that will do the necessary work of helping to secure justice. Each of these is explored in turn here. First, as suggested by the Secretary-​General,39 one solution might be to include customary justice alongside other practices of transitional justice. Many post-​conflict societies indeed opt to use a number of different practices, often sequentially. Instead, there could be real value in carrying out different practices concurrently, or even together. Two of the best-​known examples spring immediately to mind: One such example is Uganda. After the arrest warrants that were issued by the International Criminal Court (ICC) for the leadership of the Lord’s Resistance Army in Uganda and the creation of the new International Criminal Division of the High Court in Uganda, a debate emerged about the complementarity question,40 and eligible jurisdiction. More surprising, perhaps, was that this prompted a discussion between officials from the formal justice sector, along with Acholi elders, about the potential for the complementarity of national-​level justice with customary justice. The idea was even floated that the elders might carry out customary practices in the same courtroom where a formal criminal trial was being carried out, either before or after those proceedings. The thinking was that whatever happened in the formal justice system would not be seen as sufficient to the many thousands who had suffered at the hands of the men who would be tried, but that customary justice would somehow cement the decisions. No such process ever emerged; in fact, formal criminal justice in Uganda, both in the ICC and in the High Court, is in disarray. At the time of writing, two cases from the LRA conflict are in the news, one at the international level and one at the national level, that challenge the complementarity question: Ongwen was found guilty before the ICC, while the Kwoyelo case is before the national courts. Both have faced many, and so far insurmountable, problems. Yet the use of customary practices in Uganda offers a possibility: there certainly could be ways to carry out practices of customary justice in conjunction with more formal proceedings to somehow satisfy more of the constituency that so badly needs justice after atrocity. Another instance is Liberia, where, for example, the Truth and Reconciliation Commission referred directly, albeit briefly, to the customary justice mechanism known

39 

Report of UNSG 2004, Sec 26. Rome Statute of the International Criminal Court specifies in Art. 17 that the ICC has jurisdiction only where a state is unwilling or unable to prosecute. In Uganda, Museveni argued that the Ugandan courts were, indeed, willing to prosecute—​yet he simultaneously offered amnesty and made a referral to the International Criminal Court. Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 40 The

Customary Responses   719 as “Palava Huts” in its final report.41 It recommended that perpetrators should “submit to a justice and accountability mechanism with traditional orientation to foster national healing and reconciliation at the community and grassroots levels creating the opportunity for dialogue and peacebuilding.”42 While the reference was made in 2009, the program was not officially established until 2013, and it has been slow to begin. The effectiveness of the program has yet to be determined (Danso 2016). The reference from one mechanism of transitional justice to another in this way gives the community some idea of the opportunities for justice across the country, and gives them a way to engage with justice at a variety of levels. Second, customary justice practices could be utilized as a strategy in and of themselves, as part of a broader strategy of transitional justice. In their somewhat irregular, colloquial state, however, they are much less wieldy, which makes them more difficult to utilize. However, if they could be written down or codified, that might help to make their use more easily understood, and procedures implemented. The first step is the express provision for their use in the written law of the country and to authorize either their express application or when they may be applied only indirectly. Beyond that, however, their modalities can be spelled out to provide for the ease of their use. One clear example is the Labrador Inuit Nunatsiavut Government’s constitution, which defines many of the customs and provides that the “Nunatsiavut Assembly may make laws for the codification of Labrador Inuit customary law and may give recognition and legal force and effect to a code of Labrador Inuit customary law.43 It also gives “guidance about how Inuit customary law can be recognized and proved if it has not been [expressly] codified” in legislation (Borrows, 2010, p. 54). This kind of regularization was necessary to provide for the setting up of a customary court for the territory. Borrows (2010, p. 56) notes that “some people fear that law will become disconnected from their lived experience and ordinary understandings if it is reduced to paper”—​yet I believe that codification is key to its recognition. Third, and perhaps most controversial, is that “customary justice” could, in fact, be made up. Hobsbawm (1988, p. 6) argues that “[s]‌ometimes, new traditions could be readily grafted on old ones, sometimes they could be devised by borrowing from the well-​supplied warehouses of official ritual, symbolism and moral exhortation.” Examples abound; both Mozambique and Rwanda, as previously described, have “invented” customary justice practices to fit the specific needs of the society. But I want to push the model a little further, and argue that in plural or multi-​ethnic societies, this kind of creative approach could be a good solution, and that adapted hybrid models could result. Hoare believes that an “acceptable cross-​cultural synthesis of [two or more] reconciliation model[s]” could be developed (Hoare, n.d., pp. 17–​18; Hoare, 2008; Quinn, 2014). Indeed, from any combination of systems or practices, it could be possible to find “shared traditional, reconciliatory and justice sensibilities,” or else “principles can be re-​designed and used as a basis for conflict resolution at the national level” (Braithwaite, 2011, p. 8). The result would be a hybrid or synthetic practice that would have meaning for all participants. For example, in Uganda, the majority of customary justice practices are cemented by joining together in a common meal, to eat

41 Government

of Liberia (2009) “Final Report of the Truth and Reconciliation Commission of Liberia” Volume 1: Findings and Determinations (Liberia TRC), p. 76. 42  Liberia TRC, section 15.0. 43  Labrador Inuit Nunatsiavut Constitution (2005), sec. 9.1.5.

720   Joanna R. Quinn together (Quinn, 2014). Partaking in a common meal, then, is one cultural practice that symbolizes more or less the same thing across ethno-​cultural groups. This is the kind of thing that might be used in the development of a common customary practice and which all participants would understand.

7.  Conclusion There are some important lessons to be learned about the use, and potential use, of customary practices of justice. First, the use of customary practices of justice is alive and well throughout the world, although it is dwindling as people turn toward more universal trends, in justice as in other areas of life, that are brought on the winds of globalization. In the justice sphere, this has meant a rejection of customary practices in favor of formal justice approaches. However, there has been a notable use of such practices after conflict. Second, the use of customary practices should not be romanticized. There are problems inherent in customary practices that make the use of such practices difficult or impossible for some within society that need them the most, including women and children. While this is not an insurmountable problem, it is one that must be taken seriously to guarantee access to justice for all. Third, for the most part, customary justice has not been used to adjudicate particular responsibility for atrocity crimes. Rather, customary practices have been used to deal with the effects of atrocity crimes. It is notable that only in Rwanda has what has been called “traditional justice”—​and what is technically not “traditional” at all—​been used for this kind of adjudication, and only then for what might be called “lesser” atrocity crimes. This is in part related to the fact that the scope and scale of modern atrocity crimes is seen to be beyond the capacity of customary justice in its natural state. Fourth, customary practices take place within a context of legal pluralism. That is, they operate alongside other, formal legal practices. This presents a unique opportunity since the integration of the formal with the informal has yet, really, to be explored. There are some instances of this in Canada and Fiji, but there could be real benefits to a closer coordination of the two. This chapter has demonstrated, though, that there are real gaps in the current scholarship on customary justice. The scholarship has documented the phenomena and has engaged in theory-​building based on the case observations. But there are several things that could be done to address such gaps, including a more systematic comparative inquiry into the use of customary justice across cases and obtaining a better understanding of people’s desire to use customary practices of justice to address atrocity crimes.

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722   Joanna R. Quinn Fraenkel, J. (2006). “Power Sharing in Fiji and New Caledonia.” In: Firth, S. (ed.) Globalisation and Governance in the Pacific Islands: State, Society and Governance in Melanesia. Studies in State and Society in the Pacific, No. 1. Canberra: Australia National University, pp. 317–​348. Gates, Hon. Jus. A. 2010. Chief Justice of Fiji. Interview by author. 29 June. Suva, Fiji. Girling, F. 1960. The Acholi of Uganda. London: Her Majesty’s Stationery Office. Quoted in Finnström, S. 2008. Living With Bad Surroundings. Durham and London: Duke University Press. Gluckman, M. Ed. 1969. Ideas and procedures in African customary law: studies presented and discussed at the Eighth International African Seminar at the Haile Selassie I University, Addis Ababa, January 1966. Oxford: Published for the International African Institute by the Oxford University Press. Quoted in Mamdani, M. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton: Princeton University Press. Harlacher, T., Xavier Okot, F., Aloyo Obonyo, C., Balthazard, M., and Atkinson, R. (2006) Traditional Ways of Coping in Acholi: Cultural Provisions for Reconciliation and Healing from War. Kampala: Thomas Harlacher and Caritas Gulu Archdiocese. Hayden, R.M. (1987) “Turn-​Taking, Overlap, and the Task at Hand: Ordering Speaking Turns in Legal Settings.” American Ethnologist 14(2), pp. 251–​270. Hayner, P. (2001) Unspeakable Truths. New York: Routledge. Hoare, F. (n.d.) “Community Trauma Healing in Fiji.” On file with the author. Hoare, F. (2008) “Building Inclusive Community in a Divided Society: From Separate Ethnic Inculturation to an Intercultural Dialogue of Faith in the Multi-​Ethnic Context of the Catholic Church in Fiji.” D.Min. dissertation. Catholic Theological Union at Chicago. Hobsbawm, E. (1988) “Introduction: Inventing Traditions.” In: Hobsbawm, E., and Ranger, T. (eds.) The Invention of Tradition. Cambridge: Cambridge University Press, pp. 1–​14. Huyse, L., and Salter, M. (eds.) (2008) Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences. Stockholm: International Institute for Democracy and Electoral Assistance. Keesing, R. (1993) “Kastom Re-​Examined,” Anthropological Forum 6(4), pp. 587–​596. Lugard, L. (1965) The Dual Mandate in British Tropical Africa. 5th edition. London: Thomas Nelson. Mamdani, M. (1996). Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton, NJ: Princeton University Press. Mayer, A.C. (1956) “Associations in Fiji Indian Rural Society,” American Anthropologist 58(1), pp. 97–​108. Mayer, A.C. (1957) “Factions in Indian and Overseas Indian Societies, Part 4: Factions in Fiji Indian Rural Settlements,” The British Journal of Sociology 8(4), pp. 317–​328. McEvoy, K., and McGregor, L. (eds.) (2008) Transitional Justice from Below: Grassroots Activism and the Struggle for Change. Portland, OR: Hart Publishing. Merry, S.E. (1988) “Legal Pluralism.” Law and Society Review 22(5), pp. 869–​896. Momoivalu, M. (1994) “A Separate System of Justice.” The Review, pp. 40–​43. Novelli, B. (1999) Karimojong Traditional Religion. Kampala: Comboni Missionaries. Osaghae, E.E. (2000) “Applying Traditional Methods to Modern Conflicts: Possibilities and Limits.” In: Zartman, I.W. (ed.) Traditional Cures for Modern Conflicts: African Conflict “Medicine.” Boulder, CO: Lynne Rienner Publishers, pp. 201–​217. Quinn, J.R. (2009a) “Problematizing the Formal/​Informal Distinction in Customary Justice: Mechanisms of Acknowledgement in Uganda.” The Uganda Living Law Journal 7(2) pp. 1–​15 (unpublished).

Customary Responses   723 Quinn, J.R. (2009b) “What of Reconciliation? Traditional Mechanisms of Acknowledgement in Uganda.” In: Quinn, J.R. (ed.) Reconciliation(s). Montreal: McGill-​Queen’s University Press, pp.174–​206. Quinn, J.R. (2014) “Mad Science? Possibilities for and Examples of Synthetic (Neo)traditional Practices of Justice and Acknowledgement.” Air and Space Power Journal—​Africa and Francophonie 5(3), pp. 48–​66. Quinn, J.R. (2015) “The Impact of Internal Conflict on Customary Institutions and Law: The Case of Uganda,” Journal of African Law 58(1), pp. 220–​236. Ralogaivau, R.F. (2006) “A Primer on Fiji’s Great Council of Chiefs.” Fiji Times, April 27. Ratuva, S. (2003) “Re-​Inventing the Cultural Wheel: Re-​Conceptualizing Restorative Justice and Peace Building in Ethnically Divided Fiji.” In: Dinnen, S., Jowitt, A., and Newton Cain, T. (eds.) A Kind of Mending: Restorative Justice in the Pacific Islands. Canberra: Pandanus Books, pp. 149–​163. Robins, S. (2010) “Transitional Justice as an Elite Discourse: Human Rights Practice between the Global and the Local in Post-​Conflict Nepal.” A paper presented at the Annual Convention of the International Studies Association. New Orleans. February 17. Ross, R. (1996) Returning to the Teachings. Toronto: Penguin. Rouland, N. (1994). Paralegal Anthropology. Translated by Planel, P.N.G. Stanford, CA: Stanford University Press. Schmeidl, S. (2009) “Successful Cooperation or Dangerous Liaison? Integrating Traditional and Modern Justice Mechanisms in Southeastern Afghanistan.” A paper presented at the Annual Convention of the International Studies Association. New York, NY. Shaw, R., Lars. W., and Hazan, P. (eds.) (2010). Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford, CA: Stanford University Press. Silko, L.M. (1996) Yellow Woman and a Beauty of the Spirit: Essays on Native American Life Today. New York: Simon and Schuster. Toro, M. (1973) “Disputes in a Fijian Village Setting.” M.A. thesis. University of the South Pacific. Waldorf, L (2006) “Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice.” Temple Law Review 79(1), pp. 1–​87. Waliggo, J.M. (2003) “The Human Right to Peace for Every Person and Every Society.” A paper presented at Public Dialogue organized by Faculty of Arts, Makerere University in conjunction with Uganda Human Rights Commission and NORAD. Kampala, Uganda. December 4. Author’s collection. Weber, M. (1968) Economy and Society: An Outline of Interpretive Sociology. New York: Bedminster Press. Zartman, I.W. (ed.) (2000) Traditional Cures for Modern Conflicts: African Conflict “Medicine.” Boulder, CO: Lynne Rienner Publishers. Zorn, J.G., and Corrin Care, J. (2002) “Proving Customary Law in the Common Law Courts of the South Pacific.” Occasional Paper Number Two. London: The British Institute of International and Comparative Law.

CHAPTER 30

Reparations a nd t h e Role of Ap ol o g i e s Stephanie Wolfe 1.  Introduction Reparations1 and apologies2 have become deeply intertwined over the years, often serving as a basis for redress and reparation movements (RRMs).3 Although they form two key components of transitional justice after mass atrocity crimes,4 in isolation they are deeply problematic. As will be discussed, reparations without an apology has been derogatorily referred to as “blood money;” a payout for lives lost, but with no true responsibility taken. Apologies without reparation have likewise been flawed, often seen by the victims as hollow words utilized to deflect true responsibility. In isolation, these measures can be used by the state to avoid coming to terms with past injustices. Utilized together, however, they can

1  The term “reparation(s)” refers to some form of symbolic material compensation for that which cannot be returned, such as human life, a flourishing culture, socioeconomic status, physical or mental health, and/​or cultural identity (Barkan, 2000). Alternative definitions have been put forth by Brooks (1999) which differentiate between actions that offer atonement and those which do not; in addition to monetary versus non-​monetary reparations. 2  Barkan (2000, p. xix) defines an apology as “an admission of wrongdoing, a recognition of its effects, and, in some cases, an acceptance of responsibility for those effects and an obligation to its victims.” Apologies can be divided into several different categories. See Tavuchis (1991) for a detailed analysis. In addition, Negash (2006, p. 2) references political apologies as an “apology that directly involves nation-​states,” whereas Nobles (2008, p. 5) discusses official apologies as “offered by and requested of governments, as opposed to heads of state.” 3  This chapter will utilize the term “redress and reparation” for all collective actions that attempt to come to terms with past atrocities and injustices. RRMs (i.e., redress and reparation movements) will be utilized for social movements which are mobilized to seek redress and reparation for atrocity or injustice. See Wolfe (2014) for further analysis on the evolution of RRMs. 4  I define atrocities as those crimes recognized by the Rome Statute of the International Criminal Court: genocide, crimes against humanity, and war crimes. Historical injustices will also be used for these crimes to indicate state atrocities where the victimized population is less clear due to the passage of time and/​or shifting borders.

726   Stephanie Wolfe form the beginning of an apologetic stance, in which the state truly engages with those that it victimized, and politically atones for past abuses. This chapter will explore the normative trend of coming to terms with past state abuses, with an emphasis on reparations and the role of apologies. Through reviewing the current literature, one will see the various approaches that practitioners and theorists have taken to these concepts. I will then make the argument that reparations and apologies must be linked in order for states to come to a political reconciliation5 with victims of atrocity crimes.

2.  Reparation Politics Reparation politics6 directly counters the idiom that history is written by the victors. Instead we see an emergent field of study where various actors7 attempt to address past wrongs. These attempts at redress include a wide spectrum of acts that range from the highly bureaucratic (trials, reparations, and administrative/​legislative changes) to the highly symbolic (apologies, memorials, and artistic responses). The resultant narrative is a story that is no longer told exclusively by those who committed atrocities, but a history which reflects the voices of those once victimized. Since the end of World War II, redress and reparation movements have been characterized by increasingly normative expectations from both the victims and the international community. The expectation, arising with the creation of the first reparation programs for victims of the Holocaust8 and then becoming more prevalent after the end of the Cold War, is that governments will engage in some form of reparation politics with those that they have victimized, even if victimization occurred in the distant past and under different regimes (Neumann and Thompson, 2015; Wolfe, 2014).

5  Schaap

(2005) argues that political reconciliation does not presuppose that one must engage in forgiveness to restore a sense of community, but rather creates a pathway for the two groups to co-​exist within a common space. For more on acknowledgment, apologies, and reconciliation, see also Govier (2006). 6  See Torpey (2006) for one of the seminal texts on reparation politics. 7  Coming to terms with the past is dominated by state actors; however, organizations, institutions, and individuals have also been engaging with this trend. The United Nations has been heavily involved with creating guidelines, conducting research, and other reparatory actions. See de Feyter et al. (2005) and Lawther et al. (2017) for further analysis of actors within the international system. The Catholic Church has given several apologies for inaction during the Holocaust and the Rwandan Genocide. See Drozdiak, W. (1998) “Vatican Apologizes to Jews.” The Washington Post. March 17. Available at: https://​www.washingtonpost.com/​archive/​politics/​1998/​03/​17/​vatican-​apologizes-​to-​jews /​ce5ea6e9-​ bd97-​4022-​b639-​288342b63455/​(Accessed October 1, 2019); “Rwandan Genocide: Pope Francis Asks Forgiveness for Church Failings.” (2017) BBC News. March 20. Available at: https://​www.bbc.com/​news/​ world-​africa-​39331338 (Accessed October 1, 2019); and Marrus (2008). Multi-​national corporations and banks have been involved in reparation litigation; see Ibhawoh (2008) and Bazyler and Alford (2006). To see how reparations can be carried out on multiple levels involving international and local actors, see the case of Rwanda reparations in Rombouts and Vandeginste (2005). 8  The Holocaust refers to the estimated six million Jewish individuals who perished during the Nazi regime. See Gilbert (1985) and Hilberg (1961).

Reparations and the Role of Apologies    727 Today, redress and reparation is seen as a fairly standard way of coming to terms with historical injustices and current atrocities to the point that it is noteworthy when governments refuse to engage with those whom they victimized.9 This expectation does not imply that redress and reparation will always take the form of monetary reparations or explicit public apologies that this chapter will discuss in subsequent sections. The actions of the state might not satisfy the victims, or even be seen in a positive light by those that the state is attempting to engage. What this expectation does imply is that the state will try to engage in this form of politics (Wolfe, 2014). Furthermore, Neumann and Thompson (2015) argue that it was initially assumed that once a historical wrong or atrocity was addressed, it could then be forgotten. Yet, over time this assumption has proven false. Conversely, it is now taken for granted that the mastering of the past is not possible. Despite not being able to master the past, however, it is important that states engage in reparation politics. Reparations and apologies have directly contributed to political reconciliation, mental healing, restoration of the legal order, and more.10

3.  Historical Background Prior to World War II, reparation was defined as “compensation for an injury or wrong, esp. for wartime damages or breach of an international obligation” (Garner, 1999, p. 1301). Losing states would pay large indemnities to other states in order to compensate for damages. This was the cost of making war and losing, regardless of who was the aggressor. Furthermore, the obligation to pay reparations did not signify moral judgement against the losing side. Instead, it was guided by relative power advantages, that is, the winning state imposing fines upon those who lost (Lu, 2007). Reparations, in addition to compensation, apologies, trials, and other similar forms of redress, were a part of politics during historical eras, and as such, were concerned with the state, not the individual (Wolfe, 2014).

3.1. Pre–​World War II White (2001) identifies reparations paid by the French following the Napoleonic Wars (1803–​1815) and the Franco-​Prussian War (1870–​1871) as two of the largest, most successful coerced transfers of funds. Reparations, at this time, were seen as a normal treaty obligation

9  Japan

and Turkey are two countries often noted for refusing to engage with those that they have victimized. See Wolfe (2014) on Japan’s problematic engagement of redress and reparation with the survivors of the comfort women system, Son (2018) on performative redress, and Yamazaki (2006) for an analysis of Japanese apologies. See Theriault (2012) on Turkey’s refusal to recognize the Armenian Genocide, and on reparations and the Armenian Genocide see Theriault et al. (2015). 10  On the role of mental health and healing see Hamber (2009) and Wemmers (2014). For an in-​depth examination of historical and reparatory justice, in addition to the importance of restoring the legal order, see Teitel (2000). For reconciliation and membership in communities, see Nobles (2008) and de Grieff (2007).

728   Stephanie Wolfe and a common component of post-​war financial settlements. Thus, as part of the peace package following the Napoleonic and Franco-​Prussian Wars, the winning sides assessed a penalty against France for threatening the European order and as a deterrent against future aggression. The French completed their reparation payments ahead of schedule and resumed their role within the European balance of power state system (White, 2001). The French reparations represented the normalcy of states paying fines to those who won the war. Reparations, or compensation, was further codified in the 1907 Hague Convention,11 however, the focus was on international armed conflict and dealt only with states’ rights and responsibilities. The Treaty of Versailles (1919),12 which ended World War I, is the most well-​known example of what reparations meant prior to World War II. Unlike previous reparation treaties, however, Article 231 assigned an explicit, moral blame to Germany (Baruch, 1920). The obligation to provide reparations to those who won the war was expounded upon in Article 232: “[t]‌he Allied and Associated Governments, however, require, and Germany undertakes, that she will make compensation for all damage done to the civilian population of the Allied and Associated Powers and to their property during the period of the belligerency.” Although Article 232 clearly referred to damages done to civilian populations, it did not transform the historical understanding of reparations from being a state issue. Individuals were not seen as independent actors who held rights apart from their state. They were citizens of the state, and thus an extension of the state and state power. Oppenheim’s treatise International Law in 1912 stated: “if individuals who possess nationality are wronged abroad, it is their home State only and exclusively which has a right to ask for redress, and these individuals themselves have no such right” (cited in Buergenthal, 2006, p. 19). In other words, prior to World War II, individuals had no independent rights apart from those their state granted them. People were merely objects of international law and did not differ from the state’s territory or other possessions. Reparations following World War I were generally viewed by the Allied and Associated powers as a legitimate and essential part of an accountability framework. It was a means to hold German leaders and the German people accountable for causing a world war which claimed millions of lives (Lu, 2006). Although the Treaty of Versailles is now widely disparaged for contributing to the rise of Hitler and thus World War II, it was widely supported at the time and considered quite normal.13 In addition, reparations began to be codified in other legal texts and adjudicated in international cases.14

11  Article 3 of the Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted October 18, 1907, entered into force January 26, 1910) (Hague Convention) stated: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” 12  The Treaty of Peace between the Allied and Associated Powers and Germany (adopted June 28, 1919, entered into force January 10, 1920) (Treaty of Versailles). 13  The U.S. State Department argued that “reparation from wrong inflicted is of the essence of justice” (quoted in Lu, 2007, p. 198). President Wilson concurred that when “an individual has committed a criminal act, the punishment is hard, but the punishment is not unjust” (quoted in Lu, 2007, p. 198). 14  For a detailed analysis of international law and reparations see Evans (2012).

Reparations and the Role of Apologies    729

3.2 Post–​World War II Prior to World War II, all previous reparation agreements exclusively addressed the damages caused by a vanquished state during wartime and were drafted in conjunction with the oversight of the victorious state. The German reparations for Holocaust victims enacted after World War II, however, would dramatically shift the conceptual understanding behind reparations. Following the end of the war, reparations would transition from post-​war fines to a symbolic material compensation for that which cannot be returned. In parallel, individuals would become recognized within international human rights law and international criminal law as having rights independent of the state.15 The German reparations programs are now identified as the foundation of a new norm of redress and reparation. It was not instantly recognized as a new norm, however, nor was it widely popular within the domestic populations of Germany and Israel. When Israel was founded in 1948, the state demanded reparation payments from East and West Germany to enable refugees victimized by the Holocaust to rebuild their lives. According to the legal and historical understanding of reparations, however, Israel would not have been eligible for monetary compensation from either German state, as Israel itself was not a state during World War II. Despite the lack of legal obligation, West German Chancellor Konrad Adenauer stated that “unspeakable crimes were committed in the name of the German people, which created a duty of moral and material reparations” (quoted in Pross, 1998, p. 19). West Germany voluntarily entered into negotiations with Israel on March 21, 1952. Six months later, the Reparations Agreement between Israel and West Germany, or the Luxembourg Agreement,16 was signed. West Germany and Israel slowly began a political reconciliation. In contrast, East Germany (GDR) would refuse to engage in reparation politics, and the resultant relationship between GDR and Israel would best be described as icy.17 The Luxembourg Agreement permanently altered the international community’s understanding of what reparations meant. All previous reparation agreements had been between warring states and were negotiated as part of a peace treaty. The Luxembourg Agreement, however, was negotiated between a state that was deemed to be a successor state but legally had not existed during World War II (West Germany), a state which did not exist until 15 

See the Universal Declaration of Human Rights (10 December 1948) GA Res. 217A (III), UN Doc. A/​810 at 71 (UDHR). 16  Agreement between the State of Israel and the Federal Republic of Germany No. 2137, (adopted September 10, 1952, entered into force March 27, 1953 (The Luxembourg Agreement). See Honig (1954) for further analysis. For the text of the agreement see Luxembourg Agreement and associated documents [Excerpts] in de Greiff (2006). 17  Timm (1997, p. 110) gives an account of the various negotiations between Israel and the GDR, including a $1 million check that the Claims Conference (a non-​governmental organization created in 1951 from 23 major Jewish national and international organizations to act on behalf of the Jewish community in regard to advocating, obtaining, and later administrating, Jewish reparations claims) returned in 1976 due to it being insufficient. In the late 1980s significant advances were made toward reconciliation and a reparations agreement. However, on October 3, 1990, East and West Germany were reunited. This eliminated the possibility of East German reparations, but opened the door for further claims against reunified Germany. For more information on Claims Conference see http://​www.claimscon.org/​about/​ history/​(Accessed October 16, 2019).

730   Stephanie Wolfe three years after the war was concluded (Israel), and a non-​governmental organization (the Claims Conference), which also had not existed during WWII. Furthermore, the Agreement was negotiated seven years after the war concluded (Colonomos and Armstrong, 2006). The Luxembourg Agreement addressed all actions committed “during the National Socialist regime of terror,”18 and focused on the damages and losses to individual victims of the Holocaust, as represented by Israel and the Claims Conference. The funds paid to Israel were to “serve the purpose of expanding opportunities for the settlement and rehabilitation of Jewish refugees in Israel.”19 The Claims Conference would focus on the settlement and rehabilitation of Jewish refugees in the United States and other Western European countries. The Luxembourg Agreement obligated West Germany to enact a series of domestic laws that allowed individuals to request reparations because of physical and moral suffering during Nazi persecution (Colonomos and Armstrong, 2006). The resultant reparation programs would compensate for a variety of personal damages—​including physical injury, the loss of freedom, property, income, professional advancement, or financial advancement—​if the reason for said damages was due to persecution based on political, social, religious, or ideological grounds. In addition, it compensated both those who were persecuted by the Nazis and remained within West German borders and those who were persecuted but relocated to a democratic country following World War II (Teitel 2000; Wolfe, 2014). While the Luxembourg Agreement obligated West Germany to create future reparation laws, it is important to reiterate that the country was under no legal obligation, nor normative expectation, to enter the treaty negotiations with Israel or sign the Luxembourg Agreement. Furthermore, West Germany would later voluntarily pass additional reparation laws that far exceeded original expectations of those involved, including the expansion of reparation programs to citizens originally excluded from the 1952 agreement (such as non-​Jewish slave laborers,20 Romani victims,21 and those citizens who were originally excluded due to residing in communist countries). West Germany’s engagement in further reparation programs, memorials, apologies, and other programs would fundamentally alter the conceptual understanding of reparations throughout the world. Its engagement with reparations would eventually launch a new understanding of state responsibility to victimized groups and create the foundations of the emerging field of reparation politics and transitional justice (Colonomos and Armstrong, 2006; Wolfe, 2014). Reparations and restitution required a fundamental shift in thinking within West German society. A number of German-​born philosophers and political theorists, as discussed later, were influential in this shift. These individuals struggled with—​and published—​their ideas on the need for Germany to come to terms with its collective responsibility for the atrocities which occurred during the Nazi regime and the inherent moral responsibility of the German people to engage in reparations. These early publications helped to shape

18 

Luxembourg Agreement, Preamble Luxembourg Agreement, Art. 2. 20  See Authers (2006) for the German forced and slave labor reparation programs. 21  The Roma, or Gypsies, were also targeted for genocide based on their ethnicity; an estimated 250,000 to 500,000 were killed. See Kenrick and Puxon (1972) for a general overview, von dem Knesebeck (2011) for the Romani struggle in regard to reparations and acknowledgement. For the purpose of this chapter, Roma will refer to the group ethnicity and Romani as an adjective. See Vermeersch (2007) for further discussion on terminology. 19 

Reparations and the Role of Apologies    731 the broader philosophical debate on reparations. The emergence of these new debates is credited to Karl Jaspers’ highly influential publication Die Schuldfrage in 1946, subsequently published in English as The Question of German Guilt (Rabinbach, 1997; Torpey, 2006). Jaspers, a German national who was “retired” from his university position in 1937 due to having a Jewish spouse, was two weeks away from deportation when the Allies liberated Heidelberg. Upon restoration to his profession in September 1945, he began to prepare lectures on German guilt.22 These lectures would be the foundation of his seminal text on collective responsibility after an atrocity. Jaspers begins: Almost the entire world indicts Germany and the Germans. Our guilt is discussed in terms of outrage, horror, hatred, and scorn. Punishment and retribution are desired, not by the victors alone but also by some of the German emigrés and even by citizens of neutral countries. . . . People do not like to hear of guilt, of the past; world history is not their concern. They simply do not want to suffer any more; they want to get out of this misery; to live but not to think. There is a feeling as though after such fearful suffering one had to be rewarded, as it were, or at least comforted, but not burdened with guilt on top of it. . . . And yet, though aware of our helplessness in the face of extremity, we feel at moments an urgent longing for the calm truth. . . . We want to see clearly whether this indictment is just or unjust, and in what sense. For it is exactly in distress that the most vital need is most strongly felt: to cleanse one’s own soul and think and do right, so that in the face of nothingness we may grasp life from a new authentic origin. We Germans are indeed obliged without exception to understand clearly the question of our guilt, and to draw the conclusions. What obliges us is our human dignity. (Jaspers, 1961, pp. 27–​29)

At a time when guilt and responsibility were ignored, and reparations were seen as a function of international politics, Jaspers made a clear and compelling argument for a nuanced understanding of collective and individual guilt following mass atrocities. The German collective, he argued, had a political responsibility to make reparation to victims of the Nazi regime. Scholars argue that no single intellectual contributed more to the restructuring of German thought post–​World War II than Jaspers.23 However, this does not imply that Jaspers was the only German-​born philosopher working on the conceptual issues of how states (specifically Germany) should come to terms with the past. Jürgen Habermas,24 Hannah Arendt,25 and Thomas Adorno26 were also highly influential. While not exclusively focused on the idea of reparations, these philosophers and the discourse in which they engaged helped to

22 

See Lang (2006) for a more in-​depth discussion of Jasper’s lectures on German guilt. (2006) credits The Question of German Guilt as laying the foundation for the emerging discourse on reparation politics, and Rabinbach (1997, p. 130) argues that Jaspers’ text was a founding narrative of the “European German,” and “of a neutral, anti-​militarist and above all ethnical [sic] Germany.” 24  Habermas (1986) was a German philosopher well known for his work on social theory. See also Habermas (1998). 25  Arendt (1973; 1994) was a well-​known German American political theorist who has written on totalitarianism and the banality of evil. 26  Adorno (1986) was a German philosopher who is well known for his work in critical theory of society. 23  Torpey

732   Stephanie Wolfe influence the domestic debates in West Germany. They would illustrate the foundational shifts in thinking which allowed the reparations program to be developed and implemented.

3.3. Proliferation of redress and reparation German reparations for crimes during World War II and the accompanying philosophical conceptions of coming to terms with the past would lead to the emergence of a redress and reparation norm for Nazi-​related crimes. Pross (1998, Appendix B) and Wolfe (2014, Table A.3–​A.4) illustrate that the number of reparations claims filed and approved have generally increased over the years. This includes multiple reparations laws that were subsequently passed in Germany and the expansion of reparation programs to, and administered by, various countries and funds. Redress and reparation initially centered on Jewish victims, whereas Romani victims and others deemed forgotten, would have to fight for recognition.27 Although the German reparations programs are now credited as paradigm-​shifting and held up as a model for other countries and victimized groups, the decades following the Luxembourg Agreement were quite hostile for reparation and redress advocates within West Germany.28 Despite West Germany setting a precedent for engaging with those that the state had victimized, the practices associated with transitional justice and reparation politics would lie dormant for many decades as the international community gave primacy to Cold War politics. Bassiouni (2003) argued that during the Cold War international society held little interest in pursuing justice for atrocities, despite the fact that there were approximately 250 conflicts during this time period, with a minimum of 70 million casualties. To assess the claim that there was little interest in justice, we can examine the proliferation of redress and reparation. The Justice Cascade (Sikkink, 2011) examines the emergence of a global trend to hold political leaders criminally accountable for atrocity crimes via international and domestic trials. Sikkink finds that the first such trials after the Holocaust era were in Greece and Portugal in the mid-​1970s. The prosecutions, however, were minimal during the 1970s and 1980s. It was not until the Cold War ended in 1991 that a norm cascade29 began and atrocity crime trials began to proliferate. Similarly, Unspeakable Truths (Hayner, 2002) examines the proliferation of truth commissions in a comparative study. Here we find that 13 truth 27  During spring 1986, testimonies were held in the Berlin House of Deputies on creating a hardship fund for forgotten victims of Nazism. The label “forgotten victims” now includes former communist victims, those deemed antisocial, those forcibly sterilized, homosexuals, Gypsies/​Roma, and so forth. See Pross (1998) for more details. In addition, see von dem Knesebeck (2011) for an analysis of the Roma quest for redress and reparation. 28 For analysis of the redress and reparation movement in West Germany see Pross (1998). For discussion on the German reparations program being paradigm-​shifting and/​or held as a model see Wolfe (2014) and Roht-​Arriaza (2004). 29  “Norm cascade” is in reference to the norm lifecycle, where the three phases are norm emergence, norm cascade, and norm internalization (Finnemore and Sikkink, 1998). Although Sikkink does not specifically address transitional justice or reparation politics, both fields consider trials to be an important component. Sikkink (2011) situates her work as part of a bigger movement for accountability in human rights.

Reparations and the Role of Apologies    733 commissions were established between 1991 and 2001, compared to the 8 truth commissions created during the entirety of the Cold War (Hayner, 2002). Thus, truth commissions, like atrocity crime trials, became more common within international society after the conclusion of the Cold War. Like trials and truth commissions, one sees that reparations and apologies occurred sporadically in the decades following World War II. During this time, the West German reparations program remained fairly unique and was seen as a domestic policy to account for atrocities committed by the Nazi regime.30 Other states did not emulate the ideals of coming to terms with the past via reparations programs until the 1980s. Furthermore, the idea of a state apologizing was not common. The 1970 image of West German Chancellor Willy Brandt kneeling at the Warsaw Ghetto Memorial in apology was so unprecedented that it is literally memorialized in stone.31 Individual nations would eventually create reparation programs, with Argentina in 1984 being one of the first states other than West Germany to engage in this type of redress. Following Argentina’s transition to democracy, redress and reparation advocates would push for justice in response to serious human rights violations that occurred during Argentina’s Dirty War (1976–​1983).32 Furthermore, the United States’ and Canada’s offering of apologies and reparations in 1988 for the World War II internment of individuals with Japanese heritage33 was a highly significant turning point for redress and reparation advocates. That two democratic countries who were not transitioning from authoritarian regimes would offer reparations and apologies indicated a new norm was emerging within international society: the expectation that states would come to terms with their past. Redress and reparation began to proliferate throughout international society in the 1990s with an increasing number of countries coming to terms with past state abuses. Countries increasingly investigated former atrocities through truth commissions, hybrid courts, and other mechanisms in addition to engaging in reparations. Separately, many states would offer apologies for state crimes, both those committed recently and in the more-​distant past.34 As an increasing number of states engaged in reparation politics, scholars and practitioners would debate what a reparations movement looked like, what reparations entailed, basic definitions, and differing conceptual, philosophical, and political understandings of the term. While the variances and scholarly debates will be explored in Section 3 of this chapter, it is important to note that significant strides in conceptual understandings were achieved on December 16, 2005, with the General Assembly of the United Nations approving the Basic Principles and Guidelines on the Right to a Remedy and

30 

Versus being seen as a role model or trend setter, as it is often perceived now. See “Deutsch-​polnische Beziehung: Willy Brandts grӧßte Geste.” (2010). Spiegel Online, December 3. Available at https://​www.spiegel.de/​fotostrecke/​willy-​brandt-​in-​warschau -​fotostrecke-​106762-​8.html (Accessed July 1, 2019). 32  This included a broad policy of economic reparations. See Guembe (2006) for more information on Argentina’s program. 33  For more information on the Japanese American experience, see Personal Justice Denied (1997). Report of the Commission on Wartime Relocation and Internment of Civilians. Washington, D.C.: The Civil Liberties Public Education Fund and Inada (2000). 34  One book title would declare that we are in The Age of Apology (Gibney et al., 2008). 31 

734   Stephanie Wolfe Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereafter referred to as Basic Principles).35 In 1988, the United Nations Sub-​Commission on Prevention of Discrimination and Protection of Minorities36 recognized that victims of human rights abuses should be entitled to fair and just compensation, restitution, and rehabilitation. The Sub-​Commission appointed Special Rapporteur Theo van Boven to undertake a study with the goal of developing basic principles and guidelines for redress and reparation. After crafting numerous reports and draft versions of the Basic Principles, van Boven was replaced by legal expert M. Cherif Bassiouni. The final draft would be adopted by the Human Rights Council after consultations with van Boven, Bassiouni, representatives of states, intergovernmental, and non-​governmental organizations (Shelton, 2005). The resultant document demonstrates that reparation and redress were not new legal obligations, but could be found throughout various documents, treaties, and laws. It brings clarity to a field where most of the concepts were contested and debated. It also brings complications, however, as redefining terms already in use by scholars and practitioners means that no one knows exactly which definition was utilized unless previously stated. Whereas many scholars use a very narrow definition of reparations, the United Nations uses a broader definition. Reparations, according to the UN, includes: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-​repetition. Each form is elaborated in Basic Principles Articles 19–​23. In brief, these are: 19. “Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. . . .” 20. “Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case . . .” 21. “Rehabilitation should include medical and psychological care as well as legal and social services.” 22. “Satisfaction should include, where applicable, any or all of the following: . . . (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; . . . (e) Public apology, including acknowledgement of the facts and acceptance of responsibility; . . .” 23. “Guarantees of non-​repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention: . . .

35  United Nations General Assembly (2006). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/​RES/​60/​147 (21 March 2006). 36  A sub-​committee of the United Nations Human Rights Council, which has been renamed the Sub-​ Commission on Promotion and Protection of Human Rights in 1999.

Reparations and the Role of Apologies    735 (f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises; . . . (h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.”37 The definition put forth by the United Nations includes apologies as a form of reparation, whereas other scholars separate the two terms as distinctive forms of reparation politics or transitional justice.38 It is clear that there are still multiple debates on what is reparations, and that the scholarly and activist communities are divided on what a RRM is, what reparations entail, basic definitions, and the differing conceptual, philosophical, and political understandings of these terms. The next section(s) will highlight some conceptual overviews regarding reparations and apologies.

4.  Conceiving Reparations Reparations have been defined in multiple ways within the literature. The debates that engulf RRMs draw heavily upon the understandings of policymakers, victim groups, and other involved actors. Scholars post-​2005 will often adopt the UN definition of reparation: that reparation includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-​repetition. In this context, reparations have very little to do with the symbolic issuance of money, and reparation can take a multitude of forms both material and symbolic. While the UN definition is broad and encompassing, many scholars still prefer to utilize narrower definitions. For example, the definition that I utilize was put forth by Barkan (2000): some form of symbolic material compensation for that which cannot be returned, such as a human life, a flourishing culture, a strong economy, or cultural identity. This definition makes a clear distinction among reparation (a symbolic payment for that which cannot be returned or repaired), restitution (the return of actual property), and compensation (payment for damages or losses that can be quantified). Roht-​Arriaza (2004) argues that the basic premise of reparations is paradoxical—​ reparations are intended to return or restore victims to the state they would have been in had the violation not occurred. This is an impossible task. One cannot restore the lives of those killed, the health of those tortured, or the lost years of those interned. Yet, to do nothing in response to atrocity crimes is morally wrong.39 Furthermore, reparations are

37 See https://​www.ohchr.org/​EN/​ProfessionalInterest/​Pages/​RemedyAndReparation.aspx for the full text of this document (United Nations General Assembly 2006). 38  Different scholars define each term differently. For example, Torpey (2006) utilizes reparation politics, reparations, and apologies. Barkan (2000), Brooks (1999), and Wolfe (2014) clearly distinguish between the terms as well. 39  Zweig (2001) discusses the morality of German reparations, including an extremely salient point that if Germany had not engaged in reparations, then the country would have financially benefited from Nazi-​era crimes, as the state is legally the inheritor of any assets from families wiped out completely. As

736   Stephanie Wolfe supposed to be the embodiment of society’s recognition of the atrocity crime and a physical manifestation of remorse and atonement (Roht-​Arriaza, 2004). Within the public realm, reparations are often seen as synonymous with money,40 as monetary compensation is often the most common avenue for amends to be made. Since the pre-​existing culture and everyday lives of those who survived atrocities are beyond repair, it is not possible to compensate for those crimes. Despite the fact that repair is not possible, reparations serve as a symbolic gesture. Monetary payment can ease the burden on survivors and serve as a concrete example of state apology. A narrow definition of reparation also helps to clarify which acts of redress and reparation are more symbolic (reparations for lives lost) and which are more legalistic (specific items returned in restitution or compensation for harms that can be quantified). In addition, defining reparations more narrowly can also differentiate between redress and reparation measures that provide benefits to the victims directly and those which have a reparative impact, but do not directly benefit those who were victimized (such as trials and institutional reform) (de Greiff, 2007).

4.1. Reparation for whom? Defining reparations is only the beginning of the conceptual tensions that dominate the field. Another set of debated questions revolves around defining victimhood and who should be a beneficiary of reparations.41 Identifying victims of atrocities for the purpose of creating a reparations program has been problematic in the past and has contributed to creating a privileged hierarchy of victims.42 For example, the reparations program in Chile43 focused solely on those who were killed and disappeared at the hands of security forces. The government justified this decision as focusing their limited funds on the “worst”

discussed earlier, the German reparations program was referred to as a moral necessity by politicians and philosophers alike. 40  Walker (2010) argues that monetary payments are a common medium for rectification of the injustices and can be useful to many. Despite the fact that money cannot make up for the loses, it can relieve the victim of having to unfairly bear the burden of the wrongful harms and losses. In the more recent debates on reparations within U.S. society, Friedersdorf wrote for The Atlantic: “When average Americans hear reparations, they still think of ‘the idea that some form of compensatory payment needs to be made to the American descendants of slaves.’ ” Friedersdorf, C. (2019) “What Do 2020 Candidates Mean When They Say Reparations?” The Atlantic, June 5. Available at https://​www.theatlantic.com/​ ideas/​archive/​2019/​06/​reparations-​ definition-​2020-​candidates/​590863/​(Accessed June 7, 2019). These comments are reflective of my own observations that the general public equates the term “reparations” with a cash payment. 41  Posner and Vermeule (2003, p. 698) argue that reparation claims involve three relationships: “(1) the relationship between the original wrongdoer and the original victim; (2) the relationship between the original wrongdoer and the possible payer of reparations and (3) the relationship between the original victim and the possible claimant or beneficiary of reparations.” 42  For more information on hierarchy of victimization in general see Berry (2018). 43  Chile was governed by a military dictatorship from 1973 to 1990. During this time the regime was characterized by severe human rights abuses. Redress and reparation acts were then implemented from 1990 to 2003. For more information see Lira (2006).

Reparations and the Role of Apologies    737 cases. Survivors who were tortured in prisons or forced into exile, however, were angry at the lack of recognition for their suffering and believed that the state was trying to gloss over the extent of the crimes committed (Roht-​Arriaza, 2004). From this example, one can see the difficulty of prioritizing one form of victimization over another (i.e., providing reparations for killings versus torture), which can lead to further resentment. In countries where victims were primarily chosen due to race or ethnicity, reparation programs followed suit. This leads to problems, however, when victim identification is multifaceted. For example, within the German reparations program, claims were denied to non-​Jewish spouses who followed their loved ones into hiding, because, technically, they could have divorced their husband or wife (Pross, 1998). Thus, non-​Jewish spouses were excluded from the victimized group, even though they suffered persecution and losses while in hiding. Similar issues can be seen in Rwanda with the exclusion of individuals who do not fit the traditional narrative of a victim. Over the course of 100 days, approximately 800,000 individuals were killed, primarily Tutsi, in a state-​sponsored genocide.44 Similarly to the initial German programs, individuals who were in mixed marriages, or who were children of mixed marriages, are sometimes denied the status of survivor. Despite these individuals losing family members, property, and/​or socioeconomic status, they often do not qualify for the limited reparations programs that exist.45 Controversy on identifying victims has not been limited to transitioning states. When the United States Civil Liberties Act of 1988 (CLA)46 was legislated to provide reparations for the Japanese American internments during World War II, Congress had strict criteria. In order to receive reparations of $20,000 and a presidential apology, applicants had to meet the following criteria: 1. “alive on August 10, 1988” 2. “a United States (U.S.) citizen or permanent resident alien during the internment period December 7, 1941 to June 30, 1946” 3. “a person of Japanese ancestry, or the spouse or parent of a person of Japanese ancestry” 4. “evacuated, relocated, interned, or otherwise deprived of liberty or property as a result of Federal government action during the internment period and based solely on their Japanese ancestry”47 Although seemingly straightforward, this disqualified large segments of those impacted by the internment. There were 120,313 individuals processed through the War Relocation

44  The genocide occurred from April 7 to July 15, 1994. For background on the genocide see Des Forges (1999) and Cawley and Wolfe (2022). 45  Waldrof (2009) discusses how gender impacts reparations as well. A family who lost a Tutsi mother may not qualify for reparations, whereas a family having lost a Tutsi father might. For a more in-​depth discussion of hierarchies of women victims within Rwanda see Berry (2018). For reparations within Rwanda see Rombouts (2004). 46  United States Civil Liberties Act of 1988 (Pub.L. 100–​383, title I, 10 August 1988, 102 Stat. 904, 50a U.S.C. § 1989b et seq.). 47 For more information see Maki et al (1999) and https://​www.archives.gov/​research/​japanese-​ americans/​redress (Accessed October 15, 2019).

738   Stephanie Wolfe Authority (WRA) Camps, and of those, 82,219 individuals were granted reparations under the CLA.48 A cursory examination of the CLA criteria illustrates multiple ways in which victims can be erased from the recipient list. Regarding criterion 1: An estimated 200 elderly Japanese Americans died each month during the fight for redress and reparation.49 Those who were interned during the war but died before August 10, 1988, were disqualified from receiving reparations, even though their heirs could argue direct financial harm to their parents and indirect harm to themselves for property losses and damages to the families’ economic standings. Regarding criterion 2: Over 2,000 individuals were appropriated from various Latin American countries for the purpose of prisoner exchanges, despite the fact that many of these individuals were not Japanese citizens, but of Japanese heritage.50 Other unclear categories of eligibility included: children of parents excluded from their homes but not interned, children born outside the camp whose mothers received permission to leave under a release program, children whose mothers volunteered to reenter the camp before or after giving birth to be with their interned families, individuals relocated from camps to teach at the naval language schools, and more.51 The question of heirs being able to file claims for deceased parents leads to further contested questions regarding beneficiaries. The question arises: can one make a claim only for oneself, or can an individual make a claim for past generations? If generational claims are allowed, then how far back can a claim be made: parents, grandparents, or even further? An example of this debate is found in another group advocating for reparation for past harm in the United States: African Americans in regard to slavery and segregation. The debate on beneficiaries and reparations was a discussion point in the 2020 U.S. presidential democratic primary, although it dates back much further (Cohen, 2019). One prominent legislative action was a redress and reparation bill—​HR 40—​introduced in the U.S. Congress in 1989 and repeatedly re-​introduced since then. The bill, among other points, would acknowledge the fundamental injustice and inhumanity of slavery and make recommendations to Congress on appropriate remedies to redress the harm inflicted on living African Americans.52 Neither this bill, nor any similar bill, has been successful in the

48  “The

WRA camps consisted primarily of Japanese Americans or Japanese permanent residents; however, some non-​Asian spouses joined their families in the internment camps. Of the 120,313 people under the control of the WRA, there were 1,118 individuals from Hawaii, 1,735 individuals from Immigration and Naturalization Services camps, and 219 voluntary residents (primarily non-​Japanese spouses)” (Wolfe, 2014, p. 187). In addition, for input-​output data see Daniels (1986). 49  This was the estimate by the survivor committee in 1988 (Maki et al., 1999). 50  The Department of Justice (DOJ) processed thousands more in special DOJ camps, including more than 2,264 Japanese Latin Americans, with 1,800 individuals received from Peru. Native Aleuts who were also interned in Alaska for security reasons were processed through the Office of Intergovernmental Affairs (Wolfe, 2014). For more information see Masterson and Funada-​Classen (2004) and Gardiner (1981). 51  See Maki et al. (1999) for further list and details. 52  In the 115th Congress (2017–​2018), Representative John Conyers, Jr. proposed H.R. 40 once again as a proposition to establish a Congressional Research Commission to “study and develop reparation proposals for African-​Americans,” and “to examine slavery and discrimination in the colonies and the United States from 1619 to the present.” For more information, see https://​www.congress.gov/​bill/​115th-​ congress/​house-​bill/​40 (Accessed October 15, 2019).

Reparations and the Role of Apologies    739 U.S. Congress, but since its introduction, dozens of books and articles have been written, in addition to numerous presentations, interviews, and other actions.53 Likewise, there have been repeated discussions about reparations and apologies to Africa for the trans-​Atlantic slave trade and colonization. The demand for redress and reparation for these types of historical injustices was illustrated at the 2001 United Nations’ World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (hereto referred to as the Durban Racism Conference).54 The agenda of the conference included reparations for slavery and colonization. However, the agenda deeply divided the conference, with many governments fearing that an apology for the slave trade would allow for future lawsuits regarding reparation or compensation. The European Union crafted a compromise apology in which it acknowledged “that slavery and the slave trade are a crime against humanity and should have always been so.”55 In exchange for the apology, the African governments agreed to not seek financial reparations for the slave trade (Castle and Smith, 2001).56 The current reparation debates for slavery, segregation, and the trans-​Atlantic slave trade as historical injustices illustrate the question of generational claims. Debates over reparations and apologies have also occurred regarding colonialism and Native Americans,57 First Nations of Canada,58 Australian Aboriginals,59 and colonialism in various African and Caribbean nations.60 Among the rationale for reparations being generational is that “the trauma of shame, fear, and anger has passed from one generation to the next” (Tsosie, 2007, p. 50). In other words, the generational trauma of the atrocity is transmitted, and thus the

53  This is a current debate that remains relevant in American political discussions as evidenced by the 2020 elections and subsequent media attention. Numerous scholars have also spoken on the subject. For example, at a recent IAGS conference, a compelling presentation was given by Jermaine McCalpin on reparations for slavery, “Unfinished Business: Reparations as Justice.” The 14th Biennial Conference of the International Association of Genocide Scholars, Phnom Penh, Cambodia. Delivered July 17, 2019. Also see “Part 6 Slavery,” and “Part 7 Jim Crow” of Brooks (1999, pp. 309–​438). 54  United Nations (2001) Report of the World Conference Against Racism, Radical Discrimination, Xenophobia and Related Intolerance. A/​CONF.189/​12. Available at: https://​www.un.org/​en/​development/​ devagenda/​racism.shtml (Accessed September 25, 2019) (Durban Racism Conference Report). 55  Durban Racism Conference Report, p. 11. 56  Wolfe (2014, p. 78) elaborates, “This carefully issued apology allowed legal issues to be avoided while also meeting the normative expectation of the international community that an apology should be offered.” 57  See Tsosie (2007) and “Part 5 Native Americans” in Brooks (1999, pp. 241–​304). 58 See Woolford (2009). Additionally, for an overview of Canadian Aboriginal history, see the National Centre for Truth and Reconciliation Reports, available at http://​nctr.ca/​reports.php (Accessed October 15, 2019). 59  For coming to terms with the past regarding Australian Aboriginal communities see Thompson (2002, 2007). 60 See generally Howard-​ Hassmann and Lombardo (2008). There have also been discussions of reparations for the slave trade and colonization in the Caribbean. In fact, fifteen Caribbean states are seeking legal action “against their former colonial leaders,” with an emphasis on how colonization has hindered their development. For more information, see Jermaine McCalpin’s interview with NPR, “Reparations May Not Mean What You Think It Means” (2013) National Public Radio, November 12. Available at: https://​www.npr.org/​templates/​story/​story.php?storyId=244767643 (Accessed September 25, 2019).

740   Stephanie Wolfe harm is ongoing.61 This in turn necessitates a transgenerational response and obligations to take responsibility for previous harm. Despite the increasing trend of redress and reparation movements, few reparations have actually been paid to victims of atrocity crimes and even fewer to those of historical injustices (Roht-​Arriaza, 2004). Part of the reparations dilemma, beyond the question of victimization and beneficiaries, is the tension between reparations being provided on an individual versus collective basis. Furthermore, if the reparations claims are on behalf of a group, who then represents the group? Does each individual have to make a claim, or can we apply a broad set of criteria? While this set of questions pulls heavily from previous points in this section, it also suggests additional areas of contention. The process of obtaining reparations is very bureaucratic. These payments tend to arise in one of two ways: through a complaint filed in court or through a specifically designed administrative scheme (examples of each are in the following section). Both mechanisms, however, lend themselves to favoring a small number of easily identifiable individuals with the ability to clearly articulate their claim and provide evidence to back up the said claim (Roht-​Arriaza, 2004). The process of awarding reparations, then, seems to favor individual claims. Even when collective reparations are decided upon—​such as for Holocaust or internment victims—​the processes to apply for the reparations are still on an individual basis. Furthermore, claimants are expected to have a clear identifiable link to the injustice or atrocity with ongoing suffering, which reparations will in some ways redress.62 Finally, reparations programs and court systems often duplicate structural injustices that are reflected within society. First, individuals who are better educated regarding legal matters and/​or those who come from the middle class tend to have better success in obtaining reparations through court cases. This is reflective of how well one understands legal rights and possesses knowledge of the legal system (Roht-​Arriaza, 2004). With regard to reparation programs, understanding the complex and often lengthy paperwork is a challenge to those who are not as well educated. Within the Romani RRM, it was reported that many of the Roma were illiterate due to being barred from educational institutions. The lack of education and literacy meant that filling out the substantial paperwork associated with filing a reparations claim was extremely difficult. Furthermore, discriminatory ideology does not simply disappear. Both Romani and Jewish survivors reported that German doctors and bureaucrats would often be dismissive of reparation claims and held unrealistic expectations of proof.63

61  For a discussion on intergenerational harm and trauma see Chapter 24 by Lidewyde Berckmoes in this volume. 62  Barkan (2007) discusses how one must have an identifiable group to claim reparations. Thus, African Americans can argue ongoing harm from segregation and slavery, however, there are not individuals who can claim ongoing harm from the Normans or Crusaders. 63  For further discussions of structural injustices see Wolfe (2014), Barany (2002), and Pross (1998). Barany (2002) discusses how Romani cultural taboos regarding the dead also impacted the Romani RRM. Similarly, the Peruvian reparations law (discussed in the next section) reflected discriminatory language by excluding victims who had been members of subversive organizations. See Correa (2013) for more details.

Reparations and the Role of Apologies    741

4.2. Quantifying reparation, restitution, and compensation Once it has been established to whom reparations are owed, another set of debates emerges. How does one quantify loss; that is, once the state or court decides to offer reparations, how is the amount determined? As previously stated, reparations tend to be awarded via two mechanisms: complaints filed through a court64 or through specifically designed administrative schemes. Barkan (2007) discusses the challenges of quantification in regard to individual and group reparations. He argues that the nature of human interaction means that we find it easier to quantify tangible material losses. Thus, most reparation payments are for material losses, whereas compensation for lost education opportunities, political oppression, and community breakup are generally disregarded. Individuals have filed lawsuits, or availed themselves of reparation measures built into a variety of courts. While not all courts are receptive when it comes to granting reparations, courts can help spur national legislation, or indicate changing perceptions. For example, when Roma were excluded from receiving reparations in Germany, individuals would file lawsuits in the West German courts. It would not be until 1963 that the courts recognized that Romani might have been persecuted on racial grounds and not until 1979 that the German Parliament enacted legislation which recognized that the Romani persecution had been racially motivated (thus making the reparations claims stronger) (Wolfe, 2014). Overall, domestic courts do not have a strong record of granting reparations, regardless if they are filed on an individual or a collective basis. The issuing of reparations has occurred more within the regional court systems than the national court systems. The Inter-​American and European human rights courts have decided over 100 cases, each involving reparations, and they share the starting point that “fair and adequate compensation” should entail the “restoration of the status quo ante” (de Greiff, 2007, p. 158). In situations where full compensation is not possible (such as a death), then reparations should cover material and moral damages.65 Within the Inter-​American Court, reparations tend to be for individual claimants (i.e., the injured party), or to the victims’ relatives. Although one court case, Aloeboetoe et al., did recognize that moral damages were done to a tribal group, it found that the obligation to moral compensation did not extend to communities (Rescia, 1999). Additional problems in the quantification and implementation of reparation programs can be illustrated by the Peruvian case. In 2001, Peru’s interim government established a Truth and Reconciliation Commission to investigate internal armed conflict between 1980 and 2000.66 The Truth Commission designed a reparation program that had one of the most inclusive definitions of victims and beneficiaries to date, with special consideration given

64  Rescia

(1999) points out that even the court system utilizes “reparations” and “compensation” interchangeably. 65 This includes: “physical or mental damages, psychological or physical pain or suffering, opportunity cost; loss of wages and the capacity to earn a living; reasonable medical and other expenses in rehabilitation, damages to goods and trade; including loss earnings; damages to reputation or dignity and reasonable expert fees” (Rescia, 1999, p. 594). 66  The conflict was among guerrilla groups, armed peasant patrols, and the Peruvian armed forces (Laplante and Theidon, 2007). During this time approximately 69,280 people died or disappeared. The decades were characterized by torture, illegal detention, sexual violence, etcetera. See Correa (2013).

742   Stephanie Wolfe for culture and gender.67 Despite the creation of an inclusive and expansive reparations program, implementation and funding has been problematic. Peru initially promised a program of social development instead of reparations. After outrage from victims, Congress approved a reparations law in 2005, but it refused to allocate funding until 2011. The long delay in the funding for reparations, in contrast to large funding for military spending and other political projects, made many survivors unhappy and distrustful of the state’s sincerity. Eventually, the 2011 reparations legislation would provide a lump sum of 10,000 soles (USD 3,700) per victim (Correa, 2013; Laplante and Theidon, 2007). Whereas Peru and the United States (internments) provided a lump sum payment to survivors, other reparation programs, such as those in Germany, and various other courts have relied on calculating exact sums.68 There are, however, significant problems with formulaic calculations. First, while this works well for a small number of awardees, it does not work well when trying to issue reparations to large numbers of victims. Since these types of reparations are typically awarded by courts, the result is that a small group of victims receive large payments while others receive nothing (de Greiff, 2007). Second, it is not feasible to utilize financial calculations for many widespread atrocities. Utilizing Peru as an example, de Greiff (2007) argues that by the Inter-​American Court calculation, reparations to the 40,000 claimants would have cost 6 billion USD. Considering Peru’s total yearly budget is 9 billion USD, this type of calculation would not be feasible. One can thus extrapolate that full reparation, restitution, or compensation in many countries is simply not possible from both an economic and a political standpoint (de Greiff, 2007). The bureaucratic nature of quantifying loss can also be revictimizing to survivors. Pross (1998) recalls one survivor who applied for restitution in Germany for the loss of his academic library. The individual was told that he needed to submit the titles of all 900 books, including the year of purchase, purchase price, and receipts. Likewise, the United States created the 1948 Japanese American Evacuation Claims Act to provide compensation for losses during the war. But the requirements of substantive documentation such as receipts for each item claimed was problematic when many individuals were given extremely short times to report to camp. Many individuals lost everything they owned, and those who did find storage for items might not have retained receipts, or could not find receipts years later.69 Reparations have frequently been the result of successful court cases, as few governments have had institutionalized administrative schemes to pay reparations. Those that have reparation programs are more well-​off countries, or countries where there is a limited and easily identifiable set of victims (Roht-​Arriaza, 2004). The German reparations programs are often seen as a model, yet the administrative and bureaucratic nature of the process left many applicants feeling retraumatized and with a sense of injustice. Likewise, when the

67  For more on gender and reparations see Rubio-​Marίn (2006), Rubio-​Marίn (2009) and Benson (2007). 68  de Greiff (2007, p. 158) outlines the procedural calculation that the InterAmerican Court utilizes as: “projecting the victim’s actual income, multiplying it by whatever was left of his or her professional life (based on national professional and life expectancy averages) and subtracting twenty-​five per cent of this amount (assuming that this was the portion of income that the victim would have consumed for personal use and therefore not available to relatives).” 69  See Commission on Wartime Relocation and Internment of Civilians (1997).

Reparations and the Role of Apologies    743 United States and Peru offered reparations to survivors of internment and armed conflict, respectively, the numerous exclusions from the program, and the delay in funding, left a sense of injustice to those previously victimized. Hierarchies in compensation and victimization can also leave survivors with a sense of injustice. Ultimately, reparations programs are political decisions and thus highly contextual and dependent on political and social conditions (Garcia-​Godos, 2017). Alternatively, court cases set important legal precedents, yet impact a small number of individuals. Despite these negative connotations, the perception of reparations among survivors, practitioners, and scholars is that these programs are morally and politically necessary and contribute to both reconciliation and psychological healing.

5.  The Role of Apologies For reparations to be seen as fair and comprehensive—​and as a true form of reparation politics and transitional justice—​they need to be linked to apologies, and more specifically an apologetic stance. In The Politics of Reparations and Apologies (Wolfe, 2014), I outline four approaches that states can take when faced with past atrocities: denial, acknowledgement, statements of regret, or an apologetic stance. An apologetic stance is more than a simple apology; it involves the transmission of history that clearly states the wrongdoing. With an apologetic stance, the background and facts regarding the atrocity should be acknowledged and known throughout society. This transmission of knowledge can include, but is not limited to, accurate and in-​depth educational textbooks, open and accessible archives, truth commissions, court cases, official reports, publications, and so forth. Of key importance is that the information is accurate and as complete as possible, in addition to being widely disseminated to the public and accepted as truth.

5.1. The apology Apologies speak to acts “that cannot be undone but that cannot go unnoticed without compromising the current and future relationship of the parties, the legitimacy of the violated rule, and the wider social web in which the participants are enmeshed” (Tavuchis, 1991, p. 13). More so, political apologies are those which directly involve the state, particularly those that are given by and sanctioned by the government. Apologies which involve the state and reparation programs70 are political decisions. These apologies are considered to be public acts and, as will be discussed, can be extremely contentious (Negash, 2006). In 70 

Reparation programs and apologies are political, whereas court proceedings seek to provide legal remedy. It is important to note, however, that states have ignored regional and international court decisions in the past. For discussions on a lack of mechanism to enforce reparation decisions and an analysis of reparations, which include cases where the courts ordered reparation, yet the state did not follow through with an award, see REDRESS (2013) “Reaching for Justice: The Right to Reparation in the African Human Rights System.” Available at https://​redress.org/​publication/​reaching-​for-​justice-​the-​ right-​to-​reparation-​in-​the-​african-​human-​rights-​system/​. (Accessed September 24, 2019).

744   Stephanie Wolfe regard to reparation politics, the apology affirms that the state’s actions were wrong and/​or illegal. Such apology thus frees those who were victimized from the burden of self-​blame and provides psychological relief to victims. With the offering of remorse and acknowledgment of the wrong, the event is assumed to be less likely to occur again.71 In many ways, an apology rewrites the past, reshapes public memory, and oftentimes acknowledges current inequities and injustices (Tsosie, 2007).72 Within international society, there has been an emergent trend for states to apologize for atrocity crimes and historical injustices. The online political apologies archive73 lists 714 apologies from around the world. Of those, 28 were issued between the years 1044 and 1945. A further 75 apologies occurred between the end of World War II and the end of the Cold War (1945–​1991). The majority of political apologies—​611—​were offered between 1992 and 2019, after reparation politics became more prevalent. Even factoring in that some of the earliest apologies may have been lost to the ravages of time, this sharp increase in apologies is significant and indicative of a norm cascade. One of the major barriers to state apologies is the fear that once the state apologizes for an atrocity or injustice, it will be liable for reparations (Negash, 2006). As previously discussed, the apology crafted by the European Union during the Durban Racism Conference was created with the provision that the African governments would not seek financial reparations for the trans-​Atlantic slave trade. Other challenges regarding political apologies are related to an apology being judged as poorly conceived, insincere, or ineffective (Carranza et al, 2015). The relationship between an apology and reparations can often be vital to how an apology is seen by the victimized group.

5.2. Interlinking of reparations and apologies Pablo de Greiff (2007, pp. 160–​161) has stated: One of the main aims of transitional justice is to return (or, in some cases to establish anew) the status of citizens to individuals. To the extent that a reparations program aims to contribute to the achievement of justice, and that recognition is both a condition and a consequence of justice, this links reparations and recognition.

This linkage of reparations and recognition is key to the understanding of the role of apology. Recognition is the first stage of an apology. It acknowledges what happened to the individual 71 

The importance of acknowledging the wrong can be seen in the reaction of victims after hearing court verdicts. Irons (1983) discusses Japanese American individuals who cried upon hearing the verdict that internment during World War II was wrong. Pross (1998) discusses that the “not guilty” verdicts given to concentration camp guards after the Holocaust had a negative psychological impact on survivors. Also see Govier (2006). 72  Scholars have also analyzed how states can ignore the past and refuse to adequately acknowledge historical events and atrocities. Comparative work on memory and atrocity can be found in Buruma (1994), Hein and Selden (2000), and Herf (1997). 73  This database is housed by the Institute for the Study of Human Rights at Columbia University. It is a “working list of major apologies and related events.” It was compiled and researched by Dr. Graham Dodd, however, individuals can also email the project with additions. Available at: http://​ www.humanrightscolumbia.org/​ahda/​political-​apologies as of July 6, 2019. (Accessed July 6, 2019.)

Reparations and the Role of Apologies    745 and to the victimized community. Events need to be recognized before further elements of reparation politics and transitional justice can be developed.74 Furthermore, mere truth-​telling can be seen by the victimized population as empty gestures or cheap talk. The converse is also seen as true: reparations in the absence of truth-​telling are generally perceived by those victimized as an attempt by the state to silence the victims, turning any related benefits received into blood money (as discussed later in this section). When reparations and apologies are paired successfully, one sees an apologetic stance. Yael Danieli (2007) argues that the offering of reparations and apologies can have a psychological benefit for a victimized population. In a discussion on the Japanese American reparations movement, she argues that it was not the reparations money that mattered ($20,000), but what the money signified to the population. The money served to make the apology more real: it was the confirmation that the state was responsible for the wrongdoing, that the Japanese American population had not been guilty of what they were (as a group) accused of, and that the government was saying not only that they were sorry, but provided a symbolic amount of money to assure the victims that the state had been in the wrong. Although $20,000 per victim was a token amount compared to the estimates of what had been lost by the community, it signified an acceptance of responsibility that a letter of apology, by itself, would not have (Danieli, 2007). The challenges that have faced reparations and apologies can be seen with the creation of the first reparations programs, that is, the German reparations program to Israel. The reparations treaty was contentious in both countries. Within West Germany, the idea of paying monetary reparations did not initially have widespread support; Chancellor Adenauer was key to creating political will and convincing those within the German government to support the negotiations. Likewise, within Israel one found opposition to the reparation negotiations among the general population; there were reports of violent demonstrations, including the stoning of parliament.75 Many individuals perceived the idea of reparations to Israel as blood money and the idea of accepting these funds was deeply offensive. Negotiations continued, however, as a formal Note passed between the governments pointed out—​the German government had been enriched by the loss of Jewish lives.76 The idea that reparations without apologies is blood money is repeated in later reparation movements as well. The Japanese comfort women redress and reparation movement77

74  See Japan and Turkey as examples where recognition is denied. Reparations, criminal trials, truth commissions, memorials, and so forth begin with the premise that said event occurred. 75  For discussions on the negotiations and the politics surrounding these discussions see Sagi (1986) and Negash (2006). 76  Properties, bank accounts, artwork, jewelry, and other material possessions had been seized from Jewish citizens and thus there were real, substantial losses. For individuals without heirs, the state is normally the beneficiary; however, since the beneficiary was also the entity responsible for the murder, it was unjust. Many organizations, allies, and individuals worked to mitigate this injustice and create restitution and reparation programs. See Sagi (1986) and Wolfe (2014). 77  During the Asia Pacific War (1931–​ 1945), the Japanese Imperial Army kidnapped and enslaved approximately 200,000 women, primarily from Korea, but also from China, Malaysia, Burma, Taiwan, the Philippines, East Timor, and the Dutch East Indies. See Parker and Chew (1994), Yoshimi (1995), Soh (2008), Tanaka (2002), and War Victimization and Japan (1993) International Public Hearing Report, The Executive Committee. Nishitenma, Osaka-​shi Japan: Toho Shuppan, Inc.

746   Stephanie Wolfe is demonstrative of this. The victimized women generally felt that they had not received an apology. There have been multiple instances where Japanese officials said “sorry,” but these so-​called apologies were generally followed up a short time later by another politician negating the statement, and in some instances, further insulting the women victimized (Wolfe, 2014). Thus, when the Asian Women’s Fund offered “reparations” from monies donated by private individuals (not the state) in addition to a statement of regret, only six survivors accepted the payment (Satz, 2007). I have argued that by providing private compensation donated by individuals, the state failed to grapple with the issue of legal responsibility for the atrocity. The survivors and associated allies perceive this money to be sympathy or welfare money and not true reparations. This perception can be seen with the statement of the Korean Council (an allied NGO): “the Japanese government announced the name of the sponsors for the private fund of “Asian Women’s Fund” to avoid its legal responsibility in compensating the survivors” (in Wolfe, 2014, p. 264). Survivors have maintained that they must have direct payment from the Japanese government in addition to formal, official apologies. As one Dutch survivor stated: This Fund was an insult to the “Comfort Women.” . . . [We] refused to accept it. This fund was a private fund; the money came from private enterprise, and not from the government. Japan must come to terms with its history, and acknowledge their war time atrocities.78

The Japanese comfort women RRM is a clear example of why talk can be considered cheap. Officials within the government routinely offer apologies; however, these are reduced to meaningless words when the next official blames the victims for any crimes committed toward them. The apology and aftermath negates the victimization completely. The United Nations and multiple governments have also detailed that these apologies are not sufficient, thus reinforcing the idea that there must be something concrete with an apology to truly count as reparatory (Wolfe, 2014).

6.  Conclusion Reparations and apologies must be intertwined to truly have the impact that both the state and the victimized community wishes. To meet the goals of reparations—​to re-​ integrate victims into the social and political community, to foster reconciliation, to take responsibility, and to come to terms with the past—​the state must offer both reparations and apologies. An apologetic stance will include both a sincere acknowledgement of the atrocity and recognition of the impact the atrocity had on the victimized community. It will transmit that knowledge to the general population via educational textbooks, memorials, or other mechanisms which mark the crimes and acknowledge the wrongs. Reparations are a common and accepted framework in which a state can prove its sincerity to the victimized

78  U.S. House Committee on Foreign Affairs (2007) “Statement of Jan Ruff O’Herne AO Friends of ‘Comfort Women’ ” in Australia: Hearing on Protecting the Human Rights of “Comfort Women,” 110th Congress.

Reparations and the Role of Apologies    747 community and have become a key component of transitional justice and reparation politics. Together, apologies and reparations work in tandem to create an apologetic stance, a clear indication that the state is sorry for the atrocities it has committed. Reparations and apologies have both political and social implications. They are negotiated between those who committed the wrong (i.e., the state) and those who were victimized (or descended thereof). Associated allies, both domestic and international, can be highly influential. Survivor consultation, however, is essential for reparations and apologies to be seen as sincere and accepted by those who were victimized. Reparations and apologies as a voluntary79 accounting of the past and the state’s willingness to recognize the atrocity give the victim narratives a powerful form of legitimacy (Barkan, 2007). Reparations and apologies re-​integrate previously marginalized populations back into society, not only from an economic standpoint, but morally and politically as well. There are several trends we can conclude from the chapter. The type of atrocity one experienced does not seem to influence the likelihood of reparations being offered. Reparations have been given for a broad range of crimes, including genocide, crimes against humanity, war crimes, and severe human rights abuses. In addition, reparations have been awarded by a wide range of local, regional, and international courts, or independently established by the state. Likewise, apologies have been issued by states, government officials, non-​governmental organizations, corporations, and numerous leaders around the world. The crimes that individuals were apologizing for, or compensated for, were committed in Europe, the Americas, Africa and the Asian Pacific. Thus, we see that the type of atrocity or injustice that deserves reparation has been broadly conceived, and the locality of the events dispersed. There are, in part, structural factors that seem to influence whether reparations will be considered. Atrocities which have a clear, easily identified, small number of victims are more likely to be awarded reparations. Victims who have clear quantifiable harm, such as material losses, are also more likely to receive reparations. This seems to be true for both states establishing a reparations scheme and for reparations ordered via the courts. In addition, reparations are more likely to be offered by a liberal democracy or states that are transitioning to a democracy. Victims who have the ability to organize and lobby a democratic government, who have political allies, or those who understand the intricacies of the legal system are also more likely to achieve the goals associated with redress and reparation movements.80 The existing literature on reparations and apologies has weaknesses. Since reparation politics only emerged after World War II and then went dormant as states gave primacy to Cold War politics, there have not been long-​term studies on the impact of reparations. More empirical data and research is needed to be truly able to assess these programs.81 In addition, the initial research on reparations and apologies was primarily case based and limited to

79 To actually offer reparations is voluntary. States have ignored court orders, truth commission findings, UN reports, and other orders/​suggestions of reparations. As a sovereign entity, a state does not have to engage in reparation politics if it does not choose to. See Turkey and Japan as cases where reparations and apologies should be offered, and are ignored by the state. 80  See generally von Wahl (2009) and Wolfe (2014). 81  See Immler (2018), Olsen et al. (2010), and Slyomovics (2014).

748   Stephanie Wolfe single case studies. Thus, research on overall international trends and theories surrounding reparations and apologies is limited. Analysis of new programs, new approaches, and overall trends would benefit this emergent field. One area of future analysis can be reparations within the International Criminal Court (ICC), in addition to other international and hybrid courts.82 Article 75 of the Rome Statute establishes the basic framework of the Court via two separate institutions. The Court can order reparations after it has issued a conviction against the accused person, which are implemented by the Trust Fund for Victims (TFV), and the TFV can initiate assistance programs, irrespective of the outcome of a case, in situations the Court is dealing with. There are currently (July 2021) three cases in a reparations phase: Lubanga, Katanga, and Al Mahdi. The first Court order of reparations was in the Lubanga case; however, it took five years (until April 2017) for the TFV implementation plan to be approved by the Court (Balta et al., 2019). The Katanga and Al Mahdi reparations orders were upheld by the ICC appeals judges in March 2018.83 In addition, the Al Mahdi case is the first time a court has ordered reparations for crimes against cultural heritage. With the International Criminal Court reparations cases being fairly new, the question of cultural heritage and community reparations, the ongoing movements for slavery and colonialism, and a need for more empirical research on the impact of reparations and apologies, the questions surrounding coming to terms with the past are going to continue to be increasingly complex. Furthermore, the debates outlined in this chapter have no easy answers. The atrocity crimes and historical injustices of the past, however, should be dealt with. Reparations and apologies are an important avenue to do so. The alternative—​to forget the past—​simply means we will be condemned to repeat it.

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752   Stephanie Wolfe Parker, K., and Chew, J.F. (1994) “Compensation for Japan’s World II War-​Rape Victims.” Hastings International and Comparative Law Review 17(1), pp. 498–​549. Posner, E.A., and Vermeule, A. (2003) “Reparations for Slavery and Other Historical Injustices.” Columbia Law Review 103, pp. 689–​748. Pross, C. (1998) Paying for the Past: The Struggle over Reparations for Surviving Victims of the Nazi Terror. Translated by Cooper, B. Baltimore, MD: Johns Hopkins University Press. Rabinbach, A. (1997) In the Shadow of Catastrophe: German Intellectuals between Apocalypse and Enlightenment. Berkeley: University of California Press. Rescia, V.R. (1999) “Reparations in the Inter American System for the Protection of Human Rights.” ILSA Journal of International and Comparative Law 5(3), pp. 583–​601. Roht-​Arriaza, N. (2004) “Reparations in the Aftermath of Repression and Mass Violence.” In: Stover, E., and Weinstein, H.M. (eds.) My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge: Cambridge University Press, pp. 121–​139. Rombouts, H. (2004) Victim Organisations and the Politics of Reparation: A Case Study on Rwanda. Antwerp: Intersentia. Rombouts, H., and Vandeginste, S. (2005) “Reparation for Victims in Rwanda: Caught Between Theory and Practice.” In: de Feyter, K., Parmentier, S., Bossuyt, M., and Lemmens, P. (eds.) Out of the Ashes: Reparation for Victims of Gross Systematic Human Rights Violations. Antwerp: Intersentia, pp. 309–​341. Rubio-​Marίn, R. (ed.) (2006) What Happened to the Women?: Gender and Reparations for Human Rights Violations. New York: Social Science Research Council. Rubio-​Marίn, R. (ed.) (2009) The Gender of Reparations: Unsettling Sexual Hierarchies While Redressing Human Rights Violations. Cambridge: Cambridge University Press. Sagi, N. (1986) German Reparations: A History of the Negotiations. New York: St. Martin’s Press. Satz, D. (2007) “Countering the Wrongs of the Past: The Role of Compensation.” In: Miller, J., and Kumar, R. (eds.) Reparations: Interdisciplinary Inquiries. Oxford: Oxford University Press, pp. 176–​192. Schaap, A. (2005) Political Reconciliation. New York: Routledge. Shelton, D. (2005) “The United Nations Principles and Guidelines on Reparations: Context and Contents.” In: De Feyter, K., Parmentier, S., Bossuyt, M., and Lemmens, P. (eds.) Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations. Oxford: Intersentia, pp. 11–​33. Sikkink, K. (2011). The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: Norton. Slyomovics, S. (2014) How to Accept German Reparations. Philadelphia: University of Pennsylvania Press. Soh, C.S. (2008) The Comfort Women: Sexual Violence and Postcolonial Memory in Korea and Japan. Chicago: University of Chicago Press. Son, E.W. (2018) Embodied Reckonings: “Comfort Women,” Performance, and Transpacific Redress. Ann Arbor: University of Michigan Press. Tanaka, Y. (2002) Japan’s Comfort Women: Sexual Slavery and Prostitution during World War II and the US Occupation. New York: Routledge. Tavuchis, N. (1991) Mea Culpa: A Sociology of Apology and Reconciliation. Stanford, CA: Stanford University Press. Teitel, R.G. (2000) Transitional Justice. Oxford: Oxford University Press. Theriault, H.C. (2012) “From Unfair to Shared Burden: The Armenian Genocide’s Outstanding Damage and the Complexities of Repair.” Armenian Review 53(1–​4), pp. 121–​161.

Reparations and the Role of Apologies    753 Theriault, H.C., de Zayas, A., McCalpin, J.O., and Papian, A. (2015) Resolution with Justice: Reparations for the Armenian Genocide. Available at: http://​ www.armeniangenocidereparations.info/​(Accessed September 5, 2019). Thompson, J. (2002) Taking Responsibility for the Past: Reparation and Historical Justice. Cambridge: Polity Press. Thompson, J. (2007) “Coming to Terms with the Past in Australia.” In: Miller, J., and Kumar, R. (eds.) Reparations: Interdisciplinary Inquiries. Oxford: Oxford University Press, pp. 69–​84. Timm, A. (1997) Jewish Claims against East Germany: Moral Obligations and Pragmatic Policy. Budapest: Central European University Press. Torpey, J. (2006) Making Whole What Has Been Smashed: On Reparation Politics. Cambridge, MA: Harvard University Press. Tsosie, R. (2007) “Acknowledging the Past to Heal the Future: The Role of Reparations for Native Nations.” In: Miller, J., and Kumar, R. (eds.) Reparations: Interdisciplinary Inquiries. Oxford: Oxford University Press, pp. 43–​66. Vermeersch, P. (2007). The Romani Movement: Minority Politics & Ethnic Mobilization in Contemporary Central Europe. New York: Berghahn. Von dem Knesebeck, J. (2011) The Roma Struggle for Compensation in Post-​War Germany. Hertfordshire: University of Hertfordshire Press. Von Wahl, A. (2009) “The Politics of Reparations: Why, When, and How Democratic Governments Get Involved.” In: Berg, M., and Schaefer, B. (eds.) Historical Justice in International Perspective: How Societies Are Trying to Right the Wrongs of the Past. Cambridge: Cambridge University Press, pp. 39–​65. Waldorf, L. (2009) “Goats & Graves: Reparations in Rwanda’s Community Courts.” In: Ferstman, C., Goetz, M., and Stephens, A. (eds.) Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making. Boston: Nijhoff Publishers, pp. 515–​539. Walker, M.U. (2010) What Is Reparative Justice? Milwaukee, WI: Marquette University Press. White, E.N. (2001) “Making the French Pay: The Costs and Consequences of the Napoleonic Reparations.” European Review of Economic History 5(3), pp. 337–​365. Wemmers, J.M. (ed.) (2014) Reparation for Victims of Crimes against Humanity: The Healing Role of Reparation. New York: Routledge. Wolfe, S. (2014) The Politics of Reparations and Apologies. New York: Springer. Woolford, A. (2009) “Ontological Destruction: Genocide and Canadian Aboriginal Peoples.” Genocide Studies and Prevention: An International Journal (IAGS) 4(1), pp. 81–​97. Yamazaki, J. (2006) Japanese Apologies for World War II: A Rhetorical Study. New York: Routledge. Yoshimi, Y. (1995) Comfort Women: Sexual Slavery in the Japanese Military during World War II. Translated by O’Brien, S. New York: Columbia University Press. Zweig. R.W. (2001). German Reparations and the Jewish World: A History of the Claims Conference. 2nd edition. London: Frank Cass.

CHAPTER 31

Memory a nd Memorializ ati on a ft e r Atro ci t i e s Nicole Fox 1.  Introduction In 1994 Berlin officials announced a design competition for a memorial that would commemorate the Jews of Europe murdered during the Holocaust. After years of deliberations, a second competition, and many rounds of fundraising, construction for the newly selected Holocaust memorial finally began in the year 2000. Five years later, it was complete. Enormous steel structures resembling coffins now dominate a bustling area of downtown Berlin, garnering widespread praise and criticism. Some praised that, aside from the title of the memorial—​The Memorial to the Murdered Jews of Europe—​the “strength of the field of pillars is that it doesn’t have a single given message, but rather is open to interpretation from everyone,”1 while others describe it as being overly “gigantic and abstract,” particularly because the memorial does not provide passersby signage to assist in interpresting its meaning (Åhr, 2008, p. 283). Furthermore, the monument was criticized for commemorating only the Jewish victims of the Holocaust, ignoring the victimization of Poles and other Slavic peoples, gays and lesbians, Romas, the mentally and physically disabled, political opponents, and Jehovah’s Witnesses, among others. Critics note that one of the companies that supported the memorial project had been involved in the Nazi execution of Jews.2 The Berlin memorial highlights many of the complicated dynamics involved in memory projects: how to delineate the physical contours of the commemorative space; who are and are not included as victims of the atrocity; how to foster collaboration between the many different stakeholders in the project; and how to respectfully respond to public dialogue and 1 

Deutsche Welle (2006) “Creators Praise Popularity of Berlin Holocaust Monument.” Available at: https://​ www.dw.com/​en/​creators-​praise-​popularity-​of-​berlin-​holocaust-​monument/​a-​1997757 (Accessed: October 1, 2019). 2  “Europe: Spray-​ on problems; Berlin’s holocaust memorial.” (2003). The Economist, November 1, pp. 45-​47.

756   Nicole Fox controversies. This chapter touches upon some of these questions and proceeds in four parts. I begin by defining memorialization, memorials, and commemoration, then explore why memorials have become a viable option for communities, nations, and individuals in the aftermath of atrocity. Next, I examine the three historical movements central to the emergence of contemporary memorial culture. Finally, I analyze the challenges of memorials as a mechanism for reparations and justice, concluding with a call for future research and arguing that memorialization in the aftermath of atrocity offers promising possibilities for nations, communities, and individuals.

2.  Defining Memorialization, Memorials, and Commemoration Memorialization is the process by which groups of people remember or honor lives lost in a tragic event within a specific physical space (memorials). Memorialization is thus a social process, one in which symbols, rituals, and narratives are developed, curated, and cultivated in order to keep an event or people mourned alive in public memory. A central aspect of memorialization is ensuring that the “presence of the dead can still be felt at the scene of their death” (Veil et al., 2011../​../​Downloads/​Memorializing -​CBML_​BIB_​ch31_​ 0065, p. 167). Memorialization is a return to the grief that is experienced after loss, but with the intention to heal. Often memorialization occurs in close physical proximity to where the death took place, or a site that has symbolic meaning emphasizing that loss of life due to tragedy is an event commending remembrance. Memorials are the public spaces in which memorialization processes occur. They are “places where memories converge, condense, conflict and define relationships between past, present and future” (Marschall, 2006, p. 146). Memorials are important as both physical space (where people come to remember, grieve, reflect) and symbolic space (demonstrating the merit of public grief, acknowledgement, and/​or tragedy). Memorials mark what should be remembered and attempt to offer pathways to healing which can include forgiveness and/​or reconciliation. Such spaces and their artifacts can be thought of as “renewal discourse” in which people can reconstruct themselves and their lives in a way that allows them to move through a crisis or traumatic event (Seeger and Ulmer, 2002 p. 127). The renewal process is one that shifts the “landscape of carnage and death” into a space of “sacred ground” (Jacobs, 2004, p. 312). Former sites of killing and terror can be transformed into places that ease grief and bring healing (Jacobs, 2004; Veil et al., 2011). Memorials to injustice and atrocity can occur on multiple levels: international, national, regional, or local. They can range from polished memorial museums to a plaque at a former massacre site. The process of memorialization often matters as much as the outcome: Memorials in post-​conflict societies are all about process—​what should the memorial be about, what groups are involved in the memorial’s impetus and design, who builds it, who funds it, who controls the outcome, what dialogues does a memorial trigger, who responds to the memorial once established, and to what degree, and how lasting or fleeting in time does the memorial prove to be? (Hite and Collins, 2009, p. 383)

Memory and Memorialization after Atrocities    757 Mobilization efforts to memorialize can be spurred by international or state actors or through grassroots activism. Some memorials have emerged out of a more ground-​up process. For example, in Uganda survivors of political violence believed that the government was not committed to memorialization efforts, opening up the space for the memorialization mobilization to arise from grassroots campaigns (Fox and De Ycaza, 2013). Resentment of the government’s hands-​off approach to memorializing human rights abuses was enhanced by the fact that only members of the Lord’s Resistance Army faced indictments from the International Criminal Court (ICC), but not other actors, such as government forces (Fox and De Ycaza, 2013; Schabas, 2010). This symbolized the government’s lack of investment in human rights more generally, as they would not agree to be transparent in an investigation by the ICC or memorialize past human rights abuses. While Ugandans struggled to demand more accountability and memorialization, 3,000 miles southwest of Uganda, in Namibia, construction of the new Independence Museum was seen by genocide reparation activists as an opportunity to demand that the state commemorate and publicly acknowledge past human rights violations in Namibia. This felt like a win for descendants of those who survived genocidal violence in Namibia (Zuern, 2012; Hamrick and Duschinski, 2018). Commemorations, while often connected to memorials, can be defined as public mourning events that take shape around an anniversary or particular remembrance ritual. Commemorative events aim to remember a specific historical event or person. Major commemorative events are televised and/​or transcribed, preserving their memory and narrative through archival transcripts or mass media. Commemorations can “prescribe monolithic readings by implicitly referring to a tradition of related commemorations of the past, which serve either to revise or consolidate a popular myth in the present, or to reinterpret a past event within a new historical context” (Carrier, 1996, p. 436). Commemorating a difficult and often controversial past involves negotiation with various stakeholders such as community organizers, victims of past abuses, policymakers, and political officials. In my own research on Rwanda, memorial staff struggle to balance the view of survivors who would like commemorations to center on vivid testimony and the view of counseling staff who feel like such testimony can cause additional trauma that is unmanageable with present-​day mental health resources (Fox, 2021). While memorials and commemorations may indeed cause survivors to relive trauma, many survivors find that the benefits of such spaces and rituals far outweigh the costs.

3.  The Functions of Memorials for Individuals and States For us, forgetting was never an option. . . . Remembering is a noble and necessary act. The call of memory, the call to memory, reaches us from the very dawn of history. . . . Indeed, if memory helps us to survive, forgetting allows us to go on living. . . . How are we to reconcile our supreme duty towards memory with the need to forget that is essential to life? No generation has had to confront this paradox with such urgency. The survivors wanted to communicate everything to the

758   Nicole Fox living: the victim’s solitude and sorrow, the tears of mothers driven to madness, the prayers of the doomed beneath a fiery sky. —​Elie Wiesel, 1986 Nobel Peace Prize speech

3.1. Memorialization for individuals Atrocity crimes tear apart the social fabric of society. Holocaust survivor Elie Wiesel, during his Nobel Peace Prize lecture, describes the paradox of memory: How do we balance the need to remember—​a duty of the living, a duty of those who survive—​with the need to forget aspects of the brutality enough to survive daily life post-​atrocity? Memorials to past atrocities have materialized as one viable, although imperfect, solution to this question. In my own work with Rwandan Genocide survivors, they consistently emphasize their own duty to remember, to bear witness to what happened, to what once was (Fox, 2021). Survivors with whom I spoke stress that memorials bring them hope; however, memorials also force them to remember. Yet, memorialization provides peace of knowing that their family and history will not be forgotten. This is a type of stability that facilitates daily survival and functioning in society in the aftermath of great loss. For if remembrance loses, atrocity wins. As Michael Ignatieff (1998, p. 177) poignantly explains: If ethnic cleansing is successful, it removes victims and leaves the victor in possession of a terrain of undisputed truth. Who, after all, is left to remind the winners that someone else once owned these houses, worshipped here, buried their dead in this ground? Ethnic cleansing eradicates the accusing truth of the past. In its wake, the past may be rewritten so that no record of the victim’s presence is allowed to remain.

Survivors with whom I spoke were terrified that their experience and their former community would disappear from the minds of the living—​that no one would remember what life was like before genocidal violence. Memorials can counter disappearance and the denial of the victim’s experience. In 2008, a survey of victims of political violence reported that memorialization was prioritized as the second most valuable form of state reparations, following monetary compensation (Brett et al., 2008, p. 2). The value of memorialization for victims is one of the central reasons that scholars, advocates, and practitioners of transitional justice have advocated for the creation of historical memory sites, memorials, and commemoration rituals as a mechanism of transitional justice. Transitional justice refers to “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes” (Teitel, 2003, p. 69). According to De Brito et al. (2001, p.1), “[l]‌egacies of repression have been dealt with in transitional periods through amnesties, trials or purges, through the establishment of truth commissions, by financial compensation, and with symbolic gestures such as the building of monuments or the proclamation of commemorative days of ‘remembering’.” Memorialization has become an important part of transitional justice throughout the world (Barsalou and Baxter, 2007; Megret, 2010).

Memory and Memorialization after Atrocities    759

3.2. Memorialization for communities and nations Memorials perform a range of other purposes for communities and nations. First, they can bring much-​needed hope and healing to survivors of atrocity by functioning in similar ways to reparations and/​or a public apology by the state.3 They can be conceptualized as a space of acknowledgment to survivors who have lost families, childhoods, dignity, community, and more. Second, memorials can also operate in complementary ways with trials and other forms of transitional justice. Third, public and political elites can utilize memory projects as a tool for nationalism, power, and control, depending on the memorialization process (Fox, forthcoming). Finally, memorialization can shed light on marginalized violent historical events.

3.2.1  Acknowledgement Memorials can function as a form of reparation or public apology to the victims such as in the case of Colombia. Colombia’s National Museum of Memory in downtown Bogota was created by the Victims’ and Land Restitution Law in 2011.4 The museum intends . . . to contribute to the comprehensive reparation and to the right to the truth for the victims of the Colombian armed conflict as well as society in general. The Center [Colombia’s National Museum] accomplishes this by reconstructing, through the testimony of victims, the serious human rights violations that occurred in the framework of the conflict, searching for truth, justice, reparation and the construction of a sustainable and lasting peace.5

By gathering testimony from survivors, their descendants, historians, activists, and scholars, memorials can often illuminate the context in which atrocity crimes occurred. Within this process of fact-​finding and truth-​telling, memorialization often involves naming the social actors, or groups of actors, whose passive and active roles facilitated violence. Naming both the crimes and the perpetrators can be cathartic for survivors and survivor communities, validating how they have been wronged (Hayner, 2011). Naming the crimes and their respective victims can also create a climate in which the public has empathy for the survivors of violence.

3.2.2. Transitional justice Memorialization and criminal justice procedures can be complementary to one another in healing a nation and resisting impunity. In several cases, memorialization and traditional forms of justice have mutually reinforced one another.6 Memorials can grow out of criminal 3  For a further discussion on reparations and the role of apologies post-​atrocities see ­chapter 30 by Stephanie Wolfe in this volume. 4  Victims’ and Land Restitution Law 1448, adopted 10-​ 06-​2010, Juan Manuel Santos government, Colombia 5 Centro de Memoria Historica (2019) “About the National Center.” Available at: http://​ www.centrodememoriahistorica.gov.co/​en/​about-​t he-​national-​center-​about-​t he-​national-​center (Accessed October 29, 2019). 6  For a discussion of customary (traditional) justice after atrocity crimes see Chapter 29 by Joamma Quinn in this volume.

760   Nicole Fox proceedings or they can spur demand for the criminal prosecution of perpetrators. In Argentina, memorialization and public shaming of past human rights abuses/​abusers eventually led to the criminal prosecutions of those who perpetuated torture and killings during the Argentinian Dirty War. Court hearings shifted the interpretation of previous events, altering the way mainstream culture and media described the Dirty War, eventually evoking terms that arose from the Holocaust (such as “genocide” and “crimes against humanity”).7 In Chile, the Museo de la Memoria y los Derechos Humanos (Museum of Memory and Human Rights) opened in 2010 in response to the recommendation of the Chilean Truth and Reconciliation Commission Rettig Report of 1991. The Rettig Report exposed details of the human rights abuses committed by the military dictatorship of Augusto Pinochet from 1973 to 1990. During the early presidency of Michele Bachelet, who herself had been tortured by the Pinochet administration, ground broke in the construction of Museo de la Memoria y los Derechos Humanos (Sodaro, 2018). The report and the museum offer survivors an official record of what they survived, countering denial of the human rights abuses that occurred under Pinochet. In a similar vein, Canada’s Truth and Reconciliation Commission was created to address the legacy of the residential schools, kidnapping, and forced assimilation of Indigenous children, and resulted in a comprehensive settlement that included compensation, survivor-​ led commemoration events, and memorialization initiatives.8 These projects ranged from “traditional and virtual quilts, monuments and memorials, traditional medicine gardens, totem pole and canoe carving, oral history, community ceremonies and feasts, land-​based culture and language camps, cemetery restoration, film and digital storytelling, commemorative walking trails, and theatre or dance productions.”9 A memorial museum has also been proposed, but as of yet, no formal memorial has been constructed. The Truth and Reconciliation Commission functioned as a formal public acknowledgement that wrong had been committed and changed the origin narrative of the nation to include the brutality of colonialization. However, it is important to remember that truth commissions do not always provide healing even when intended, especially for those who have survived sexual violence (Mendeloff, 2004; Phelps, 2004).

3.2.3. State power and control While memorials can complement other transitional justice mechanisms and be a product of democratic judicial processes, memory projects are often curated with the interests of present-​day politicians and elites with a nationalist agenda. Unlike spontaneous and temporary memorials, dedicated to car accidents or mass shootings, permanent physical memorials dedicated to atrocity are curated through a narrative with written texts, 7 Impunity

Watch. (2010) “Memorialisation of Grave International Crimes.” Report of Expert meeting, CHGS, Amsterdam, 15 September. Published by Impunity Watch: The Hague, Netherlands. 8  Aboriginal Healing Foundation (2008) From Truth to Reconciliation: Transforming the Legacy of Residential Schools. Ottawa, Ontario: Aboriginal Healing Foundation. 9  The Truth and Reconciliation Commission of Canada (2015) “Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada.” University of Manitoba: The Truth and Reconciliation Commission of Canada, p. 284.

Memory and Memorialization after Atrocities    761 photographs, and museum-​like displays. As Jenny Edkins (2003, p. 117) argues “[a]‌s long as memories are organized in a framework of nations and states there will always be attempts to recount even genocides and famines as triumphs and their victims as having sacrificed their lives for future generations.” Collective memory is a process of socially reconstructing the past from the perspective of the present by those with authority, often state leaders or those with institutional power. Memorials are the physical manifestation of the process of creating a collective memory in which a complicated past is narrated with the aim to bring about consensus and unity among citizens in divided nations. Holocaust memorial sites have been an important case for researchers because of the significant number of memorials created throughout different decades and across locations; all commemorating the same event but with very different orientations to the narrative of mass killings and intervention. Young’s (1993) groundbreaking study of Holocaust memorials illuminated how sites varied significantly from country to country; Israeli memorials offered stories of heroism and national redemption, while U.S. memorials told a story of complex Jewish identities and the centrality of rescue workers and soldiers. Other cases of mass atrocity have also struggled with how to remember a single event from multiple perspectives. In Cambodia, “[e]‌ven with the seeming disjuncture between Cambodia’s monuments (rooted in state triumphalism) and mass graves (imbued with national trauma), both forms of public remembrance are shaped by a connective sense of national ruination” (Schlund-​Vials, 2012, p. 54). Cambodia is an example of the challenge to capture competing narratives in the national commemorative landscape, for triumphalism and trauma do not easily coalesce into one single symbolic structure or overarching narrative.

3.2.4 A voice for the marginalized Memorials also have the power to shed light on previously marginalized violent historical events. The National Memorial for Peace and Justice, which opened to the public in Montgomery, Alabama, on April 26, 2018, is the United States’ first memorial “dedicated to the legacy of enslaved black people, people terrorized by lynching, African Americans humiliated by racial segregation and Jim Crow, and people of color burdened with contemporary presumptions of guilt and police violence.”10 The memorial structure has over 800 rust-​colored steel columns that hang from the ceiling, one for each county in the United States where a racial terror lynching took place. Each column contains the names of the lynching victims from that particular county. Visitors to the memorial are invited to then visit a separate museum which is located a block away from a former slave auction site. In addition to educating the country on the history of racial terrorism in America, surrounding the site is a field of identical columns lying beside one another, waiting to be claimed and installed in the counties they represent. The national memorial will, over time, “serve as a report on which parts of the country have confronted the truth of this terror and which have not. . . . Eventually, this process will change the built environment of the Deep

10  The

National Memorial for Peace and Justice. Available at: https://​museumandmemorial.eji.org/​ memorial (Accessed: June 30, 2019) (The National Memorial for Peace and Justice 2018).

762   Nicole Fox South and beyond to more honestly reflect our history.”11 It is remarkable that it was not until 2018 when the United States finally memorialized the violent historical events around race-​based terror that have been marginalized throughout U.S. history. Even with dangers of extreme nationalism that frame some as ideal national citizens while marginalizing others, memorialization processes hold the promise of helping survivors, educating future generations, and shedding light on events of the past that have been previously neglected in public discourse. In my own work in Rwanda, I have found that memorialization can help survivors heal and feel recognized. The memorials near their homes serve as sites of social networking, employment, and exchanges of resources (Fox, forthcoming). These sites—​sometimes left eerily intact with blood on the walls and broken windows—​became homes for their beloved family members who were killed in the genocide. Having their family members in a space that is recognized publicly as a site of atrocity, while also being beautifully maintained with gardens and paved, swept sidewalks, pays tribute to their loved ones in ways that make them feel empowered. Memorials that showed visitors the brutality of the genocide, including gender-​based violence, make survivors feel like the world was being shown “the truth.” Showing the truth means justice that could lead to violence prevention (Fox, 2019). Memorialization and collective memory more generally have the power to shape the future by signaling regime change, because “modern states often establish themselves as guardians of the past and, through their monuments . . . [n]‌ew regimes pursue this effort most urgently” (Gordon, 2001, p. 3). New governments engage in memorialization and the creation of monuments to maintain cultural power, but also because during mass atrocity, “memory [is] literally blown up, as monuments, mosques and other concrete manifestations of collective memory [are] erased” (Müller, 2002, p. 1). Referencing Sierra Leone’s regime change, Artemis Christodulou (2004, p. 1) asserts “the struggle for control over the national or ‘collective’ memory lies at the heart of post-​conflict or post-​authoritarian accountability policies.” Collective memory, or how a country remembers its past, can also have an impact on present-​day law (Savelsberg and King, 2005), gender relations (Chakraborty, 2010), mass communication (Hume, 2010), traditions (Gooder and Jacobs, 2000), and possibilities for apology and ideological shifts (Nytagodien and Neal, 2004). One way that memorials can create such long-​term impact is through educating the next generation, current citizens, and the international community about the dynamics and aftermath of mass violence. Genocide memorials have been found to educate through empathy and identification with the victim (Jinks, 2014), curating an experience in which those who attend understand atrocity from the victim’s perspective. Memorial museums are often used as an opportunity to enhance the traditional classroom and build on the history taught in schools, in ways that allow students to connect with material unavailable in traditional classroom settings, such as reading a textbook in isolation (Marcus, 2007). Genocide museums in Rwanda, the United States, and South Africa regularly open their doors free of charge to secondary schools, even going so far as providing transportation to and from the museum. 11 

The National Memorial for Peace and Justice 2018.

Memory and Memorialization after Atrocities    763

4.  The Memory Boom, Contemporary Human Rights Movement, and Justice Cascade: Three Braided Trends Scholars have characterized this era as one of “memorial mania” (Doss, 2010), in which memorials (rather than monuments celebrating a historical figure) have become a viable option in a range of cases in which communities strive to recover from mass human rights abuses. In the years that followed the visually documented mass violence of the 1980s and 1990s, three intertwined movements braided together in ways that have produced the diverse plethora of memorials around the globe in the aftermath of mass violence. During these decades, physical memorials embodied citizens’ newly oriented heuristic that states should be held accountable for human rights abuses. Thus, nation-​states found themselves faced with a mobilized social, political, and moral expectation by their constituencies to commemorate past atrocities beyond the realms of traditional transitional justice mechanisms (such as trials, truth commissions, lustration, etc.). The “memory boom” or “memorial mania” occurred alongside a newly acquired framework for universal human rights which intertwined with what social scientists have termed the “justice cascade” beginning in the 1990s. Together, these three movements created a context in which memorials arose as a viable, widespread, and appropriate reaction to a past of atrocity crimes (Sikkink, 2012). In what follows I address how these social, political, and legal movements centering on human rights, justice, and memory converged in ways that changed the global physical and commemorative landscape, leading us to a present-​day era of “memorial mania.”

4.1. The memory boom The memory booms in the 1890s and then later in the 1980s were time periods focused on memory—​times when art, social science research, religion, and the built environment shifted—​focusing on the remembrance of past, and how to represent the past. The first modern “memory boom” occurred around 1890–​1920 with a focus on art and monuments that evoked national identities and culture (Bell, 2006). The second “memory boom” at the tail end of the twentieth century was a “way out of the confusion bred by the fragmentation of the very identities forged by and during the first ‘memory boom.’ Memory has become in recent years a way of casting about in the ruins of earlier identities and finding elements of what has been called a ‘usable past’ ” (Bell, 2006, p. 55). As Olick and Coughlin (2004, p. 37) argue: The past is very much present on the public agenda, but it is more often a horrible, repulsive past than the heroic golden ages so often part of public discourse in previous centuries. Political legitimation depends just as much on collective memory as it ever has, but this collective memory is now often one disgusted with itself, a matter of “learning lessons” of history more than of fulfilling a promise or remaining faithful to its legacy.

764   Nicole Fox For certainty, both memory booms were about nations and nation-​building, but the second one was founded on a nation and community building that was multifaceted: nostalgia for an imagined peaceful past, solidarity with those who have endured violence, resistance to annihilation, a mechanism for justice, a site to honor loved ones, and a path toward a less violent and brutal future. Out of the second memory boom arose social memory studies that spanned the disciplines of the humanities, social sciences, and natural sciences. These diverse approaches share a commitment to engaging memory processes as a mechanism to better understand history, identity, behavior, and social relations (Olick and Robbins, 1998). While the rediscovery of Maurice Halbwachs’ 1925 book On Collective Memory (Halbwachs, 1992) sparked a resurgence in work that interrogates how the past affects the future, such questions were not new to philosophers or sociologists, even in Halbwachs’ time. Halbwachs’ major contribution to social memory studies is the foundational idea that groups have a collective memory, outside of individual memory, based on the experiences of where they are situated within society. This idea brought to light the ways that the past is reconstructed through the lens of the present and how memory must be continuously evoked in order to stay alive in the present (Halbwachs, 1992). As Zerubavel (1996, p. 289) reminds us, we remember as “members of particular families, organizations, nations, and other mnemonic communities.” One way that institutional powers (which are state actors, prominent and wealthy international NGOs, or well-​organized social movements often tied to some kind of organization) have implemented collective memories is through the creation of physical memorials and commemorative events. These groups create a public memorial or museum that citizens and tourists can visit. Often the development of a memorial is simultaneous with other nation-​building changes or activities: the development of new holidays, flags, annual events, creating new (or dismantling old) street signs. Commemorative events may be an annual commemoration, like the memory rituals which occur throughout Rwanda and the Rwandan Diaspora on April 7, or Holocaust Remembrance Day (Yom Hashoah). Commemorations depend on participation of citizens, while also facilitating participation by “overcoming the separation from which otherwise unaffiliated individuals suffer. . . . Commemorations suggests that separation is a sham” (Casey, 2000, p. 250). In this understanding, for commemorative ceremonies to be effective, “participants must not simply be cognitively competent to execute performance: they must be habituated to those performances” (Connerton, 1989, p. 61). This means that rituals of remembrance must become so engrained and ordinary that they become habits—​processes through which one can go without awkwardness or ignorance but rather knowledge and preparedness. While commemorations can bring people together without critical analysis of the collective memory, it is vital to note that memory formation, including that which occurs through commemorations and memorials, is often a contested process, structured by those who can access and secure institutional power (Wilson, 2001; Savelsberg and King, 2005), and people always use their agency and power to counter hegemonic memory (Whitlinger, 2015). The contemporary intellectual memory boom primarily focuses on the enormity of post–​ World War II devastation and the decline and death of Nazi camp survivors. Memorials to the Holocaust were the first to scatter the memory landscape, a stark departure from the monument culture prior to World War II, but certainly not the only ones. In the United States, for instance, other memorials include the Vietnam Veterans Memorial, Korean War

Memory and Memorialization after Atrocities    765 Memorial, Martin Luther King Jr. Memorial, and more recent memorials such as the 9/​11 Memorial (Simko, 2018) and the memorial to sexual assault survivors in Minnesota.12

4.2. The modern human rights movement Memorials often commemorate the violation of human rights, and while the Universal Declaration of Human Rights13 was adopted in 1948, the modern human rights movement exploded in the early 1970s, picking up much steam in the 1980s and 1990s. A single pinnacle event did not spur the impetus of the movement in the 1970s, but rather a series of historical events collided in ways that opened a political opportunity of global non-​governmental mobilization. The involvement of the United States in various human rights violations and atrocity crimes around the globe during the Cold War struggle against the Soviet Empire, the Vietnam War, and the Chilean military coup in 1973 led by General Augusto Pinochet (who was responsible for the murder and mass torture of political opponents) was depicted, in some instances, for the first time in color print and television. Public awareness paired with the availability of private philanthropy in Western Nations to support non-​governmental human rights movements led to the surge of a diverse group of organizations and actors crusading for the documentation of human rights violations, the promotion of rights-​based systems, and accountability for those who violate the newly established norms of human rights. For example, Amnesty International, one of the largest human rights organizations in the world, grew exponentially from small donations to gaining global mass membership (Neier, 2012). The bestowment of the 1977 Nobel Peace Prize to Amnesty International solidified the birth of a new human rights framework on the global stage and its promising future. The human rights movement gained momentum in the 1970s, and continued to expand in the 1980s to include an agenda of women’s rights, children’s rights, right to health, and disability rights. The broadening agenda spurred the force of the 1990s non-​governmental human rights organizations that emerged around the globe. These years marked a highly mobilized and influential time for human rights politics, ideology, and organizing, which produced a global solidarity that was previously unprecedented. Powerful new organizations dominated the scene, such as Physicians for Human Rights (1985), the Committee to Protect Journalists (1981), International Crisis Group (1995), and Global Witness (1993). These groups expanded their reach from direct aid to include investigations of human rights violations by forensic anthropologists, the protection of journalists worldwide, and supporting physicians practicing in war-​torn communities, among others. The 1990s were stained by the mass killings and other atrocity crimes in cases such as the former Yugoslavia, South Africa, Sierra Leone, and Rwanda, causing some to ask, “[h]‌ow could the rhetoric of human rights be so globally pervasive while the politics of human rights is so utterly weak?” (Cmiel, 2004, p. 118). While protective human

12 

See the Survivors Memorial’s website. Available at: https://​www.survivorsmemorial.org/​ (Accessed: March 8, 2020). 13  Universal Declaration of Human Rights (10 December 1948) GA Res. 217A (III), UN Doc. A/​810 (UDHR).

766   Nicole Fox rights interventions by governments were weak and at times non-​existent (perhaps best demonstrated by the United States’ intentional inaction during the genocide in Rwanda) (Power, 2013), journalists worked to force their audiences to not be complacent (Powers, 2016). As Moyn (2010, p. 7) argues, “[w]hat mattered most of all was the collapse of prior universalistic schemes, and the construction of human rights as a persuasive alternative to them.” Efforts by NGOs to capture media attention on human rights abuses have led to a number of success stories, such as the 1997 treaty to ban land mines,14 the 1998 Rome Statute establishing the International Criminal Court (ICC),15 and divestments to punish countries violating human rights such as Burma in the early 2000s (Soohoo et al., 2009). The human rights movement provided the foundation for the 1990s justice cascade that continues forcefully today.

4.3. The justice cascade The “justice cascade” was a “movement by a network of international actors, organizations, and various justice systems who aim to punish, in an effort to ultimately prevent mass atrocities, influencing a cultural shift in delegitimizing mass violence” (Sikkink and Kim, 2013, p. 269). The justice cascade refers to a historical period beginning with the conclusion of the Nuremberg Trials up until the 2002 adoption of the Rome Statute creating the International Criminal Court.16 Emerging in the 1980s, states began adopting various transitional justice measures to hold individuals accountable for atrocity crimes and deal with the past of mass violence. Such mechanisms include truth commissions,17 reparations,18 trials,19 and memorials or museums. The international tribunals of the 1990s for the former Yugoslavia (Hagan, 2003), Sierra Leone (Arzt, 2006), and Rwanda (Magnarella, 2000) are part of a larger system of accountability that emerged globally in both international and domestic courts. Data from 1979–​ 2000 on trends in domestic prosecutions of human rights abuses and amnesty laws show a significant increase in reaching a verdict or a conviction in the prosecution for human rights violations (Sikkink and Kim, 2013). Such convictions meant that the justice cascade compelled the buy-​in of various situated stakeholders including advocacy groups (Finnemore and Sikkink, 1998), domestic and international NGOs (Struett, 2008), civil society groups (Roht-​Arriaza, 2002; Glasius, 2006), and international organizations (Buergenthal, 1994) in the promotion of trials and a more general accountability ideology. This came with a compulsion to critique the past culture of impunity and the implicit participation of diversely

14  The

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​ Personnel Mines and on Their Destruction (adopted September 18, 1997, entered into force March 1, 1999) 2056 UNTS (Convention on Anti-​Personnel Mines). 15  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 16  Rome Statute, and see also Jeremy Kuperberg’s and John Hagan’s Chapter 1 in this volume. 17  See Jeremy Sarkin’s Chapter 28 in this volume. 18  See Stephanie Wolfe’s Chapter 30 in this volume. 19  See Nancy Comb’s Chapter 26 in this volume.

Memory and Memorialization after Atrocities    767 situated stakeholders in mass violence and slaughter. Remembering such atrocities became a priority of activists, survivors, social scientists, and historians, among others.

5.  Challenges of Memorialization Like all multifaceted mechanisms of transitional justice, memorialization has challenges in both the process and outcome. As discussed, memorials can bring hope and healing to survivors of atrocity and act as a reparation or public apology in conjunction with other forms of transitional justice. However, they can also create new challenges for communities or exacerbate previous inequality. For example, memorialization processes can marginalize women, specific sub-​groups of victims, or various aspects of the violence. On a logistical level, memorialization costs a great deal of funding, which can be difficult for some communities to afford. Memory and memorialization are often marked by a struggle in determining whose memories count and at what cost, for “[m]‌emory is a struggle over power and who gets to decide the future. What and how societies choose to remember and forget largely determines their future options” (De Brito et al., 2001, p. 38). While memorials can illuminate previously marginalized histories of past atrocities, they can also further stratify communities by leaving out diverse perspectives or complexities of the violence. Women are often marginalized in traditional transitional justice mechanisms, such as truth commissions, in ways that mirror their invisibility in memorialization efforts (Ephgrave, 2015). For example, the Srebrenica memorial in Bosnia centers on death of men and has an absence of memorialization of the approximately 50,000 (mostly Muslim) victims of mass rape. Janet Jacobs’ (2017) research in Srebrenica reveals that efforts to generate a more inclusive memorial that would incorporate the mass rape and gendered torture that simultaneously took place was largely ignored by the government. Bosnia is not the only case in which sexual violence during times of social unrest remains out of public remembrance rituals and practices. The rape of Jewish women during the Holocaust did not become prominent in books on the subject until 65 years later, and the National Holocaust Museum in Washington, D.C. is still working to find the best way to include such information (Cooper, 2011). Many survivor narratives of sexual violence in concentration camps were told only in private and kept out of public view. Silence was also present in the case of Somali survivors of rape, where sexual violence was related in personal stories and underplayed in historical narratives (Declich, 2000). In these cases, both collected memories (i.e., narratives) and collective forms of memory (i.e., memorials and commemorations) leave out women’s experiences of violence, reflected in the built environment of commemorative statues, monuments, and memorials. When gender-​based violence is remembered in memorialization, a prominent challenge is how to present such information. Avoiding the reproduction of images or understandings of women as solely victims, such as in the case of some Holocaust memorials, is important, as this “contributes to a literature on genocide in which the violated Jewish woman is reinscribed [as a victim] in post-​Holocaust memory” (Jacobs, 2004, p. 234). This means that curators and scholars have to try to avoid victimizing women a second time in their

768   Nicole Fox scholarship on women survivors, especially women sexual assault survivors. Some scholars have tried to do this by avoiding showing photos of victimized women and highlighting their role as resilient survivors. Others have tried to narrate the gender-​based violence in atrocity through the use of evidence and historical fact (Fox, 2019). In addition to the lack of women in memorialization efforts, the question of who can be qualified as a victim of atrocity has become a central point of contention, such as in the examples from Rwanda (Longman, 2017) and Bosnia (Hodzic, 2010). Referencing memorial projects in the Balkans, Subotic (2013, p. 266) asserts: Instead of being productive instruments of transitional justice, official remembrance efforts in the region . . . have been largely used to entrench further mutually incompatible versions of the past and contribute to a renewed cycle of mistrust, untruth, and injustice . . . memory projects need to be redesigned to include a much broader regional focus which would compel states in the region to confront their pasts directly, and not dwell on their own victimization in isolation.

Indeed, memorialization can become more inclusive with a regional narrative that includes victims of multiple types of violence. As mentioned in the Introduction, the memorial in Berlin to the murdered Jews of Europe leaves out the 6 million non-​Jewish victims of the Holocaust, an aspect that has garnered much public critique. Furthermore, memorialization processes can leave out important dynamics of violence and who was killed. In Cambodia, memorials emphasize the Killing Fields, but neglect the “hundreds of thousands who died as a result of starvation, forced labor, and disease” (Schlund-​Vials, 2012, p. 34). Additionally, the government’s lack of participation in Cambodia’s memorialization process has placed the burden of commemoration on local communities, and “though local killing fields memorials have been built, Tuol Sleng and Choeung Ek persist as the two principle sites for in-​country remembrance, a fact made even more striking given that no nationally sanctioned memorials acknowledging victims (for instance, via name, monument, or cenotaph) exist” (Schlund-​Vials, 2012, p. 34). Like Cambodia, Australia’s commemorative rituals around Sorry Day, a day dedicated to apologizing to the Aboriginal people for the violence they endured, has buried aspects of the violence that are less convenient to remember, such as accusations that the violence was genocidal. Barta (2008) argues that the public apologies to the “Stolen Generation”—​those kidnapped and forced into boarding schools—​buries a history of not just forced assimilation, but genocide. On a more logistical level, memorials cost a significant amount of money and expertise. Often memorial architects, curators, or designers of established memorials collaborate with teams of experts who aim to develop new commemorative spaces (for example, Yad Vashem designers have advised a number of memorials around the globe). To ensure a just process of memorialization, the United States Institute of Peace advises having effective evaluation assessments throughout the process that reference local knowledge before, during, and after the project (Barsalou and Baxter, 2007). Logistically, memorialization is a complex process of mobilizing multiple actors from diverse sectors of social life (financial, architecture, victims of violence, civil servants) in an effort to change the built environment to account a new symbol and narrative of the past. While challenging, communities across the world, on almost every continent, have overcome such challenges to be part of the wave of memorialization efforts we are witnessing at this particular historical moment.

Memory and Memorialization after Atrocities    769

6.  Conclusion Memorialization has become a viable option in the aftermath of atrocity for nations, communities, and individuals around the world. The explosion of memorials throughout the built environment is both a product of the convergence of historical social movements (the 1990s memory boom, the human rights movement, and the justice cascade) and a reflection of memorials’ potential to spur social change. For individual survivors of violence, memorials can function as a site for healing trauma and a physical symbol recognizing all they have survived. For communities and nations, memorials and commemorations can serve as a public acknowledgement of a difficult past, a mechanism of transitional justice and/​or a tool for state control or nationalism. Like other instruments of transitional justice, memorialization has its challenges in both the process and outcome, such as exacerbating previous inequalities or the lack of a trauma-​informed response to those who experienced gender-​based violence. There is much research opportunity to expand our understanding of the role of memorialization in the aftermath of atrocity. Analyzing how survivors, their children and the general public interact with memorials, and if memorials have a lasting impact on their life, is an important venue to explore. Long-​term studies on how a national dedication to memorialization impacts a community’s present-​day decisions on war, hate crimes, and violence would provide information on the enduring legacy of memorialization and if their physical presence has an effect on violence prevention. Decades ago, Young (1992, p. 5) reminded us that: In this age of mass memory production and consumption there seems to be an inverse proportion between the memorialization of the past and its contemplation and study. For once we assign monumental form to memory, we have to some degree divested ourselves of the obligation to remember. In shouldering the memory work, monuments may relieve viewers of their memory burden.

While “never again” has lost its salience and the hope it once held, memorialization in the aftermath of atrocity crimes offers promising possibilities in a quest for a more just and less violent future.

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Memory and Memorialization after Atrocities    771 Hayner, P.B. (2011) Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. New York: Routledge. Hite, K., and Collins, C. (2009) “Memorial Fragments, Monumental Silences and Re-​ Awakenings in 21st-​Century Chile Millennium.” Journal of International Studies 38(2), pp. 379–​400. Hodzic, R. (2010) “Living the Legacy of Mass Atrocities Victims: Perspectives on War Crimes Trials.” Journal of International Criminal Justice 8(1), pp. 113–​136. Hume, J. (2010) “Memory Matters: The Evolution of Scholarship in Collective Memory and Mass Communication.” Review of Communication 10(3), pp. 181–​196. Ignatieff, M. (1998) The Warrior’s Honor: Ethnic War and the Modern Conscience. New York: Macmillan. Jacobs, J. (2004) “From the Profane to the Sacred: Ritual and Mourning at Sites of Terror and Violence.” Journal for the Scientific Study of Religion 43(3), pp. 311–​315. Jacobs, J. (2017) “The Memorial at Srebrenica: Gender and the Social Meanings of Collective Memory in Bosnia-​Herzegovina.” Memory Studies 10(4), pp. 423–​439. Jinks, R. (2014) “Thinking Comparatively About Genocide Memorialization.” Journal of Genocide Research 16(4), pp. 423–​440. Longman, T. (2017) Memory and Justice in Post-​Genocide Rwanda. New York: Cambridge University Press. Magnarella, P.J. (2000) Justice in Africa: Rwanda’s Genocide, its Courts, and the UN Criminal Tribunal. Brookfield, VT: Ashgate. Marcus, A.S. (2007) “Representing the Past and Reflecting the Present: Museums, Memorials, and the Secondary History Classroom.” The Social Studies 98(3), pp. 105–​110. Marschall, S. (2006) “Visualizing Memories: The Hector Pieterson Memorial in Soweto.” Visual Anthropology 19(2), pp. 145–​169. Megret, F. (2010) “Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice.” Buffalo Human Rights Law Review 16(1), pp. 1–​56. Mendeloff, D. (2004) “Truth-​Seeking, Truth-​Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?” International Studies Review 6(3), pp. 355–​380. Moyn, S. (2010) The Last Utopia: Human Rights in History. Cambridge, MA: Harvard University Press. Müller, J.W. (2002) “Introduction: The Power of Memory, the Memory of Power and the Power over Memory.” In: Müller, J.W. (ed.) Memory and Power in Post-​War Europe: Studies in the Presence of the Past. New York: Cambridge University Press, pp. 1–​36. Neier, A. (2012) The International Human Rights Movement: A History. Princeton, NJ: Princeton University Press. Nytagodien, R., and Neal, A. (2004) “Collective Trauma, Apologies, and the Politics of Memory.” Journal of Human Rights 3(4), pp. 465–​475. Olick, J., and Robbins, J. (1998) “Social Memory Studies: From Collective Memory to the Historical Sociology of Mnemonic Practices.” Annual Review of Sociology 24(1), pp. 105–​140. Olick, J., and Coughlin, B. (2004) “The Politics of Regret: Analytical Frames.” In: Torpey, J. (ed.) Politics and the Past: On Repairing Historical Injustices. Lanham, MD: Rowman & Littlefield Publishers, pp. 37–​63. Phelps, T. (2004) Shattered Voices: Language, Violence and the Work of Truth Commissions. Pennsylvania: University of Pennsylvania Press. Power, S. (2013) A Problem from Hell: America and the Age of Genocide. New York: Perseus Books Group.

772   Nicole Fox Powers, M. (2016) “A New Era of Human Rights News? Contrasting Two Paradigms of Human Rights News-​Making.” Journal of Human Rights 15(3), pp. 314–​329. Roht-​Arriaza, N. (2002) “Civil Society in Processes of Accountability.” In: Bassiouni, M.C. (ed.) Post-​Conflict Justice. Ardsley, NY: Transnational, pp. 97–​114. Savelsberg, J., and King, R. (2005) “Institutionalizing Collective Memories of Hate: Law and Law Enforcement in Germany and the United States.” American Journal of Sociology 111(2), pp. 579–​616. Schabas, W. (2010) “Victor’s Justice: Selecting ‘Situations’ at The International Criminal Court.” John Marshall Law Review 43(3), pp. 535–​552. Schlund-​Vials, C.J. (2012) War, Genocide, and Justice: Cambodian American Memory Work. Minneapolis: University of Minnesota Press. Seeger, M.W., and Ulmer, R.R. (2002) “A Post-​Crisis Discourse of Renewal: The Cases of Malden Mills and Cole Hardwoods.” Journal of Applied Communication Research 30(2), pp. 126–​142. Sikkink, K. (2012) The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: Norton, W.W. & Company, Inc. Sikkink, K., and Kim, H.J. (2013) “The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations.” The Annual Review of Law and Social Science 9, pp. 269–​285. Simko, C. (2018) “From Difficult Past to Imagined Future: Projective Reversal and the Transformation of Ground Zero.” Poetics 67, pp. 39–​52. Sodaro, A. (2018) Exhibiting Atrocity: Memorial Museums and the Politics of Past Violence. New Brunswick, NJ: Rutgers University Press. Soohoo, C., Albrisa, C., and Davis, M.F. (eds.) (2009) Bringing Human Rights Home: A History of Human Rights in the United States. Philadelphia: University of Pennsylvania Press. Struett, M. (2008) The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency. London: Palgrave Macmillan US. Subotic, J. (2013) “Remembrance, Public Narratives, and Obstacles to Justice in the Western Balkans.” Studies in Social Justice 7(2), pp. 265–​283. Teitel, R.G. (2003) “Transitional Justice Genealogy.” The Harvard Human Rights Journal 16, pp. 69–​94. Veil, S., Sellnow, T., and Heald, M. (2011) “Memorializing Crisis: The Oklahoma City National Memorial as Renewal Discourse.” Journal of Applied Communication Research 39(2), pp. 164–​183. Whitlinger, C. (2015) “From Countermemory to Collective Memory: Acknowledging the ‘Mississippi Burning’ Murders.” Sociological Forum 30(S1), pp. 648–​70. Wiesel, E. (1986) Nobel Lecture. December 11, The Nobel Prize Organization. Nobel Media AB 2019. Available at: http://​www.nobelprize.org/​prizes/​peace/​1986/​wiesel/​lecture/​ (Accessed: June 30, 2019). Wilson, R. (2001) The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-​Apartheid State. Cambridge: Cambridge University Press. Young, J.E. (1992) “The Counter-​Monument: Memory against Itself in Germany Today.” Critical Inquiry 18(2), pp. 267–​296. Young, J.E. (1993) The Texture of Memory: Holocaust Memorials and Meaning. New Haven, CT: Yale University Press. Zerubavel, E. (1996) “Social Memories: Steps to a Sociology of the Past.” Qualitative Sociology 19(3), pp. 283–​99. Zuern, E. (2012). “Memorial Politics: Challenging the Dominant arty’s Narrative in Namibia.” The Journal of Modern African Studies 50(3), pp. 493–​518.

Pa rt V I

C A SE ST U DI E S A. War Crimes

CHAPTER 32

War Crim es i n A ng ol a Joris van Wijk 1.  Introduction Academic literature on atrocity crimes and transitional justice has so far dedicated little attention to the 27-​year-​long Angolan civil war and its aftermath. Partly, this could be explained by the fact that Angola is a Lusophone (Portuguese) speaking country, which means that relatively few scholars have access to relevant documentation or respondents. Another explanation may be that the end of this almost three-​decades-​long war was marked by a peace agreement that contained a blanket amnesty for all warring parties. Ever since, neither domestically nor internationally, have there been any concrete steps to establish accountability or truth mechanisms. It is perhaps less appealing to write about “nothing happening” in response to atrocity crimes than to publish about (frustrated) efforts to bring about accountability and different responses to atrocities such as the establishment of international, hybrid-​or mixed tribunals, or nationwide truth commissions.1 In this chapter, I hope to convince the reader that when studying atrocity crimes and their aftermath, the case of Angola deserves to be included. After briefly describing the causes of the conflict, the actors involved, and the types of atrocity crimes committed, I will dedicate particular attention to the aftermath of the conflict. First, I will discuss how the Angolan government granted a blanket amnesty to perpetrators of atrocity crimes, without receiving much domestic or international critique. Second, I will discuss if and to what extent—​in the absence of any accountability mechanisms—​alternative strategies to truth seeking, reconciliation, commemoration, or memorialization have been adopted. I will conclude that the Angolan government’s post-​conflict approach is a textbook example of what political scientists would refer to as illiberal peacebuilding: “a process of post-​war reconstruction in which local elites negate liberal peace principles on civil liberties with the aim to construct a hegemonic order and an elite domination over the political economy” (Soares de Oliveira, 2011, p. 287).

1  The

latter, in addition, typically also leads to extensive information about the nature and scale of atrocity crimes committed within a situation.

776   Joris van Wijk Although there is strong evidence that in the context of the War of Independence (1961–​ 1974) numerous atrocity crimes were committed, this contribution focuses explicitly on what is generally referred to as “the Angolan Civil War” (1975–​2002) and its aftermath. In recent Angolan history the level of violence, the intensity of the conflict, and the number of war crimes committed have never been higher than during the Angolan Civil War. This means that I will not dedicate any attention to the insurgency in the oil-​rich Northern exclave of Cabinda, where the Frente de Libertação de Cabinda (FLEC) has been fighting an armed struggle for cessation from the Angolan government in the 1990s and 2000s,2 nor to the internal crackdown of “27 May 1977,” when the Angolan government acted violently in response to a “coup attempt” against the party leadership.3

2.  Methodology This chapter is based on a literature review and explorative qualitative empirical fieldwork in Angola. The literature review consisted of an analysis of relevant academic scholarship, policy documents of non-​governmental and intergovernmental organizations (in particular the United Nations (UN), Amnesty International (AI) and Human Rights Watch (HRW)), as well as publications in (Angolan) popular media.4 In addition, data obtained during two field trips to Angola in January and October 2018 will be presented. During these four weeks in total, I visited the capital city Luanda and the cities Huambo, Benguela, Lobito, and Lubango. Of these cities, Huambo, in particular, has been heavily affected during the civil war. The other cities received many internally displaced persons (IDPs). The field trips allowed me to make observations and speak to 38 respondents about the nature of the atrocity crimes (why they were committed, how they were committed), the consequences of the war, memorialization, and reconciliation efforts. Respondents were selected by means of a convenience sample based on availability and supposed understanding and knowledge about the Angolan (post-​) conflict context. They included priests, representatives of non-​governmental organizations, teachers, (former) students, and university professors. Priests were overrepresented. Being well-​educated intellectuals working in the social domain, they are typically well aware of past and present political and societal developments, in particular in the field of post-​war reconstruction. Because of their pastoral work, they are in close contact with the general population and

2 

For more information about this guerrilla war see, for example, Ojakorotu (2011). During this event –​generally referred to as “a limpeza” (the clean-​up), it is estimated that hundreds to as many as tens of thousands of people have been massacred and tortured. Much of the persistent trauma of the 27 de Maio is due to the fact that this was primarily an internal purge with arbitrary arrests and summary executions, the use of torture, and bodies that were not returned to their families for burial. It is commonly said that afterward there was no family left in Angola that had not somehow been affected by the purges (Shubert, 2015, p. 7). The events are extensively discussed in Lara Pawson’s (2014) book In the Name of the People: Angola’s Forgotten Massacre. 4  Fragments of this literature review and my views on the Angolan post-​conflict situation with regard to amnesties have previously been presented in Van Wijk (2012). 3 

War Crimes in Angola    777 have a good understanding of their wishes, complaints, and needs with regard to social issues, including post-​conflict issues. Respondents were found by way of snowball sampling. A small number of respondents I already knew from previous visits to Angola acted as gatekeepers and referred me to relevant friends, colleagues, and/​or family members. Without translators, I conducted all the interviews myself. In most instances, the conversations took place in an informal setting, for example in a restaurant or at someone’s house or office. The interviews had a semi-​structured or even unstructured character. Sometimes I had the opportunity to prepare well for an interview, reading relevant publications of respondents in advance and preparing a topic list. On other occasions, however, I happened to run into a student on the street or meet a friend of a priest whom I on-​the-​spot requested if he would be willing to answer some questions for my research. Topics discussed differed per respondent. For example, I would ask students about their current or previous educations, while I would ask older respondents to tell me more about their experiences during and after the war. Written notes were taken during and directly after the interviews worked out. Some conversations were as short as 30 minutes, others were in-​depth interviews—​sometimes on multiple occasions—​that could last up to two or three hours. I have only contacted respondents 18 years of age or older. In all instances, oral informed consent was given. The respondents (R1–​R38) were told that the information and views they provided would be used for an academic publication; they were promised anonymity and confidentially.5 As most respondents can be considered to be part of the (cultural) “elite” or “middle-​ class,” it is important to bear in mind that the views represented in this study do not necessarily reflect the views of the Angolan population at large. Respondents were typically well educated and lived in urban environments. It cannot be disregarded that lower-​educated Angolans from rural settings may hold different perspectives. Similarly, it may be the case that my sample of respondents, with an overrepresentation of priests, does not represent the views of higher-​educated urban Angolans in general. The primary empirical data presented in this chapter should, therefore, be considered explorative in nature.

3.  Causes of the Conflict, Actors Involved, and Atrocity Crimes Committed The roots of the Angolan civil war can be traced back to the country’s struggle for independence, when multiple guerrilla groups struggled against the Portuguese forces as well as

5 Two exceptions to this are Father Benedicto Sánchez (R6), who published a book about his experiences in setting up reconciliation projects (Sánchez, 2008), and educational expert Professor Augusto Ezequiel Afonso (R34), who presented the statements that I will refer to during a public conference. He works at the Departamento de Ciências da Educação no Instituto Superior de Ciências de Educação (ISCED), Universidade Katyavala Bwila in Benguela.

778   Joris van Wijk against each other.6 After the collapse of the Portuguese colonial empire in January 1975, the Frente Nacional de Libertação de Angola (FNLA), the Movimento Popular de Libertação de Angola (MPLA), and the União Nacional para a Independência total de Angola (UNITA) fought for the country’s domination. Few commentators would qualify the Angolan civil war as an “ethnically rooted” war. Pearce (2015a, p. 164), for example, stresses that in Angola “enmity between people was the consequence rather than the cause of conflict.” Nonetheless, the three parties did historically represent different groups. As Meijer (2004) argues, the FNLA embodied the aspirations of the northern elite focused on Kinshasa, with some cultural links with the old Kongo kingdom. The MPLA had its heartland in the territory of the Mbundu people, who lived in the hinterland of the capital Luanda. It also included many groups in the urban centers, including some who descended from the old assimilated families of black Angolans and mixed-​race families. The UNITA represented in particular the Ovimbundu people from the surroundings of Angola’s second-​largest city, Huambo. Several scholars, however, nuance the ethnic support that these parties had. Meijer (2004, p. 12) argues that “[t]‌o a large extent the ethnic identification of these movements has come about as a result of conscious political maneuvering by each leadership rather than as a genuine expression of popular sentiment and aspiration. Over time the social and political factors of identity and cohesion have become real.” Having played a central role in the lead-​up to independence and the first years of the civil war, the FNLA—​after having lost some defining battles in 1975 and 1976—​by the end of the 1970s was increasingly marginalized (Gonçalves, 2017). Since the 1980s the civil war was basically a fight between the two remaining former independence movements, the UNITA and the MPLA. The UNITA acted as a rebel force led by its charismatic and undisputed leader Jonas Savimbi, while the MPLA held control over the capital Luanda and its state institutions. The MPLA was, for most of the period, headed by the silent technocrat José Eduardo dos Santos. Over the years, the stakes of the conflict changed. During the Cold War both parties, supported by their external allies, fought in particular for political influence, the Angolan case being a typical “proxy cold-​war” similar to the civil conflicts in, for example, Mozambique or Vietnam. In the 1990s, when foreign support was not given anymore, and ideological or political motivations moved to the background, the war was being increasingly dominated by the “greed” based control of resources.7 As Pearce (2015a; 2015b) explains the official ideologies that defined the Cold War were largely reflected through a prism of Angolan contingencies, identities, and loyalties. In particular, among the highly educated MPLA leaders, there was an awareness of the (communist) ideological orientation of the party’s allies in global politics. They sought and found the support of the Soviet Union and Cuba. As the UNITA had over the years been supported by an eclectic range of foreign allies (ranging from China, South Africa, to the United States) it had fewer possibilities of making ideological appeals directly based on its foreign connections. All these years the 6 

WPF (2015) “Mass Atrocity Endings: Angola Civil War.” World Peace Foundation, Fletcher School, Tufts University. Available at: https://​sites.tufts.edu/​atrocityendings/​2015/​08/​07/​angola-​civil-​war/​ (Accessed September 17, 2019). 7  For more extensive reading about the causes, the course, and the nature of the Angolan conflict, see: Hodges (2001); Pearce (2005); Comerford (2005); Malaquias (2007); Pearce (2015a); Sousa (2017); Gonçalves (2017). For a discussion on the relationship between natural resources and atrocities see Chapter 7 by Kieran Mitton in this volume.

War Crimes in Angola    779 MPLA was, along with foreign support, able to sustain its rule due to the country’s growing oil revenues, while the UNITA forces controlled the diamond trade in the country’s hinterland (Cilliers and Dietrich, 2000). Partly due to the Cold War dynamics and partly due to the fact that a lot of money can be made in war, an important characteristic of the Angolan civil war was that it had over the years attracted a considerable number of non-​Angolan fighters. Most notably, at the early stages of the war (1975–​1977) the MPLA received support from an estimated 25,000 Cuban troops (Foss, 2010). The FNLA in the mid-​1970s recruited dozens of mostly European mercenaries (Hoover, 1977; Gonçalves, 2017),8 while the UNITA in the early years of the civil war relied heavily on the support of an estimated 2,000 South Africans (Andresen Guimarães, 1998, p. 127). In the late 1980s, however, when sub-​Saharan Africa’s most intense battle fought since the Second World War took place at Cuito Cuanavale in 1988, Angola saw the largest surge of foreign troops on its territory. Thousands of South Africans and tens of thousands of Cubans were at that time present in Angola (Andresen Guimarães, 1998). Also noteworthy is that in 1993 the infamous private military contractors of Executive Outcomes sold their services to the MPLA government to fight the UNITA, sending some 550—​primarily South African—​soldiers (Howe 1998, p. 312).9 It is undisputed that both parties, especially in the periods 1992–​1994 and 1998–​2002, committed atrocity crimes. Although foreign troops from Cuba and South Africa were deployed in the early phases of the Angolan conflict, the latter part of the war is generally conceived to be of a non-​international character. It is well documented that throughout the war the UNITA, as well as the MPLA government forces, were responsible for acts of war crimes, which may in certain cases also be classified as crimes against humanity, such as torture, sexual violence, summary executions, the indiscriminate killing of civilians, pillaging during military operations, and the recruitment of child soldiers (Doria, 2002; Wessells, 2007).10 Although Angolans euphemistically refer to the war as confusão (confusion),11 the accounts of survivors are horrifying and demonstrate that the civilian population—​in many instances not having any strong ideological or tribal preference for either party—​was often

8 

Hoover’s account reads like a classic adventure novel. As the U.S. Congress ostensibly feared another Vietnam-​type involvement, it voted overwhelmingly to halt further covert U.S. aid to Angola’s pro-​ Western forces. Instead, the FNLA apparently used the remaining U.S. financial aid to buy arms and to recruit soldiers in Europe: “Self-​styled ‘soldiers of fortune’ were making plans to participate in the struggle in Angola. An English organization called ‘Security Advisory Services’ was offering recruits a $300 advance and a salary of $300 a week. . . . The first batch of 25 left London for Zaire on January 18, 1976; a month later 128 more recruits departed. The money to pay them reportedly came from bundles of crisp, consecutively numbered American $100 bills.” (Hoover 1977, p. 326). 9  Cynically, many of the soldiers fighting for Executive Outcomes on behalf of the MPLA in the 1990s had, as South African soldiers in the 1980s, fought against the MPLA (Howe 1998). 10 Human Rights Watch (1999) Angola Unravels; the Rise and Fall of the Lusaka Peace Process. New York: Human Rights Watch; Human Rights Watch (2003) Forgotten Fighters; Child Soldiers in Angola. New York: Human Rights Watch; Amnesty International (2009) 2009 Annual Report for Angola. Amnesty International. Available at: https://​www.refworld.org/​ publisher,AMNESTY,ANNUALREPORT,AGO,4a1fae0246,0.html (Accessed September 17, 2019). 11  Stojetz translates it as “imbroglio” (2016, p. 113), while Pearce explains that confusão can “signify anything from a minor understanding to a massacre” (Pearce, 2002, p. 220).

780   Joris van Wijk caught between fires and forced to “opportunistically” choose sides whenever the situation required them to do so. Illustrative of the difficult position civilians were confronted with are the memories that R21 and R30 have about the “55-​day war” in and around Huambo in 1993–​1994. In those years the UNITA and the MPLA fought for control over the city and its surroundings: How you presented yourself depended on which party occupied you. If the UNITA held the village, you’d have to tell that you supported the UNITA. If the MPLA controlled the area, you’d have to wave the MPLA flag. You were constantly shifting, constantly choosing sides . . . many died. . . . (R21). When the UNITA controlled the city, if you’d have bacalao [dried fish] and UNITA soldiers noticed this, you ran the risk of being killed. They would say: ‘How could you get hold of this fish? You must have contacts with the MPLA!’ This similarly could happen if you’d have [other luxury goods such as] clothes or salt. . . . Children of six, seven years old were kidnapped and worked as porters between enemy lines, without clothing, without food. We have these wooden drums to pitch fuba [cornflower]; babies were thrown in and stamped to death. People died because of hunger, but were at the same time forced to come to political rallies. Would you not, you ran the risk to disappear. . . . Being a government official was equalled to being an MPLA-​supporter. They had to go into hiding or try to leave the city. . . . The MPLA equally caused much suffering. Indiscriminate shelling, forcing civilians to march the coast; who could not follow, was left behind. . . . (R30).

Another respondent who had picked up a job as a teacher in a part of Huambo that was at a certain moment controlled by MPLA government forces remembered that, in particular, older boys ran the risk of being recruited for the army: On various occasions it would happen; I’d have a class full of children and soldiers would come in. They would point fingers at the children and shout: “You, you, and you, come along!” Without their parents knowing, they were picked from school to fight (R29).

In what could be described as the second wave of violence—​from 1998 to 2002—​the UNITA, in response to increased military operations by the government, increasingly made use of terrorist tactics. A particularly notorious attack took place in the final stretch of the conflict in 2001 when the UNITA attacked a passenger train with 500 displaced persons. The train hit two mines, derailed and burst into flames before guerrillas sprayed it with gunfire. Allegedly 150 persons died.12 In those same years, government forces as a counter-​ insurgency strategy deployed a “scorched earth tactic” by destroying villages and crops in order to cut off the food supply to the UNITA. Large numbers of civilians were forcefully displaced and many died as a consequence (Malaquias, 2007).13 In February 2002 Jonas Savimbi was killed by Angolan government troops. This marked the start of peace negotiations between the remaining UNITA members and the Angolan

12  BBC (2001) “Rebels Claim Angolan Train Attack.” BBC News, August 13, 2001. Available at: http://​ news.bbc.co.uk/​2/​hi/​africa/​1489317.stm (Accessed January 20, 2019). 13  MSF (2002) Angola after the War Abandonment: A Collection of Témoignages from Angola. Médecins Sans Frontières, August 2002. Available at: https://​reliefweb.int/​sites/​reliefweb.int/​files/​resources/​ 792A8413C2F4F14449256C53002999A6-​msf-​ang-​aug.pdf. (Accessed September 17, 2019).

War Crimes in Angola    781 government, which resulted in the signing of a peace agreement on April 4, 2002: the Luena Memorandum of Understanding.14

4.  Consequences of the Atrocity Crimes The country has been heavily affected by 27 years of civil war. In 2000, when the worst violence was still to come, 61 percent of all Angolans lived below the poverty line (Simon, 2001, p. 510), and Angola ranked 160 out of 174 countries on the United Nations Development Programme (UNDP) Human Development Index.15 That very year UNICEF declared Angola, together with Sierra Leone, as the worst country in the world for children to grow up in.16 Average life expectancy was 42 years, only 31 percent of the population had access to safe water, and the adult literacy rate was believed to be between 30 and 50 percent (Tvedten, 2001). With an estimated 15 million land mines and an amputee population of 70,000, Oppong and Kalipeni (2005) described Angola as one of the highest land mine–​ affected countries in the world. No wonder that during the war many Angolans had left their homes and the country. Forced by violence or in search of better opportunities, the conflict has led to 4 million IDPs, an estimated 450,000 refugees fleeing to neighboring countries (Porto et al., 2007) and tens of thousands migrating to Europe (Van Wijk, 2010). In 2015, as part of its “Mass Atrocity Endings Project,” the World Peace Foundation (WPF) estimated that between 500,000 and one million people died as a consequence of the civil war, of which, at least 50,000 were civilians.17 When the peace agreement was finally signed, the country was wrecked. In August 2002, four months after the conflict ended, Médecins Sans Frontières (MSF) described the situation in Angola as “catastrophic,” portraying a depressing picture of a country in dismal conditions, with little hope of improvement: Families torn apart and scattered across the country. People trapped in one of the most violent and longest-​running civil wars in Africa since decolonization. Widespread despondency. A society with communities completely disintegrated. . . . Having survived this hell . . . the people interviewed by MSF . . . are in an indescribable state of stupor and trauma. . . . Nothing leads us to believe the situation will evolve positively, and the plans that have been brought up

14 Talking to a young woman just months after the peace agreement, journalist and researcher Justin Pearce noted that not only during the war, but also afterward alliances were opportunistic and could change quickly: Respondent: “I used to be a member of UNITA. But now I’m a member of the government.” Question: “Why are you a member of the government?” Respondent: “Because I am here with the government.” (Pearce, 2015a, p. 1) 15 UNDP (2000) “Human Development Report 2000.” Oxford: United Nations Development Programme. Available at: http://​hdr.undp.org/​sites/​default/​files/​reports/​261/​hdr_​2000_​en.pdf (Accessed September 17, 2019). 16  UNICEF (2000) State of the World’s Children. New York: United Nations Children’s Fund. 17  WFP for this study referred to, inter alia, Leitenberg (2003), Ziemke (2008), Lacina (2009) and Heywood (2011). For an additional overview of the many challenges Angola faced in the post-​conflict phase, see Robson and Cain (2006) and WPF (2015) “Mass Atrocity Endings: Angola Civil War.” World Peace Foundation, Fletcher School, Tufts University. Available at: https://​sites.tufts.edu/​atrocityendings/​ 2015/​08/​07/​angola-​civil-​war/​ (Accessed September 17, 2019).

782   Joris van Wijk are still languishing hopelessly on the drawing board. Only if the leaders have sufficient will to act, will it be possible to truly improve the fate of the people . . . across Angola.18

Given all this, one could, therefore, argue that Angola has over the past 15 years done remarkably well. As explained by Soares de Oliveira (2016, p. 79), directly after the war two unrelated developments allowed the government to start reconstructing the country. The first was the extraordinary resources generated by the doubling of oil production from 2002 to 2008,19 which happened simultaneously with skyrocketing oil prices (from about $20 a barrel at the end of the war to $147 by mid-​2008). The second was the establishment of a strong alliance with China, which generated important resources for reconstruction. With an annual average growth of the Gross Domestic Product (GDP) of 11.1 percent from 2001 to 2010,20 the country has over the past years in particular focused on repairing and improving its ravaged infrastructure. Since the end of the war, three rounds of reasonably free and fair elections (2008, 2012, and 2017)21 have passed without much violence, with the UNITA being the largest political opposition party. The MPLA is still firmly in power, but landslide victories of having more than eighty percent (2008) might be something of the past. In the 2017 elections, the MPLA won with a “meager” 61 percent of the votes (Eisenhammer, 2017). Last but not least, after having been in power for 38 years, in 2017 Africa’s then second-​longest-​serving leader,22 President Eduardo dos Santos, voluntarily stepped down and handed over power to his hand-​picked successor, former Minister of Defense João Lourenço.23 Although Lourenço was generally considered to be a trusted friend of the dos Santos family, “JLo”—​as he is popularly referred to—​already in his first year as Head of State started to live up to his promised crackdown on nepotism and corruption. Several key officials, including the family of dos Santos, have been investigated in connection with corruption and money-​laundering allegations. These include dos Santos’ son as head of 18 

MSF (2002) Angola after the War Abandonment: A Collection of Témoignages from Angola. Médecins Sans Frontières, August 2002. Available at: https://​reliefweb.int/​sites/​reliefweb.int/​files/​resources/​ 792A8413C2F4F14449256C53002999A6-​msf-​ang-​aug.pdf. (Accessed September 17, 2019), p. 18. 19  In 2008, Angola surpassed Nigeria to become Africa’s biggest oil producer. Reuters (2008) “Angola Surpasses Nigeria as Top Africa Oil Producer.” Reuters, May 15. Available at: https://​www.reuters.com/​ article/​opec-​africa-​idUSL1590863520080515. (Accessed September 17, 2019). 20  Economist (2011) “Daily Chart; Africa’s Impressive Growth.” The Economist, January 6. Available at: https://​www.economist.com/​graphic-​detail/​2011/​01/​06/​africas-​impressive-​growth (Accessed September 17, 2019). 21  In particular the 2008 election—​the first held after the 1992 elections that turned out to be the precursor of much violence—​was critiqued for being marred by irregularities. Human Rights Watch, for example, refers to the obstruction by the National Electoral Commission (CNE) of accreditation for national electoral observers, its failure to respond to media bias in favor of the ruling party, and severe delays by the Angolan government in providing funds to opposition parties. Human Rights Watch (2008) Angola: Irregularities Marred Historic Elections, Human Rights Watch. Available at: https://​www.hrw.org/​ news/​2008/​09/​15/​angola-​irregularities-​marred-​historic-​elections (Accessed September 17, 2019). 22 Only one month shy of Equatorial Guinea’s Teodoro Obiang Nguemaongest. France24 (2017) “Angola Swears in First New President for 38 Years.” France24, September 26. Available at: https://​ www.france24.com/​en/​20170926-​angola-​swears-​first-​new-​president-​38-​years-​lourenco-​dos-​santos-​ mpla (Accessed September 17, 2019). 23  France24 (2017) “Angola Swears in First New President for 38 Years.” France24, September 26. Available at: https://​www.france24.com/​en/​20170926-​angola-​swears-​first-​new-​president-​38-​years-​ lourenco-​dos-​santos-​mpla (Accessed September 17, 2019).

War Crimes in Angola    783 the sovereign wealth fund, and his daughter as head of the state oil company Sonangol (Vines, 2018). That said, it should be stressed that Angola still faces many challenges, some clearly as a consequence of wartime atrocities, others because of political opportunism, mismanagement, or nepotism. Stojetz (2016), for example, published an extensive study about the relationship between wartime sexual violence and post-​conflict domestic violence in Huambo. There have been numerous challenges related to the Disarmament Demobilization and Reintegration (DDR) of ex-​combatants. Of the estimated three to four million small arms that were in the hands of civilians, by 2008, only about 200,000 had been handed in (Andersen, 2001, p. 71). The MPLA regime is characterized by many as an authoritarian kleptocracy that does not differentiate among party, state, and administration (Messiant, 2007; Péclard, 2008; Soares de Oliveira, 2016). In 2017, no Ovimbundu or Bakongo held any real power in the state, despite token placements within the leadership of the military and the cabinet (Roque, 2017, p. 10). Due to plummeting oil prices and the slow pace of economic diversification, in 2017 the country was at risk of bankruptcy. Although oil had generated over 468 billion US dollars since the end of the war,24 the majority of Angolans still subsist on less than $2 per day.25 The population is increasingly complaining and the government has increasingly resorted to repression (Roque, 2017). The most mysterious and sinister campaign taking place in April 2015, when security forces clashed with followers of the Seventh-​Day Adventist Light of the World Church in the province of Huambo. Human rights activists and opposition leaders claim that during the ensuing “Mount Sumi Massacre” thousands of people were killed (Marques de Morais, 2015; Roque, 2015).

5.  Reaction to Atrocity Crimes: Criminal Accountability The 2002 Luena Memorandum of Understanding granted a blanket amnesty regarding all crimes committed during the conflict.26 That the Angolan government would opt for granting a blanket amnesty should not have come as a surprise to the international community. Already in 1994, the so-​called “Lusaka Protocol” was set up to foster a peace process in Angola. This Protocol included that the competent institutions should grant an amnesty for the illegal acts committed by anyone in the context of the conflict. Article 6 of the Protocol literally called on the Angolan people “in the spirit of National Reconciliation . . . (to) forgive and forget the offences resulting from the Angolan conflict and face the future with tolerance and trust.”27 Up until 2001, the UN Security Council supported the Government

24 

Africa Confidential (2016) “Dos Santos Picks His Man” 57(25), December 16, 2016. (2016) Angola Country Report 2016, Bertelsmann Stiftung’s Transformation Index (BTI). Available at: https://​www.bti-​project.org/​en/​home/​ (Accessed June 9, 2019), p. 4. 26  Available at University of Notre Dame, Peace Accords Matrix: https://​peaceaccords.nd.edu/​accord/​ luena-​memorandum-​understanding (Accessed September 11, 2019). 27  Available at University of Notre Dame, Peace Accords Matrix https://​peaceaccords.nd.edu/​accord/​ lusaka-​protocol (Accessed September 11, 2019). 25 Bertelsmann

784   Joris van Wijk of Angola “in its efforts to implement the Lusaka Protocol.”28 No reservations with regards to article 6 were made. In this light, it is, however, remarkable that less than one year later Ibrahim Gambari—​representative of the Secretary-​General—​in signing the Memorandum on behalf of the United Nations as witness, expressed and entered into the text of the Memorandum, a reservation concerning the nonrecognition by the United Nations “of any general amnesty that includes genocide, crimes against humanity and war crimes.”29 During the Security Council meeting, Gambari reported: That statement of principle left some apprehension in the minds of UNITA and some people in the armed forces of Angola as well as in some segments of civil society who felt that this position by the United Nations may undermine the peace process, because some combatants may believe that it negates the provisions of the amnesty law that had recently been passed by the Angolan National Assembly. I went to great lengths and spent considerable time during my visit to explain and clarify the principled position of the United Nations on this issue (p. 3).

Amnesty International also stated: “While acknowledging the difficulties in reaching a cease-​fire agreement, Amnesty International maintains that there can be no reconciliation, and therefore no lasting peace, without both truth and justice”.30 Other international actors such as the European Union and the governments of the United States, Russia, and Portugal generally accepted the amnesty without much critique (Van Wijk, 2012, p. 750). Domestically, there were mixed reactions to the amnesty. Although the National Assembly of Angola had in 1999 still called for the arrest and prosecution of senior UNITA members for war crimes and international terrorism,31 this position changed diametrically after the signing of the peace agreement. Since signing the peace agreement, Angola’s official “post-​conflict policy” is to not to look back at the past, but instead focus on the future, and parliamentarians (most belonging to either the MPLA or the UNITA) have since accepted this. Forgetting has become an official policy (Van Wijk, 2012). This is perhaps best illustrated by an official statement of the Angolan government in April 2005. While

28  UNSC Press Release (15 November 2001) SC/​7215. For more details on the different peace accords and related amnesty regulations, as the demobilization, disarmament, and re-​integration (DRR) process, see for example Almeida et al. (2010). 29  UNSC Meeting Record (23 April 2002) S/​PV.4517. The Situation of Angola. Though remarkable with regard to the earlier statement of the Security Council, the reservation is less remarkable in a broader context. Gambari’s statement was in line with the United Nations’ position regarding the peace deal brokered in Sierra Leone two years earlier, where the UN also made a reservation regarding perpetrators of international crimes (Stahn, 2002, p. 199). Gambari might have also anticipated the UN High Commissioner for Human Rights (UNHCHR) Resolution on Impunity, who explicitly recognized that: “Amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take actions in accordance with their obligations. . . . Crimes such as . . . war crimes . . . are violations of international law and . . . perpetrators of such crimes should be prosecuted or extradited.” UNHCHR Resolution 2002/​79 (2002) UN High Commissioner for Human Rights Resolution on Impunity. E/​2002/​23-​E/​CN.4/​2002/​200. 30  Amnesty International (2002) Angola: A New Ceasefire; A New Opportunity for Human Rights. Amnesty International. Available at: https://​www.amnesty.org.uk/​press-​releases/​angola-​new-​cease-​fire-​ new-​opportunity-​human-​rights (Accessed September 17, 2019). 31  Report of the Secretary-​General on the UN Observer Mission in Angola (MONUA), UN Doc: S/​ 1999/​202: February 24, 1999

War Crimes in Angola    785 remembering the third anniversary of the peace agreement, it stated: “Angolans have to regain their self-​respect, they have to look to tomorrow with confidence, leave the problems of the past behind and walk together to the future” (Lusa, 2005). Civil society actors have responded more critically over the years. Some sixty smaller political parties questioned the amnesty in a letter to the President (Griffiths, 2004). As time passed by, however, little to no domestic NGOs have called for prosecuting perpetrators of war-​time atrocity crimes. A 2009 study of the International Center for Transitional Justice (ICTJ) mentions that the complexities of the wounds suffered by the Angolan people made a number of civil society activists believe that criminal prosecution would not be a favorable option.32 Referring to the amnesty clause as “a good idea” (R24) or “a miracle” (R29), most of my respondents expressed support for the amnesty and did not favor any quest for criminal accountability. R38, a priest and long-​time peace activist remembers: Directly after the peace agreement there was no room to question the amnesty. There really was a risk that the war would re-​emerge. . . . And the amnesty was also the interest of the international community: everyone wanted the war to stop as soon as possible so they could start exploiting the oil, the diamonds.

Although it may be understandable that the Angolan people, civil society, and western countries supported the amnesty, it may be more surprising that not a single representative of the United Nations or rights-​based international NGOs such as Amnesty International has over the past years actively repeated and propagated their call to hold Angolan war criminals accountable. The case of Angola demonstrates that these actors—​though taking a “principled position” during and directly after the signing of the peace agreement—​ actually seemed to acknowledge that it might, in certain specific situations, be better to be “principled for a day” (Van Wijk, 2012). Since it could potentially hamper the fragile peace negotiations, critique on the blanket nature of the amnesty in Angola was merely voiced before and immediately after the amnesty was granted, not to be repeated anytime, anyplace, anywhere, anymore.33 Consequently, to my knowledge, not a single Angolan national has been held criminally accountable for atrocity crimes within or outside Angola. The only Angolans who faced legal consequences because of alleged involvement in atrocity crimes are those who have been excluded from refugee protection on the basis of Article 1F exclusion clause in the Refugee Convention (Bolhuis and Van Wijk, 2015).34 Interestingly, however, already at the first stages of the civil war a number of foreign soldiers have been held accountable for atrocity crimes. In 1976 thirteen Western mercenaries who fought on behalf of the FNLA were prosecuted in Angolan courts on the charges of being mercenaries, having committed crimes against peace, and “murders, maltreatment, insults and harassment of members of the civilian population, murder of MPLA members, of other mercenaries and of other 32 

ICTJ (2009) Southern African Regional Assessment Mission Report; Angola. International Center for Transitional Justice. Available at: https://​www.csvr.org.za/​images/​angola.pdf (Accessed August 18, 2019) (ICTJ Report 2009). 33  For a more extensive analysis of why Western European countries, the UN, and international NGOs may have kept silent about the ongoing impunity, see Van Wijk (2012). 34  For example, in the Netherlands 26 Angolans were excluded between 2000 and 2010 (Bolhuis and Van Wijk, 2010).

786   Joris van Wijk FNLA soldiers, kidnapping of civilians and stealing of their property” (Hoover, 1977, p. 333). In particular, British former paratrooper and convicted robber Costas Georigou—​“Colonel Callan”—​obtained notoriety for having ordered the execution of fourteen of his own men after accusing them of “cowardice in the face of the enemy.”35 Fellow mercenaries referred to him as “completely ruthless” and a “homicidal maniac” who shot black tribesmen for fun (Hoover, 1977). The People’s Revolutionary Court in Luanda sentenced him and three others to death by firing squad and nine others to prison sentences ranging from sixteen to thirty years.36 Finally, for the legal connoisseur, it might be interesting to note that also in 2002, out of a group of some 600 foreigners who had been fighting for the UNITA, another foreign fighter was arrested: former Rwandan army chief Augustin Bizimungu. After having been charged for genocide for already eight years, Angola transferred him to the International Criminal Tribunal for Rwanda (ICTR) which convicted him to thirty years imprisonment.37

6.  Reaction to the atrocity crimes: truth and reconciliation For the Angolan government, the granting of amnesty in and of itself encompassed the process of reconciliation. This can be deduced from the fact that the amnesty ruling was the sole paragraph in the Luanda Memorandum under the heading “Issues of National Reconciliation.” As ICTJ38 concluded: “In practice, reconciliation has been limited to the warring parties putting aside all past differences, without exploring the causes of the conflict.” Indeed, never has the Angolan government taken any concrete steps to sincerely promote a dialogue between former warring parties or to engage in some sort of self-​ examination and investigate the root causes and the nature of the conflict.39 The process of reconciliation was equaled to the process of rebuilding the nation. Shubert (2015, p. 1) argues that ever since the war ended, the MPLA government “has been promoting a ‘master narrative’ of ‘peace and reconstruction’, through which the Angolan conflict is re-​signified

35 

Time (1976) “The World: Mercenaries: ‘A Bloody Shambles.’ ” February 23. Available at: https://​ www.mercenary-​wars.net/​angola/​time-​mag-​23-​02-​76.html. (Accessed September 17, 2019). 36  For original footage, see the mini-​ documentary, Associated Press (1976) RR7625A Angola: the Mercenaries’ Trial. Available at: http://​www.aparchive.com/​metadata/​youtube/​ a7d11f1a29bcf821bff673e33c62e58d (Accessed January 19, 2020). 37  UN International Residual Mechanism for Criminal Tribunals (2014) Appeals Chamber Delivers Judgement in the Bizimungu Case, 30 June 2014. Available at: https://​unictr.irmct.org/​en/​news/​appeals-​ chamber-​delivers-​judgement-​bizimungu-​case (Accessed September 11, 2019). 38  ICTJ Report 2009, p. 13. 39  A striking detail is that when it comes to other countries, Angola may promote a different approach. During a 2015 United Nations Security Council Meeting on how Bosnia and Herzegovina should deal with its past, the Angolan representative advised that “fundamental to the prevention of conflicts is addressing the root causes, promoting inclusive political dialogue and creating an environment conducive to unity in society-​based ethnic diversity.” (Statement by the Permanent Representative from Angola to the United Nations, at the Security Council Meeting on Bosnia and Herzegovina 2015, 8 July 2015).

War Crimes in Angola    787 as a merely technical issue, and the question of ‘national reconciliation’ is limited to the reconstruction of infrastructures.”40 True as this may be for the Angolan government, this does not mean that other (non-​ governmental) actors from the start settled for this politics of clemency and forgive-​and-​ forget-​approach. For example, days after signing the peace-​agreement the Namibian based National Society for Human Rights (NSHR) called for a South African–​style Truth and Reconciliation Commission (TRC).41 In Angola views remained mixed. In 2006, Pedro (2010) interviewed 20 prominent Angolan church leaders about the appropriateness of a Truth and Reconciliation Commission for Angola. They were divided on the matter, with 12 of the leaders opposed to such an endeavor, 7 in favor, and 1 refused to answer.42 As time went by, the church, as well as most NGOs, have shifted their attention to other, more contemporary and pressing issues. By 2009, an ICTJ study (2009) based on conversations with domestic civil society actors concluded that a South African TRC-​model was not deemed ideal since virtually the entire country had been involved in the conflict. In addition, the struggle of day-​to-​day existence most Angolans still face leaves little time to search for truth or reconciliation. As one of the interviewed representatives of civil society put it: “Should we [Angolans] all sit at an Angolan TRC? How can we expect Angolans, exhausted from years and years of conflict, to even entertain such an idea?”43 The respondents I talked to in 2018 largely voiced the same opinion, stressing that they themselves would not favor any sort of public truth and reconciliation efforts aimed at bringing together victims and perpetrators. Illustrative is the account of a priest (R7): “It

40 “By framing this dark period as a situacão beyond anyone’s responsibility, and by constantly reminding people of the confusão and material damages it brought about, the war has been emptied of any political agency or meaning,” Shubert (2015, p. 11). Reducing the war to its material dimension, “peace” and “reconciliation” have equally been conceived of as technical solutions. “If ‘peace’ equals ‘reconstruction’—​a common goal shared by all Angolans, according to the master narrative—​any other form of reconciliation (such as dialogue with former enemies, for example), is not merely absent, it is unnecessary, and even counter-​productive” (Shubert (2015, p. 11). 41 IRIN (2002) “TRC Needed for Angola,” The New Humanitarian, April 5. Available at: http://​ www.irinnews.org/​news/​2002/​04/​05-​0 (Accessed August 18, 2019). 42  Pedro (2010, p. 68-​69) reports on this: “Those who were opposed argued that the perpetrators of civil war crimes now occupy politically and economically powerful positions within Angola and, in any event, would not likely want to confess their actions to a population whose wounds were still so fresh. Also, given that most of the victims of these civil war crimes were weak and poor, most of the perpetrators would see very little reason for making such admissions, given that the victims pose no significant threat. Without a commitment from the highest levels of government for such a Commission had little chance of success, or of occurring at all. Those in favour of the idea, contended that churches have a prophetic mission to insist on accountability for political wrongdoing and on government responsiveness to the welfare of the people. These religious leaders pointed out that amnesty provisions for perpetrators were included in the Luena agreement, so the purpose of a Commission would not be to punish offenders but rather to facilitate a public process that might contribute to healing for the traumatized and for forgiveness to those responsible for the people’s trauma.” 43  ICTJ Report 2009, p. 13. As an exception to this, it is worth mentioning that in April 2015 three Angolan NGOs held a conference in Luanda titled “On the Right to Truth and Collective Memory, Calling for a Stronger Rights Based Approach to Truth and Memory’. AJPD (2015) “Conclusões e Recomendações da Conferência Nacional sobre o “Direito à Verdade e à Memória Colectiva como Direitos Humanos na construção do Estado Democrático de Direito,” Report: Associação Justiça, Paz e Democracia, Luanda, April, 2015.

788   Joris van Wijk happened, we forgot about it and continue. Most people do not feel the urge to talk about it.” Another priest (R6), referring to the daily struggles that people still face, stated: The present absorbs the past. I’ve spent eleven years in . . . [a region seriously affected by the war] and I’ve never heard anyone about searching for truth. They have no interest to dig into the past. . . . Every people has its own way of dealing with the past.

With one exception of a legal scholar who expressed to be a strong supporter of the idea to set up a truth commission (R20),44 most other respondents made similar statements,45 also referring to the fact that any digging into the past could lead to finger-​pointing who was to blame and a “witch hunt” (R9).46 A priest who has been involved in peace-​making and reconciliation efforts since the early 1990s (R38) stressed that people are not interested in what he referred to as “such theoretical issues.” Restorative approaches have to be pragmatic. “They’d say: ‘I don’t wish to talk about trauma. What I need is food on the table.’ ” Directly after the war, he nonetheless claimed to have been involved in “informal reconciliation ceremonies:” People in these regions have strong beliefs and think: “whenever I kill someone, his spirit will follow me. I can’t go ahead with my daily life without facing that wrongdoing.” So directly after the war—​very informally—​we held ceremonies without any prepared framework or orientation. . . . Soldiers would for example come to me and say: “we killed many people, my life cannot go on without reconciling.” . . . Then I celebrated masses.

Somewhat surprised, I asked if during these reconciliation processes victims or surviving relatives would be present. In response, I was told that these ceremonies were “about the perpetrator seeking a solution to his problems, not so much about the victim.” We were lost in translation. Rather than defining reconciliation as an interpersonal or intergroup process focusing on the relationship between victims and perpetrators that discuss past wrongs and/​or ask for reform or forgiveness—​elements of reconciliation commonly referred to in transitional justice literature47—​the priest interpreted “reconciliation” in a Christian way: as an element of salvation, a form of atonement after having sinned.48 This difference is not 44  “For

a long time the mantra was; we will not talk about it. But many people have disappeared, nobody knows where they are. A lot of people are still hurt . . . If we cannot talk about it, we cannot come to peace. I take the position; crimes of this nature cannot be forgotten. We have to investigate the facts, what crimes have been committed.” 45  For example, R27, a psychologist: “Young men were picked up: you fight with us, you fight with us. Families were torn apart with one son fighting for the UNITA and the other for the MPLA. But they don’t look back; they are one family and don’t talk about what happened. . . . The real causes of the war, we never understood, we still don’t.” R15, completely in line with the above: “My father was a member of the MPLA army. His brother was active for the UNITA. From the moment the peace deal was signed, we sat together at diners. We never talk about the war. . . . It is like religion; some are Catholic, other Methodist.” 46  (R24), a young woman who studied in Huambo and had lost several family members in the war, nonetheless said: “Tearing up old wounds would only lead to problems; we should not say ‘this one is the UNITA, this one is the MPLA’. Instead we should say: ‘all for a better Angola!’ so we don’t repeat.” 47  See for example the description as given by the International Center for Transitional Justice (ICTJ), available at: https://​www.ictj.org/​publication/​reconciliation-​transitional-​justice (Accessed September 17, 2019). 48 This Christian interpretation is not to be mistaken with the conceptualization of “individual reconciliation” given by ICTJ, which refers to victims reconciling themselves with their past experiences, available at: https://​www.ictj.org/​publication/​reconciliation-​transitional-​justice (Accessed September 17, 2019).

War Crimes in Angola    789 about semantics; R38’s concept of reconciliation is plainly very different from what I understood it to be. It confirmed something I had learned before: whenever Angolans speak about post-​war reconciliation, one has to be wary of what interpretation of the concept they refer to. Months earlier, I had a similar experience when, by pure coincidence, I happened to share the table with another priest, Father Benedicto (R6). As it turned out, this Spanish Father had, in the period of 2002–​2008, been very active in post-​war reconciliation activities. What started as unplanned visits to army encampments where former UNITA fighters had been incorporated in the state army, over time, evolved into a country-​wide tour that encompassed over sixty “reconciliation ceremonies” for higher echelons in the army, rank-​ and-​file soldiers, military police, and special forces. Overall, thousands of former fighters have frequented these gatherings. Similar to what R38 had told me, these meetings took place without civilian victims: There were a lot of young people with wounded hearts. During these meetings they had questions about their religion. They had no interest who had been responsible for the war or why war had been waged in the first place. All they had known was that there was an enemy. . . . Instead, they would have questions about the future society. For example: “Will God forgive me?” or “I killed during the war; who is to be blamed, the commander who told me to do so, or I personally?” [with a faint smile] For me it was not always easy to answer questions like these with the soldier to my left and the commander to the right. Often my answers would have a “spiritual dynamic.” I would, for example, say: we will go on a path with God and only he can say. . . . (R6).

The father explained that the primary lemmas used during the meetings were “Our Friendship and the Road of Reconciliation,” as well as “Reconciliation and Forgiveness.” These slogans would typically be on banners in the army barracks, churches, prisons, or under a large mango tree where the ceremonies were held. R6 described the meetings as pastoral work for soldiers: “In these meetings dialogue is important: the dialogue between the soldier, me and God. . . . Reconciliation is about staying in peace with God.” During these meetings over 20,000 simple versions of the Bible were distributed. Typically, every participant received a rosary, a pen—​“your new instrument of peace”—​and small wooden crosses—​“the cement of reconciliation” (R6). As depicted on the thousands of pictures that Father Benedicto shared with me, the meetings would normally end with soldiers stepping forward and kneeling before the priest, being granted absolution. The Angolan government was not in any way promoting or funding these meetings. The Father arranged everything himself with the assistance of the church. For obvious reasons, these meetings would not have happened without the army’s approval. Father Benedicto published his personal accounts in a 650-​page book The Seven Paths to Reconciliation (Sanchéz, 2008). For the price of about 10 USD, 2,000 copies were sold, an astonishingly high number if one takes into account that this is a considerable amount of money for an Angolan rank-​and-​file soldier. In addition to these Christian rituals, Honwana (2005; 2006) and Comerford (2005) assert that also local community traditional leaders in rural areas have been organizing healing rituals for ex-​soldiers. Comerford (2005, p. 192), for example, asserts that traditional communities expected that all soldiers returning from war received treatment from the kimbanda, the principal practitioner of traditional healing methods. Similar to the Christian rituals exercised by Father Benedicto, Honwana (2006) describes that it was believed that individuals who killed or who saw people being killed, were “polluted by war”

790   Joris van Wijk and therefore were to be cleaned. Some communities organized cleansing and burial rituals, often focused on quieting the spirits of the dead ones. Based on the available academic literature and my own explorative fieldwork in Angola, it seems that apart from the granting of amnesty itself—​which the Angolan government understands to be a form of reconciliation—​and the Christian or traditional ceremonies to reconcile ex-​soldiers with God or the spirits of the dead, no significant interpersonal or intergroup strategies have been deployed to reconcile former warring parties or former perpetrators and civilian victims. Although most of my respondents argued there is no need to further dig into the past, others pointed out that below the surface, there is still much pain and sorrow on the individual level, as well as antagonism on an intergroup level: UNITA forced civilians to go into the forest, using them as a human shield. My niece, who was still a baby at the time, and her mother were forced to join. An aerial bomb decapacitated my niece’s mother, while she was carrying my niece strapped to the back. The mother’s corpse with the baby still alive and strapped to it, lay there for a long time. My niece grew up to become a woman and she obviously knows this tale. What does this mean for her? Who can she talk to . . . ? We hardly really talk about these issues in the family. . . . And mind you; there are also families who literally lost everything because of one of the parties. They still want revenge, but where can they go with their anger? (R30)

R38 emphasized that after the war, division in villages continues to exist to this very day. As discussed earlier, civilians typically had no strong ideological ties to the fighting parties. However, there were certainly also families who—​often after years of having been dominated by one of the parties—​had become supportive of either party. When IDPs returned, it was decided that MPLA supporters would live on one side of the pathway, while UNITA supporters would live on the other side. Two students, responding to my question if they would in class know about the background of their fellow classmates, came up with a similar story: No, we don’t talk about who is from an MPLA or UNITA family. It is some sort of informal agreement not to do so. It can only cause problems. . . . (R35) But it is different in the villages. There we know. For example, the village I grew up in; on the one side of the river live the UNITA people, on the other side the MPLA. In the past there would also be different flags on both sides, now all that is there is the MPLA flag. You, as an outsider, would not notice anything about the division in the village. When there is a party, everyone will also be there. But mind you; if I would start dating a girl from the other side of the river I would have a problem. There is still division. (R36) And there are many villages like this. But we don’t talk about it; it is Pandora’s Box; you need to be careful. . . . (R35)

With hardly any actions taken to promote individual or intergroup reconciliation, and arguably still trauma and tensions being present in society, it is not surprising that in 2016 the Bertelsmann Stiftung’s Transformation Index (BTI) scored efforts to come to reconciliation in Angola with a 2 out of 10.49 49 The

Bertelsmann Stiftung’s Transformation Index analyzes and evaluates whether and how developing countries and countries in transition are steering social change toward democracy and a market economy. Bertelsmann (2016) Angola Country Report 2016, Bertelsmann Stiftung’s Transformation Index (BTI). Available at: https://​www.bti-​project.org/​en/​home/​ (Accessed June 9, 2019), p. 32.

War Crimes in Angola    791

7.  Reaction to the Crimes: Commemoration, Memorialization, and Education 7.1. Commemoration and memorialization Angola’s policy to forget about its violent past and focus on the future is perhaps best illustrated by the theme of the first museum that was constructed after the war: Museu da Moeda (the Museum of Coins). Centrally located on the famous seaside strip of the Marginal, this admission-​free museum next to the pastel-​pink buildings of the Central Bank, opened its doors in 2013 and tells the story of how money was introduced in Angola.50 Awkward as it may be, the first museum to open its doors after the Marxist-​rooted MPLA won a 35-​year civil war depicts the history of the most capitalist symbol one can think of. The glimmering museum is a stark contrast with the state of the Municipal Museum in Huambo—​the museum was closed when I tried to visit it in 2018—​that once told the regional history of the province of Huambo that was hit hard during the war. The only tangible reminders of the violent past in this city are the bullet holes that still scar some of its high-​rise buildings. At a 5-​to 10-​minute walking distance from the Museum of Coins in Luanda, just opposite the headquarters of Angola’s mighty state-​owned oil company Sonangol, President Eduardo dos Santos in 2017 inaugurated the monument of the “Unknown Soldier,” which honors all soldiers who anonymously sacrificed their lives since the start of the independence war in 1961 until the end of the civil war in 2002. Four days later, the President was to open yet another memorial to honor fallen soldiers, this time in the southern provincial town Cuito Cuanavale, remembering the courage of those who halted the invasion of South African forces (backing the UNITA) during the infamous “Battle of Cuito Cuanavale” in 1987–​1988.51 Similar to many other post-​colonial African countries, the MPLA ruling party has adopted and instrumentalized national history in the form of memorials and commemorations that fit their political narrative.52 Commemorating the suffering of civilians during the civil war is clearly not part of this narrative. As Shubert explains: “MPLA’s post-​war master narrative conceals the post-​independence period of the conflict, by which the end of the war, in 2002, functions as ‘year zero’ of the independence of the country, delayed only by the [internal] conflict” (Shubert, 2015, p. 2). Commemorating soldiers who fought for independence—​ and after that against the “terrorists” of the UNITA—​fits this narrative, while memorializing the fate of civilian casualties does not. Up to this day, apart from a “Peace Arch” in Luena that commemorates the signing of the Memorandum, memorialization of the civil war, or even of the “conquest of peace,”

50 

For more details, see: http://​www.museudamoeda.bna.ao/​ao/​ (Accessed September 19, 2019). Journal de Angola (2017) “Monumento ao Soldado Desconhecido,” Jornal de Angola, September 23. Available at: http://​jornaldeangola.sapo.ao/​politica/​monumento_​ao_​soldado_​desconhecido (Accessed September 17, 2019). 52  For a discussion of this and other challenges of memorialization post-​atrocities see Chapter 31 by Nicole Fox in this volume. 51 

792   Joris van Wijk is noticeably absent or biased (Shubert, 2015, p. 14). Luanda’s famous bookstore Lello—​ once the meeting point of the cultural elite—​closed its doors in 2015. The bookstores I visited instead did not sell a single book about the Angolan civil war.53 In front of Lello’s empty building, street vendors, however, did sell surprisingly new-​looking graphic novels that celebrate the life of the MPLA co-​founder and Angola’s first President Augostinho Neto.54 In some of Luanda’s stationery stores, I found the freely distributed glossy magazine Todos, which translates as “Everyone.” This bilingual magazine (Portuguese and English) is published by the Angolan Sovereign Wealth Fund in a printed edition of 15,000 copies. Its April 2016 volume entitled “Obrigado!” (Thank you!) paid “a homage to all of those unknown heroes whose struggle in the past ensured the present and the future of the young generation.” In addition to positive stories of how ordinary civilians—​often with the help of the government or their family—​have overcome post-​war challenges, the magazine exclusively portrayed the sacrifices brought about by soldiers of the MPLA-​governed forces in fighting the Portuguese, without mentioning any role the FNLA or the UNITA played in the independence war. Notwithstanding the magazine’s name, it seems likely that some Angolans might not feel well represented.

7.2. Education The United Nations Educational, Scientific and Cultural Organization (UNESCO) stresses that memorialization of a violent past through education can promote a culture of peace and non-​violence, and foster reconciliation.55 However, if not well used, education can play a detrimental and negative role with regard to peacebuilding and reconciliation. Governments may intentionally manipulate teachers to shore up their power base, as happened, for instance, in the 1990s in Burundi.56 Particularly contentious is the question of how to teach history in post-​conflict societies. What to teach about war? What not to discuss? Which textbook to use? Who is to develop textbooks? (Korostelina & Lässig, 2013)

53  When I asked about books on the Angolan civil war, one of the vendors showed me a book about Njinga; Rainha de Angola, a mythical queen from the pre-​colonial era. When I specified the question, he suggested books about the Independence war, World War II and Germany, the History of Eastern Europe, and a manuscript by Machiavelli. 54  Fundação Dr. Antónia Augostinho Neto, which was published in 2016 and printed in 10,000 copies. In a series of four separate parts it tells the story of independence from the perspective of Neto. 55  UNESCO International Bureau of Education (2015) “Education for Peace: planning for curriculum reform, United Nations Educational, Scientific and Cultural Organization.” ED/​TLC/​GCE/​2015/​02. Available at: http://​unesdoc.unesco.org/​images/​0023/​002336/​233601e.pdf (Accessed August 18, 2019). By focusing on core values such as empathy for other human beings and respect for human dignity, together with core life skills such as emotional awareness and inter‐personal skills such as communication and problem‐solving, it is argued that students can be empowered to end violence and injustice and create a culture of peace. 56 Save the Children (2008) Where Peace Begins; Education’s Role in Conflict Prevention and Peacebuilding. Available at: https://​resourcecentre.savethechildren.net/​library/​where-​peace-​begins-​ educations-​role-​conflict-​prevention-​and-​peacebuilding (Accessed September 17, 2019), p. 14.

War Crimes in Angola    793 An analysis of the Angolan school curriculum—​including an analysis of the history books published under state auspices—​reveals that high school students are taught about the civil war, but to a limited extent. Only in their last year, some 30 pages in their history book is dedicated to the civil war (Fernandes & Capumba, 2006, pp. 59–​81), covering roughly the Cold War context, the involvement of foreign actors, the war’s main characters and parties, and the various efforts to come to peace agreements. Central in the narrative is MPLA accomplishments. Several authors observed this before, leading Shubert (2015) to argue that the curriculum overemphasizes MPLA’s role in the independence war and presents the civil war as a continuation of that independence war. Referring to the history curriculum as “the chilling manipulation of children’s education,” Marques de Morais (2017, p. 47) claims that state propaganda has been targeting all age groups, children included, while Pearce (2015) asserts that school syllabuses present the MPLA as the embodiment of the Angolan nation and the UNITA as a reactionary, counter-​revolutionary, and neo-​ colonial force. In doing so, Pearce argues, it undermines the legitimacy of the UNITA or any movement other than the MPLA. With these narratives, “the party continued to defend the integrity of the nation against a threat of destruction by malign foreign forces and their proxy, UNITA” (Pearce, 2015b, p. 108). History schoolbooks do not provide any information about any of the atrocities committed, the nature of these atrocities (e.g., killing, looting, recruitment of child soldiers), or the consequences of the atrocities (e.g., the number of victims, IDPs, and refugees). A history teacher (R29) supported the fact that the horrors of war were not part of the curriculum: “In particular in the years when the conflict was just over, many children were orphans or had lost a parent or brother in the war.” Insinuating that discussing the violent past would frustrate the re-​integration of children in society, he asked: “What would happen if you teach them in class about all the atrocities that happened?” Educational expert professor Augusto Ezequiel Afonso (R34),57 however, during a 2018 conference on the construction of peace and justice in Angola,58 explicitly called to include more details about the atrocities committed during Angola’s war in the high school curriculum, stressing that “only those who know what thirst is, can fully appreciate water.” Some high school students I talked to also felt that they could and should have learned more about the civil war in school. R16, with some bemusement, said: “We learn everything about France and the Netherlands, with which ships they used to travel to Africa in the Colonial years. We learn about Africa, about the world, but our own civil war, we hardly learn a thing.” Another young man (R18) said: “We talked about the Second World War, the Colonial War, but never about the War of the Brothers” Two other students (R14, R15) remember their time in high school: “When you asked questions about the war, you would get an answer like ‘Oh, you are still you. It is really complex, when you are older, you will get to know more about it.’ ” Various respondents (R10, R21, R22), history teachers included, said that it depends on the teaching staff how much and what kind of information about the civil war is discussed

57 

Educational expert at the Departamento de Ciências da Educação no Instituto Superior de Ciências de Educação (ISCED), Universidade Katyavala Bwila in Benguela. 58  “The Construction of Peace and Justice.” Universidade Katyavala Bwila, Benguela, October 1–​ 2, 2018.

794   Joris van Wijk in class. R11, for example, stressed that in the cities teachers might feel more free to give additional information: People in the interior are more afraid. Here in Luanda you can find critical teachers who speak a bit about politics in class with students, they can criticize things which might not go well, but in the interior it is very hard to find teachers who have the courage to speak openly about the situation. The directors of public schools are MPLA appointed. The far majority holds MPLA membership and it means that they follow the MPLA narrative. . . . History is written by the winners. . . . (R11)

With no museums presenting information about the civil war, memorials only celebrating fallen soldiers in the battle for independence or preventing the UNITA-​supporting South African forces from intervening, and history books and teachers providing a limited and/​or biased version of history, a final source of information Angolan youth interested in the civil war may resort to—​apart from the internet—​are (illegal copies of) the computer game “Call of Duty: Black Ops II.” In the world’s bestselling game produced in 2015, the player must aid Jonas Savimbi’s UNITA to fight the MPLA in a 1980s setting (Stuart, 2016).59

8.  Conclusion: Atrocity Crimes and Their Aftermath: The Angolan Approach In the introduction to this chapter I expressed that a Handbook on Atrocity Crimes deserves a chapter on Angola. Not because the case of Angola is in all aspects unique; there are numerous other examples of long-​lasting proxy wars in sub-​Saharan Africa. There are also numerous other conflicts characterized by a similar nature and scale of atrocity crimes being committed: extensive pillaging, summary executions, sexual violence, recruitment of child soldiers, to name a few. And indeed, there are many other countries that responded with a “culture of silence” (Redvers, 2015) in the aftermath of large-​scale atrocities. However, the domestic and international responses to the blanket amnesty, the way in which the authoritarian MPLA government has led the country since the end of the war, and the Angolan approach to, and experiences with, reconciliation are rather exceptional and deserve further attention. The Angolan government’s post-​conflict approach is a textbook example of what political scientists would refer to as illiberal peacebuilding. The high oil prices and China’s eagerness to provide funds in exchange for oil immediately after the war tamed Western calls for, for example, more democratization, economic reform, and anti-​corruption activities

59 Wielding

a grenade launcher, Savimbi leads his troops shouting “fight, my brothers.” Three of Savimbi’s children living in France complained that this game (too) does not provide an accurate representation of reality. In 2016 they sued the producer, their lawyer claiming that Savimbi was presented as a “big halfwit who wants to kill everybody,” while he in fact was a “political leader and strategist” (Stuart, 2016). Because of procedural flaws and jurisdictional issues, the case was rejected. BBC (2016) “Angolan Rebel Jonas Savimbi’s Family Lose Call of Duty Case.” BBC News, March 24. Available at: https://​www.bbc.com/​news/​world-​africa-​35894116 (Accessed September 17, 2019).

War Crimes in Angola    795 vis-​à-​vis the Angolan regime. This gave the MPLA a degree of autonomy from both external and internal (non-​elite) pressures almost unique in contemporary African states (Soares de Oliveira 2016, p. 79). It can explain why Angola’s post-​conflict reconstruction has hardly been shaped by the wishes or demands of international donors or NGOs. In addition to sincere beliefs that calls for prosecution could destabilize the fragile peace agreement, vested corporate interests have likely impacted Western governments’ stance toward the de facto and de jure impunity with regard to atrocity crimes. In the years following the peace agreement, very few countries were in a position to influence Angola’s government. Angola did not need the assistance of anyone. It was rather the other way around; with all of its natural resources, the world needed Angola (Van Wijk, 2012). As already mentioned, from 2001 to 2010 Angola had an average annual growth of 11.1 percent.60 That said, as argued by Soares de Oliveira (2016, p. 79), the era of MPLA hegemony is not without its accomplishments. It may be victors’ peace, but it has brought stability and has—​at least in economic terms—​proved relatively accommodating for the losers, provided they would not contest state authority. Given this relative success, it is remarkable that the Angolan case has so far received so little attention in the field of international criminal justice, transitional justice, or supranational criminology. In an earlier publication (Van Wijk, 2011), I argued that, among others, the relatively positive outcome of the Angolan peace process discredits the empty rhetoric of “human rights norms entrepreneurs” (Snyder & Vinjamuri, 2004, p. 8) that there can be no peace without justice. I coupled this with a call for more empirical research on the effects of amnesties in post-​conflict societies. Although recently a number of excellent studies on peacebuilding in Angola have been published,61 little to no specific attention is given to the question of why, how, and if indeed the granting of amnesty is to be assessed positively. This chapter could serve as a starting point for such future research. The specific background of the conflict (enmity between people was the consequence, rather than the cause of conflict) as well as the specific post-​conflict context (after an extremely long and brutal civil war, having an economic boom under an authoritarian leadership) could be some of the factors to take into account in such analyses. In addition, Angola’s approach to and experiences with reconciliation could be further explored. Academic literature on transitional justice and peacebuilding in Angola has so far dedicated only very limited attention to civilians’ perspectives on reconciliation and the role of the church—​with its own interpretation of what reconciliation constitutes—​in peacebuilding. Father Benedicto’s reconciliation ceremonies that have reached thousands of soldiers, for example, have so far not been discussed in academic literature. How important have such ceremonies been in terms of peacebuilding? Are victims aware of the existence of these ceremonies, and what is their view on this? How often, and in what context, have similar religious ceremonies been organized? Given the limited number of respondents approached for this study, the empirical findings presented in this chapter should be considered explorative in nature. More substantial empirical research on the issue will be welcome.62 60  Economist (2011) “Daily Chart; Africa’s Impressive Growth.” The Economist, January 6. Available at: https://​www.economist.com/​graphic-​detail/​2011/​01/​06/​africas-​impressive-​growth (Accessed September 17, 2019). 61  See for example Shubert (2015), Soares de Oliveira (2016), Pearce (2015b). 62  Philpott’s (2007) paper “Religion, Reconciliation, and Transitional Justice: The State of the Field” could be used as a starting point.

796   Joris van Wijk Lastly, it is important to stress that the processes of transitional justice are fluid and constantly evolving. When in 2015 oil prices dropped and the economy plummeted, people took to the streets and old MPLA-​versus-​UNITA sentiments came to the surface. UNITA politicians exposed a government plot to incriminate the organization in a “UNITA-​backed coup” with the active recruitment of former UNITA ex-​combatants (Roque, 2017). Such incidents obviously fuel animosity between the former warring parties. In 2018, however, most respondents I talked to were of the opinion that with the appointment of João Lourenço as the new President, public space opened up for more initiatives to reaching reconciliation. Illustrative in this regard was the fact that the Angolan government in 2018 promised to exhume the remains of Savimbi to allow the UNITA to rebury the corpse “with dignity.”63 Moreover, in December 2019 under Lourenço’s leadership, the Angolan government also started another initiative: the establishment of a “Reconciliation Plan in Memory of Victims of the Armed Conflicts in Angola.” Details about the execution of the plan are still unknown, but it is clear that after almost 20 years of silence about the violence, also in Angola, the first calls for truth-​seeking have started (Van Munster & Van Wijk 2020). Which path Angola will take in the future remains to be seen. For scholars interested in atrocity crimes and their aftermath, this should be enough reason to keep a close eye on Angola.

References Almeida, C., Sanches, E., and Rainmundo, F. (2010) “‘Bringing Fighters Together’: A Comparative Study of Peacebuilding and Transitional Justice in Angola and Mozambique Introduction: Conciliating Peacebuilding and Transitional Justice.” Conference paper. Available at: https://​www.researchgate.net/​publication/​271136424_​Bringing_​fighters_​ together_​A_​comparative_​study_​of_​peacebuilding_​and_​transitional_​justice_​in_​Angola_​ and_​Mozambique_​Introduction_​C onciliating_​peacebuilding_​and_​transitional_​justice (Accessed September 17, 2019). Andersen, V. (2011) Disarmament Demobilization and Reintegration (DDR) of Ex-​combatants in Angola; Why Did DDR Only Succeed in the Third and Last of the Three Peace Processes? Master;s thesis. University of Bergen. Available at: https://​www.researchgate.net/​ publication/​317357507_​Disarmament_​Demobilization_​and_​Reintegration_​DDR_​of_​ex-​ combatants_​in_​Angola_​Why_​did_​DDR_​only_​succeed_​in_​the_​third_​and_​last_​of_​the_​ three_​peace_​processes (Accessed September 17, 2019). Andresen Guimarães, F. (1998) The Origins of the Angolan Civil War: Foreign Intervention and Domestic Political Conflict. London: Palgrave/​McMillan.

63 

This has also been given a follow-​up: June 1, 2019, during a public ceremony thousands of former UNITA fighters wore white T-​shirts emblazoned with images of Savimbi during the reburial of Savimbi’s remains. BBC (2019) “Jonas Savimbi: Angola’s Former Unita Leader Reburied after 17 Years.” BBC News, June 1. Available at: https://​www.bbc.com/​news/​world-​africa-​48483246 (Accessed June 9, 2019); News24 (2018) “Angola to Exhume Body of Rebel Chief Savimbi for ‘Dignified’ Burial,” AFP, August 15, 2018. Available at: https://​www.news24.com/​Africa/​News/​angola-​to-​exhume-​body-​of-​rebel-​chief-​savimbi-​ for-​dignified-​burial-​20180815. (Accessed September 17, 2019).

War Crimes in Angola    797 Bolhuis, M.P., and Wijk, J. van (2015) “Alleged War Criminals in the Netherlands; Excluded from Refugee Protection, Wanted by the Prosecutor.” European Journal of Criminology 12(2), pp. 151–​168. Cilliers, J., and Dietrich, C. (2000) Angola’s War Economy: The Role of Oil and Diamonds. Pretoria: Institute for Security Studies. Comerford, M.G. (2005) The Peaceful Face of Angola: Biography of a Peace Process (1991 to 2002). Windhoek: John Meinert Printing. Doria, J. (2002) “Angola: a Case Study in the Challenges of Achieving Peace and the Question of Amnesty or Prosecution of War Crimes in Mixed Armed Conflicts.” In: Fisher, H., and McDonald, A. (eds.), Yearbook of International Humanitarian Law Volume 3. The Hague: TMC Asser Press, pp. 3–​60. Eisenhammer, S. (2017) “Angola’s Ruling MPLA Wins Election with 61 percent of Vote: Electoral Commission.” Reuters, September 6, 2017. Available at: https://​www.reuters.com/​ article/​us-​angola-​election/​angolas-​ruling-​mpla-​wins-​election-​with-​61-​percent-​of-​vote-​ electoral-​commission-​idUSKCN1BH2LR (Accessed September 17, 2019). Fernandes, P.F., and Capumba, P.A. (2006) Historia—​12a Classe, 2’ Ciclo do Ensino Secundário, Reforma Educativa. Luanda: Texto Editores. Foss, C. (2010) “Cuba’s African Adventure.” History Today 60(3). Available at: https://​ www.historytoday.com/​archive/​cubas-​african-​adventure (Accessed September 17, 2019). Gonçalves, J. (2017) “On Angola as a Battlefield.” Citizenship Studies 21(2), pp. 240–​254. Griffiths, A. (2004) “The End of the War; The Luena Memorandum of Understanding.” In: Meijer, G. (ed.) From Military Peace to Social Justice?: The Angolan Peace Process. London: Conciliation Resources “Accord,” pp. 24–​27. Heywood, L. (2011) “Angola and the Violent Years 1975–​2008: Civilian Casualties.” Portuguese Studies Review 19(1-​2), pp. 311–​332. Hodges, T. (2001) Angola, from Afro-​Stalinism to Petro-​dollar Capitalism. London: James Currey Ltd. Honwana, A. (2005) “Healing and Social Reintegration in Mozambique and Angola.” In: Elin Skaar, E., Gloppen, A., and Suhrke, A. (eds.) Roads to Reconciliation. Lanham, MD: Lexington Books, pp. 83–​100. Honwana, A. (2006) Child Soldiers in Africa. Philadelphia: University of Pennsylvania Press. Hoover, M.J. (1977) “The Laws of War and the Angolan Trial of Mercenaries: Death to the Dogs of War.” Case Western Reserve Journal of International Law 9(1), pp. 323–​406. Howe, H. (1998) “Private Security Forces and African Stability: The Case of Executive Outcomes.” The Journal of Modern African Studies 36(2), pp. 307–​331. Korostelina, K.V., and Lässig, S. (eds.) (2013) History Education and Post Conflict Reconciliation; Reconsidering Joint Textbook Projects. Oxon: Routledge. Lacina, B. (2009) “The PRIO Battle Deaths Dataset, 1946–​2008, Version 3.0, Documentation of Coding Decisions.” Oslo: International Peace Research Institute. Leitenberg, M. (2003) “Death in Wars and Conflicts between 1945 and 2000.” Peace Studies Program Occasional Paper #29. Ithaca, NY: Cornell University. Available at: https://​ www.clingendael.org/​ s ites/​ d efault/​ f iles/​ p dfs/ ​ 2 0060800_ ​ c dsp_ ​ o cc_ ​ l eitenberg.pdf. (Accessed September 17, 2019). Luso (2005) “Governo Apela à Tolerância nas Comemorações do Terceiro Ano de Paz.” Luso, April 4, 2005. Available at: http://​www.angonoticias.com/​Artigos/​item/​4388/​governo-​ apela-​a-​tolerancia-​nas-​comemoracoes-​do-​terceiro-​ano-​de-​paz. (Accessed September 17, 2019).

798   Joris van Wijk Malaquias, A. (2007) Rebels and Robbers; Violence in Post-​colonial Angola. Uppsala: The Nordic Africa Institute. Marques de Morais, R. (2015) “Coverage of Sect Tragedy Underlines How Far Angola Is from Press Freedom,” The Guardian, May 1. Available at: https://​www.theguardian.com/​global-​ development/​2015/​may/​01/​angolan-​s ect-​p olice-​ shootings-​world-​press-​f reedom-​ d ay (Accessed September 17, 2019). Marques de Morais, R. (2017) “Being the Big Man.” Index on Censorship 46(02), pp. 46–​48. McCants, A., and Mpani, G. (2008) “Angola.” In Norwegian Centre for Human Rights. Southern African Regional Mission Reports. Oslo: University of Oslo, pp. 11–​31. Available at: http://​www.ictj.org/​en/​news/​pubs/​index.html (Accessed September 17, 2019). Meijer, G. (ed.) (2004) “From Military Peace to Social Justice; The Angolan Peace Process.” Conciliation Resources, Accord 15. Available at: https://​www.c-​r.org/​downloads/​15_​ Angolan.pdf (Accessed August 18, 2019). Messiant, C. (2007) “The Mutations of Hegemonic Domination.” In: Chabal, P., and Vidal, N. (eds.) Angola: the Weight of History. London: Hurst, pp. 93–​123. Ojakorotu, V. (2011) “The Paradox of Terrorism, Armed Conflict and Natural Resources in Africa: An Analysis of Cabinda in Angola.” Perspectives on Terrorism 5(3-​4), pp. 96–​109. Oppong, J.R., and Kalipeni, E. (2005) “The Geography of Landmines and Implications for Health and Disease in Africa; a Political Ecology Approach.” Africa Today 52(1), pp. 3–​25. Pawson, L. (2014) In the Name of the People: Angola’s Forgotten Massacre. New York: I.B. Tauris. Pearce, J. (2002) “Going to the Border.” In: Coppé, M., and Power, F. (eds.) Stories for Trees. Luanda: Development Workshop, pp. 216–​228. Pearce, J. (2005) An Outbreak of Peace: Angola’s Situation of Confusion. Cape Town: David Phillip. Pearce, J. (2015a) Political Identity and Conflict in Central Angola, 1975–​2002. Cambridge: Cambridge University Press. Pearce, J. (2015b) “Contesting the Past in Angolan Politics.” Journal of Southern African Studies 41(1), pp. 103–​119. Péclard, D. (2008) “L’Angola Dans la Paix: Autoritarisme et Reconversions.” Politique Africaine 110, pp. 5–​20. Pedro, L.L.M. (2010) “The Ministry of Reconciliation in Angola.” The Review of Faith & International Affairs 8(1), pp. 63–​70. Philpott, D. (2007) “Religion, Reconciliation, and Transitional Justice: The State of the Field.” SSRC Working paper. Available at: https://​tif.ssrc.org/​wp-​content/​uploads/​2009/​09/​ Philpott-​2007_​final.pdf. (Accessed September 17, 2019). Porto, J.G, Alden, C., and Parsons, I. (2007) From Soldiers to Citizens. Demilitarization of Conflict and Society. Aldershot: Ashgate. Redvers, L. (2015) “Angola’s Fearful Culture of Silence.” Mail & Guardian, February 6, 2015. Available at: https://​mg.co.za/​article/​2015-​02-​05-​angolas-​fearful-​culture-​of-​silence (Accessed September 17, 2019). Robson, P., and Cain, A. (2006), “What to Do When the Fighting Stops (Challenges for Post-​conflict Reconstruction in Angola).” Occasional Paper No. 7, Development Workshop. Available at: https://​www.researchgate.net/​publication/​323696146_​What_​to_​do_​when_​ the_​fighting_​stops_​Challenges_​for_​post-​conflict_​reconstruction_​in_​Angola (Accessed September 17, 2019).

War Crimes in Angola    799 Roque, P.C. (2017) Reform or Unravel? Prospects for Angola’s Transition. Institute for Security Studies (ISS). Available at: https://​issafrica.org/​research/​southern-​africa-​report/​reform-​or-​ unravel-​prospects-​for-​angolas-​transition (Accessed September 17, 2019). Sanchéz, B. (2008) Os Sete Caminhos da Reconciliação, Malanje. Angola: Tu Makamba a Jezu. Silva, R. (2013) A Importância da Educação na Manutenção da Paz e Reconstrução de Angola. Dissertation. Universidade Autónoma de Lisbao. Shubert, J. (2015) “2002, Year Zero: History as Anti-​Politics in the ‘New Angola.’” Journal of Southern African Studies 41(4), pp. 1–​18. Soares de Oliveira, R. (2011) “Illiberal Peacebuilding in Angola.” Journal of Modern African Studies 49(2), pp. 287–​314. Soares de Oliveira, R. (2016) “The Struggle for the State and the Politics of Belonging in Contemporary Angola, 1975–​2015.” Social Dynamics 42(1), pp. 69–​84. Sousa, R.R.P. (2016) “Greed, Grievance, Leadership and External Interventions in the Initiation and Intensification of the Civil War in Angola.” Janus.net 7(1), pp. 73–​95. Stahn, C. (2002) “United Nations Peace-​Building, Amnesties and Alternative Forms of Justice: A Change in Practice?” International Review of the Red Cross 84(845), pp. 191–​205. Stuart, K. (2016) “Call of Duty Publisher Sued by Family of Angolan Rebel.” The Guardian, January 14. Available at: https://​www.theguardian.com/​technology/​2016/​jan/​14/​call-​of-​ duty-​publisher-​sued-​by-​family-​of-​angolan-​rebel. (Accessed September 17, 2019). Stojetz, W. (2016) War and Behavior, Evidence from Angolan Civil War Veterans. Dissertation. Humboldt-​ Universität Berlin. Available at: https://​edoc.hu-​berlin.de/​bitstream/​handle/​ 18452/​18403/​stojetz.pdf?sequence=1 (Accessed September 17, 2019). Tvedten, I. (2001) “Angola 2000/​2001; Key Development Issues and the Role of NGOs.” Bergen: Chr. Michelsen Institute Development Studies and Human Rights. Available at: https://​core.ac.uk/​download/​pdf/​59168199.pdf (Accessed September 17, 2019). van Munster, M. & van Wijk, J. (2020) “Angola: The pandora Box of ‘Embracing and Forgiving’,” Justiceinfo.net, January 14, 2020. Available at: https://​www.justiceinfo.net/​en/​ justiceinfo-​comment-​and-​debate/​opinion/​43523-​angola-​the-​pandora-​box-​of-​embracing-​ and-​forgiving.html (Accessed January 15, 2020). van Wijk, J. (2010) “Luanda-​Holanda; Irregular Migration from Angola to the Netherlands.” International Migration 48(2), pp. 1–​30. van Wijk, J. (2011) “Should We Ever Say Never?” In: Letschert, R., Haveman, R., de Brouwer, A., and Pemberton, A. (eds.) Victimological Approaches to International Crimes. Antwerp: Intersentia, pp. 289–​314. van Wijk, J. (2012) “Amnesty for War Crimes in Angola; Principled for a Day?” International Criminal Law Review 12(2), pp. 743–​761. Vines, A. (2018) “Lourenço’s First Year: Angola’s Transitional Politics.” Mail and Guardian, September 26. Available at: https://​mg.co.za/​article/​2018-​09-​26-​lourencos-​first-​year-​ angolas-​transitional-​politics. (Accessed August 18, 2019). Wessells, M.G. (2007) The Recruitment and Use of Girls in Armed Forces and Groups in Angola: Implications for Ethical Research and Reintegration. Report. Pittsburgh, PA: Ford Institute for Human Security. Ziemke, J. (2008) From Battles to Massacres. Dissertation. Madison: University of Wisconsin.

CHAPTER 33

War Crimes, At ro c i t i e s , and Resista nc e i n C ol ombia Oliver Kaplan 1 [W]‌e thought something very logical: that with 10 they could shoot us with no problem, but at 30 it would become a massacre, and therefore a different question. So we sent word to leaders from all parts, and we were 30. [The FARC leader] didn’t expect that large quantity of people. Local leader in Santander, Colombia (Sanz de Santamaría, 1989)

1. Introduction: Atrocities in Colombia in Comparative Perspective The Thousand Days War, La Violencia, the Patriotic Union Party, False Positives. El Aro, Chenque, Mapiripán, La Rochela, the Palace of Justice, El Trujillo, El Salado, Bojayá, El Nogal.2 The episodes and sites of atrocities in Colombia are myriad, especially for a country that has not experienced a formal genocide as recognized by scholars or the international legal bodies.3 The historical violence and atrocities experienced in Colombia have involved 1  My deep gratitude goes to Hollie Nyseth Brehm, Barbora Hola, Roxani Krystalli, and Erin McFee for helpful comments. All mistakes are my own. 2  Rutas del Conflicto (2020) “Data Journalism.” Available at: http://​rutasdelconflicto.com/​ (Accessed: February 20, 2020). 3  For instance, the Political Instability Task Force (PITF) only lists Colombia as a “revolutionary war,” not a “genocide.” Political Instability Task Force (PITF) Consolidated Problem Set version 2018. Available at: http://​www.systemicpeace.org/​inscr/​PITF%20Consolidated%20Case%20List%202018.pdf (Accessed: February 20, 2020). Colombia is not listed among the U.S. Holocaust Memorial Museum’s case studies of genocide, see https://​www.ushmm.org/​genocide-​prevention/​countries (Accessed: February 20, 2020).

802   Oliver Kaplan selective political violence, narco-​related violence, massacres, displacements, sexual violence, and torture. Yet different mass atrocity crimes have also occurred across recent decades (if not centuries) and across many parts of the country—​manifesting as both dispersed and localized. The severity of atrocities in Colombia has therefore at times been overlooked and not fully recognized according to legal standards. The atrocities have not been adequately situated in a comparative perspective relative to other countries’ rapid-​moving genocides or those involving international forces and institutions. Despite decades of violence, Colombia is not usually considered in texts on atrocities.4 Yet as this chapter makes clear, the country has experienced many types of violence, including war crimes and crimes against humanity such as persecution of social groups, which could potentially constitute genocide. This chapter seeks to provide a more complete presentation of this at-​times neglected history of mass atrocity crimes in Colombia. The recounting of Colombia’s history of atrocities could easily begin with the colonization of its native populations, the imposition of slavery, and the country’s slow and fragmented state-​building process which itself was rife with inequality and repression (González et al., 2003). While violence is not endemic across Colombian history—​as there have been substantial periods of political calm—​the country’s brutal formative period was a precursor to its more recent history of violence from the second half of the 20th century, which is the focus of this chapter. With armed conflicts of different natures originating from the late 1940s through the present day and involving widespread forced displacement, killings, kidnappings, death threats, and other harms, it is said that every Colombian has in some way been affected by war and related atrocities, whether directly or as a relative of a victim (an estimated 15–​20 percent of Colombians were somehow directly affected by the conflict).5 Atrocities have occurred across all corners of the country, including in both urban and rural areas, though the violence has been felt more prominently in rural areas (e.g., Romero, 2008). Explaining Colombia’s atrocities is also no simple matter and has lamentably become a field in itself. An early group of violence scholars, so large that they came to be collectively referred to as “violentologists,” proposed causes as wide-​ranging as social, cultural, economic, and political factors (Ferry, 2012; Cartagena Nuñez, 2013). However, a common, simple response from the average Colombian about the country’s armed conflict and violence is: “It’s complicated.” And rightly so. There have been so many different periods, regions, processes, actors, and dynamics of violence that Colombia’s armed conflict is akin to many countries and conflicts in one. This level and spread of violence—​encompassing war crimes and

4  A cursory search of books on genocides and mass killings reveals coverage of Colombia in some texts but not others (e.g., Colombia is omitted in Kiernan 2008, Spencer 2012, Bloxham and Moses 2013, but La Violencia is included in Valentino 2004). Other cases, such as the Rwandan Genocide, appear far more frequently. 5 As of access date, there are 8,847,047 total registered victims; Victims’ Unit (2020) “Unit for Comprehensive Care and reparation for Victims.” Available at: https://​www.unidadvictimas.gov.co/​ es/​registro-​unico-​de-​victimas-​ruv/​37394 (Accessed February 20, 2020); Centro Nacional de Memoria Histórica, Grupo de Memoria Histórica (2013) ¡Basta Ya! Colombia: Memorias de Guerra y Dignidad. Bogotá: Centro Nacional de Memoria Historica, Departmento para la Prosperidad Social, and Prosperidad para Todos (CNMH Report 2013).

War Crimes, Atrocities, and Resistance in Colombia    803 crimes against humanity—​is tragic and, over the years, represents more deaths than many genocides.6 However, Colombia’s past also offers lessons for how to cope with and overcome violence in both its own present-​day circumstances, as well as for other countries. Alongside Colombia’s atrocities and violence, there are also inspiring examples of resistance and renovation. This chapter recounts the approaches of both the government and civil society—​sometimes successful but not always—​to build resilience after past waves of violence and take bold actions to address new violent threats as they manifest. These inspirational stories are widespread. They suggest a pathway toward “never again” that goes beyond reliance on the responses of a state with limited reach. Indeed, Colombia’s appearance in a volume on mass atrocities should not overshadow the resiliency of its citizens and the normalization of conditions, despite some continuing public security challenges. The acts of resistance to war and the improved conditions in the wake of the peace agreement with the Revolutionary Armed Forces of Colombia (FARC) concluded in 2016 are helping Colombia to shed its past negative image and stereotypes. The chapter proceeds as follows. First, it reviews the types of atrocities and violence in Colombia. It then considers scholarship on violence and explanations for atrocities and violence. From there, it showcases the various forms of civil society responses and resistance to violence. It continues to describe the interactive processes of violence and responses in Colombia. The chapter concludes by contemplating the challenges and opportunities of the current period and those that lie ahead.

2.  Atrocity Crimes in Colombia: Causes, Patterns, and Actors Colombia has a long history of violence, from the Thousand Day War at the turn of the 20th century, to the mid-​century outburst of La Violencia in the 1950s, to the more recent wave of leftist insurgencies and drug-​related violence. Scholarly interpretations of the violence provide some insights about the conditions and motivations behind Colombia’s atrocities, putting them in context sub-​nationally—​across space and time—​and in comparison with other conflict-​affected countries. The violence features varying actors and repertoires of atrocities, including going beyond what most observers might traditionally consider as “atrocities.” Though Colombia is not often considered among genocide scholarship because violence was generally not intended to destroy an ethnic, national, racial, or religious group, patterns of violence have often amounted to war crimes and even crimes against humanity.7 6 

It has been estimated that 420,000 Colombians were killed since 1948, which represents more deaths than approximately three-​quarters of the cases of genocides and politicides identified by Harff (2003). Colombia has experienced more disappearances than the combined dictatorships of the southern cone countries. 7 See also International Criminal Court (2012) “Situation in Colombia Interim Report.” Office of the Prosecutor. Available at: https://​www.icc-​cpi.int/​NR/​rdonlyres/​3D3055BD-​16E2-​4C83-​BA85-​ 35BCFD2A7922/​285102/​OTPCOLOMBIAPublicInterimReportNovember2012.pdf (Accessed: February 22, 2020); See also Equipo Nizkor (2001) “Colombia Nunca Más: Crímenes de Lesa Humanidad (Zona 14a 1966, Tomo I).” Proyecto Nunca Más: Colombia. Though Forer (2010) argues that the concept is

804   Oliver Kaplan A comprehensive starting point for an informed conversation about past and recent patterns of violence in Colombia is the ¡Basta Ya! (“Enough Already!”) report published by the Colombian Center for Historical Memory (an autonomous institution established by the government), of which an English translation is available (Riaño Alcalá and Uribe, 2016).8 Through meticulous data compilation, the team of authors estimates the total number of victims due to armed conflict since the late 1940s at over 420,000 killed, with an estimated 220,000 killed from 1958 to 2012. Of these victims, 80 percent were unarmed civilians. The number of displaced persons has also been staggering and varyingly estimated at between 5.7 and 7 million people, which equals around 15 percent of the total Colombian population. Gender-​based and sexual violence has also been a feature of the conflict, as have forced disappearances and kidnappings. Comparative data helps put Colombia and its violent conflict in context. Colombia’s conflict severity falls in the upper-​middle range for countries in civil war in terms of indicators of killings. It is ranked high at 86 out of 114 conflicts for total battle deaths (among belligerents) and 68 out of 114 conflicts for total battle deaths per capita for conflicts from 1945 to 2002 (based on data from Lacina, 2006). However, after accounting for the conflict’s long duration, Colombia ranks lower for average annual battle deaths per capita, ranked at 30 out of 114 conflicts. Per these figures, although the reach of violence in Colombia has been broad and enduring, the case is neither the least nor most intense of conflicts (Kaplan, 2017a). Colombia would certainly rank as relatively more violent according to indicators of other lasting harms, such as large-​scale forced displacement and land dispossession. The geography of atrocities in Colombia has been widespread, but in some cases also focused in particular regions (Holmes et al., 2009; Steele, 2017). Many of these regions have suffered from historical state neglect and yet have also been contested by different armed actors for strategic reasons, including proximity to key cities, natural resources, or corridors connecting drug-​producing regions with the coast. The Middle Magdalena River9 valley was an early key focal point of guerrilla activity and military and paramilitary reprisals beginning in the 1970s. Shortly thereafter, various other regions were greatly affected as both the guerrilla and paramilitary groups expanded their areas of operations. The Urabá, Southern Bolívar, Macarena, Montes de María, and Catatumbo regions were some of the most ravaged by this contestation, as well as the departments (provinces) of Antioquia, Chocó, and Nariño, among many other areas. The fighting between different armed groups and the military, and the violence they perpetrated, grew to a crescendo around 2000 as also shown in Figure 33.1 depicting the national homicide rate in Colombia from 1945 until 2000. It gradually declined thereafter as the paramilitaries demobilized and the state forces professionalized and expanded their presence. Thousands of scholars and observers have sought to explain the patterns of atrocities in Colombia.10 The early group of Colombian “violentologist” scholars—​ primarily being inappropriately stretched in Colombia, in some instances leading to inaccurate legal analyses and trivialization of true crimes against humanity. 8 

CNMH Report 2013. south–​north river that flows from the heart of the country from southwest of the capital of Bogotá north to the Caribbean. 10  A search on WorldCat (https://​www.worldcat.org/​) for “Colombia” and “violence” or “violencia” yields thousands of book results. 9  The

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War Crimes, Atrocities, and Resistance in Colombia    805

Figure 33.1  Homicide Rate in Colombia 1945-​2000 Source: Fabio Sanchez (2007), Colombian National Department of Statistics and National Police

political analysts and historians—​contributed thoughtful treatises on the country’s governance challenges and threats of violence (e.g., Sánchez Gómez, 1990; Uribe, 1990; Pizarro Leongómez, 2004). But these were often limited to the extent that they offered primarily descriptive analyses. When some of these scholars did advance explanations for violent phenomena, they tended to be structural, static, or culturally oriented and not based on systematic and dynamic understandings of the empirical record (though many of these scholars revisited their earlier work in light of such critiques). For their part, many international scholars overlooked Colombia during the early decades of leftist insurgency as being politically distinct from other Latin American countries (exceptional as being both historically conservative and democratic). They either paid little attention or focused on national-​level politics rather than questions of the growing leftist insurgencies and associated civil war violence. In the 1990s and early 2000s, along with the escalation of fighting, a new wave of anthropologists, economists, political scientists, and sociologists focused their sights on the armed conflict (Sánchez Gómez, 1990; Uribe, 1990). These scholars benefited from a longer historical period for study and improved quantitative data on indicators of conflict and violence. The debates and insights coming out of academia during this period helped to empirically and systematically document the lived reality of Colombians. This was a counterweight to the rhetoric of some of Colombia’s political leaders, who at times proposed misleading characterizations of the nature of the fighting and violence, even denying the use of the phrase “armed conflict” to minimize the perceived severity of the problem or to deny political status to non-​state actors. In response to this linguistic jiu-​jitsu by officials, scholars continued studying the pressing problems of violent conflict, even if it was a “war without a name,” as one volume was so pointedly titled (Wills et al., 2006). Because of the multiplicity of actors, regions, drivers, and dynamics, many explanations for violence have been offered and assessed (González et al., 2003). Some have pointed

806   Oliver Kaplan to Colombia’s context of having a historically weak state with limited reach to and legitimacy in the countryside (Bushnell, 1993; Palacios, 2006), with weak justice institutions and low levels of accountability. Others have identified contestation by armed actors (Sánchez Torres, 2007; Kaplan, 2017a) and land inequality (Zamosc, 1986; Albertus and Kaplan, 2013) as drivers of conflict and violence. Violence has also been targeted to influence electoral politics and suppress leftist political and social movements (Ramírez, 2011). The illicit economic activities in the country, including drug production, illegal mining, et cetera, have also been seen as sources of sustenance for armed groups and providing motives for contestation over territory and populations (Richani, 2002). As explored in the next section, the presence of these drivers resulted in the spread of several forms of atrocity crimes, as well as local and international reactions. Finally, it should be noted that scholars themselves have not been immune to the violence. Many researchers and activists have taken great personal risks to help improve our understanding of the conflict, and some tragically gave their lives (McCann, 2000, p. xvii).

2.1. The actors: Victimizers and victims There are multiple actors implicated in atrocities in Colombia. Because of their contestation of the authority of the state, observers frequently point to Colombia’s guerrilla groups first as the actors most responsible for atrocities. The FARC, ELN, EPL, MAQL, M-​1911 are certainly responsible for their share of the violence, though less so than other actors, such as the paramilitary groups (Gutiérrez-​Sanín and Wood, 2017). The FARC grew to be Colombia’s largest rebel group after its early operations in the 1960s in the departments (provinces) of Tolima, Cauca, Meta, Huila, Caquetá, and Cundinamarca, as well as the Urabá and Middle Magdalena River regions. It grew to have a national presence in 1982 when the group added the “People’s Army” (FARC-​EP) to its name and renewed its goal of pressing the causes of marginalized peasants. It doubled the number of active fronts, reaching more than 16,000 fighters in 2000. The country’s other large guerrilla group, the National Liberation Army (ELN), formed in 1962, conducted its first military operations in 1965. The ELN was modeled after the Cuban Revolution and motivated by Liberation Theology to advocate for the poor and against imperialism and the country’s oligarchic class. It reached an estimated 4,500 fighters by 2000. The Popular Liberation Army, or EPL, was a smaller group that began with Maoist origins and rose to prominence in the 1980s. The M-​19, which took its name after the April 19, 1970 elections, was a smaller group organized around advocating for more democratic and inclusive politics. The group later became infamous for the attack it carried out on the Palace of Justice in central Bogotá in 1985. The ensuing military raid to retake the building left more than 100 killed. The M-​19, most EPL members, and the Indigenous Quintin Lame Armed Movement (MAQL) signed peace agreements and demobilized in 1990 and 1991, largely prior to when drug trafficking came to pervade the armed conflict.

11  These acronyms stand for the English-​ translated names of the Revolutionary Armed Forces of Colombia (FARC), National Liberation Army (ELN), Popular Liberation Army (EPL), Quintin Lame Armed Movement (MAQL), and the 19th of April Movement (M-​19).

War Crimes, Atrocities, and Resistance in Colombia    807 The state forces in Colombia have had mixed roles in the country’s atrocities. At its best, the military has been a key protector, pursuing other perpetrators of violence and bringing security to isolated and battered towns. Yet the army has at times had limited reach and, at its worst, has been seen by some as “one more actor in the violence” (Ladrón de Guevara, 1998). The public forces have been responsible for state-​perpetrated violence (Torres Sánchez and Barrera Téllez, 1982) and colluding with non-​state armed groups with both counterinsurgent and profit motives. Although frequently denied by state officials, some members of the public forces have been accused of complicity with drug traffickers and paramilitaries, some of whom shared their counterinsurgent goals (Richani, 2002). Contubernio, or complicity between the military and paramilitaries (literally “to be in bed with”), has been documented at the highest levels of government.12 However, the Colombian military also professionalized over time and improved its capacity and behavior, including through increased training on human rights and international humanitarian law. Yet even throughout the years of the U.S. foreign aid program known as Plan Colombia, the military was implicated in numerous harmful practices, acts, and even atrocity crimes (Lindsay-​ Poland, 2018). Paramilitarism emerged in the 1980s in Colombia in the form of early death squads organized by large landowners to combat the guerrillas and their kidnapping attempts. Groups such as the gruesomely and aptly named “Death to Kidnappers,” or MAS, formed in the Middle Magdalena River valley and had the support of both landowners and drug traffickers. In the 1990s, informant groups known as the Convivir were legalized and, though intended to remain unarmed, became a bridge between military forces and a new generation of paramilitary groups. Scattered paramilitary groups from around the country joined together to form the United Self-​Defense Forces of Colombia (AUC) as an umbrella paramilitary organization in April 1997 (Romero, 2003; Duncan 2006). With seven blocs (units), the Self-​Defense Forces of Córdoba and Urabá (ACCU) was the coordination hub of the union. By the time the AUC agreed to demobilize in 2006 after peace negotiations, it had grown to thirty-​seven blocs and was the largest non-​state armed actor in Colombia, with a total troop strength of 31,671 fighters. The AUC brought a reign of terror against the guerrilla groups, their real and even suspected supporters, as well as other civilians unfortunate enough to be in their path. The paramilitaries were later linked to some of Colombia’s highest political actors through the “para-​politics” scandal, illuminated in the Ralito Pact of July 23, 2001.13 Drug traffickers dealing in cocaine, marijuana, and heroine have also been responsible for their share of atrocities. The Medellín and Cali cartels became powerful violent actors in the 1980s and into the 1990s. There was competition and fighting between the cartels as well as confrontations between the cartels and the Colombian state, precipitating several horrific acts etched into the country’s collective memory (Henderson, 2015; Durán Martínez, 2017). Pablo Escobar, for instance, was known for hiring assassins (sicarios) and the use of car bombs. He even downed an Avianca passenger airliner in 1989, killing all 107 passengers. In more recent years, neo-​paramilitary criminal bands, often referred to as BaCrim (bandas

12 

VerdadAbierta.com (2012) “El Contubernio entre Rito Alejo del Rio y los Paramilitares.” August 25. “La Historia Detrás del ‘Pacto de Ralito’ ” (2010) Verdad Abierta, January 18. Available at: https://​ verdadabierta.com/​la-​historia-​detras-​del-​del-​pacto-​de-​ralito/​ (Accessed: February 20, 2020). 13 

808   Oliver Kaplan criminales), emerged after the demobilization of the AUC as either remobilized or newly mobilized groups. They continue to operate and target rural residents and social and political activists. Businesses and other entities designated as “third-​party” actors have also fed Colombia’s conflict dynamics. A recent analysis by Colombia’s Attorney General identified over 2,300 businesses and individuals as “financing and supporting” the armed conflict.14 Businesses have been accused of complicity in crimes against humanity for providing support to armed actors such as the Convivir informant groups and guerrilla and paramilitary groups that committed violence (Bonilla Mora, 2018). One prominent example of business involvement in the conflict is Chiquita Brands, which, through its local subsidiary, Banadex, provided payments and material support to the FARC guerrillas and later the AUC paramilitaries. In the province of Arauca, Occidental Petroleum displaced members of the U’wa Indigenous group from their lands with help from the military to build its oil pipeline (Montero and Whalen, 2002).

2.2. Main patterns of atrocities Massacres are perhaps the violent act that most closely evokes the notion of “mass atrocity.” Massacres are frequently defined by analysts in Colombia as consisting of four or more victims in a single event. There were 4,210 massacres with 24,447 victims from 1958 to 2018,15 with the victim counts of these events ranging from 4 to nearly 100 victims (with the higher victim-​count events being relatively rarer; Kaplan, 2017b).16 In some incidents, public forces were present at the scene of the massacres and did nothing to stop them (Rohter, 2000). The magnitudes of these massacres do not reach the horrific scale of events such as the genocide in Srebrenica, where an estimated 8,000 civilians were killed, yet they were nonetheless devastating for their communities. With bodies frequently dismembered and buried in mass graves or thrown in rivers, the phrase “NN,” or no nombre (no name) has been used to designate the many unidentified victims.17 In Bojayá, an Afro-​Colombian village in Chocó Department, 79 people were killed in 2002 when a FARC shell struck a church where civilians were sheltering inside during combat with the army (Semple, 2016). According to ¡Basta Ya!,18 though massacres garner broad news coverage, they are far less frequent than the modal smaller-​scale incidents of targeted, selective violence. 14 

Fiscalía General de la Nación (2019) “Fiscalía Concluye Estudio Sobre Terceros Civiles Vinculados al Conflicto Armado.” Bogota. Available at: https://​www.fiscalia.gov.co/​colombia/​noticias/​fiscalia-​ concluye-​estudio-​sobre-​terceros-​civiles-​vinculados-​al-​conflicto-​armado/​ (Accessed: February 22, 2020). 15  The 1,982 massacres perpetrated between 1980 and 2012 left 11,751 dead. Observatorio de Memoria y Conflicto (2019) “Infografias.” Available at: http://​centrodememoriahistorica.gov.co/​observatorio/​ infografias/​(Accessed: July 23, 2019). 16  El Salado in 2000 had 60 killed. Bojayá in 2002 had 79 killed (119 killed by another count) and 49 injured, and this lead to the displacement of 5,771 when a shell struck civilians sheltering in a church; see CNRR and Grupo de Memoria Histórica (2010) Bojayá: La Guerra Sin Limites. Bogotá. 17  Rutas del Conflicto (2020) “Data Journalism.” Available at: http://​rutasdelconflicto.com/​ (Accessed: February 20, 2020). 18  CNMH Report 2013.

War Crimes, Atrocities, and Resistance in Colombia    809 200,000 177,710

180,000 160,000 140,000 120,000 100,000 80,000 60,000 40,000 20,000 –

15,738

Sexual violence

24,447

Massacres

Selective violence

Figure 33.2  Frequencies of Types of Violence in Colombia (victims), 1958-​2018 Source: Centro de Memoria Histórica, calculations by the author

The prominence of selective violence—​a “high frequency but low intensity type of violence”—​is one reason why Colombia’s pattern of victimization has been characterized as not representing the classical conceptualization of “mass atrocities.”19 The sporadic nature of the violence as well as its invisibility, concealment, and silencing of survivors meant it tended to draw little attention on a national scale but had a high impact at the local level. There were an estimated 151,563 selective violence events from 1958-​2018 involving 177,710 victims (the form of violence suffered by nearly half of all victims who were killed).20 This violence was targeted based on an individual’s identity or political allegiances and determined to be linked to the armed conflict rather than common criminal motives (though this distinction is more challenging to make as many armed groups became more engaged in criminal activities). Several social sectors were the primary targets of this violence, including members of labor unions, as Colombia had the highest number of human rights violations against unionists in the world (Correa Montoya, 2007; Archila, 2012). Figure 33.2 depicts frequencies of types of violence in Colombia in the period between 1958 until 2018. Torture has also been rampantly used in Colombia’s armed conflict. Paramilitary training involved learning brutal techniques to torture civilians, and the Colombian Justice and

19 According

to ¡Basta Ya!, “While large-​scale massacres, terrorist attacks or the assassination of public figures were the most visible acts . . . they were far from being the most frequent or most lethal acts against civilians. Selective assassinations, forced disappearances, kidnappings and small massacres have prevailed in the violence of the armed conflict.” CNMH Report 2013, p. 48. 20  The 1,982 massacres perpetrated between 1980 and 2012 left 11,751 dead. Observatorio de Memoria y Conflicto (2019) “Infografías.” Available at: http://​centrodememoriahistorica.gov.co/​observatorio/​ infografias/​(Accessed: July 23, 2019).

810   Oliver Kaplan Peace Tribunal that was formed as part of the demobilization agreement with the AUC paramilitaries identified at least 25 different forms of torture used by the AUC self-​defense groups (Laverde Palma, 2016). Paramilitaries frequently decapitated civilian victims and sometimes even played soccer with their heads (one of the AUC’s commander’s nom de guerre was “Mochacabezas,” or “Headcutter”; Restrepo, 2013).21 They often used the particularly gruesome instrument of chainsaws to “quarter” victims and chop them into pieces in casas de pique, or “chop up houses”. This technique was also later used by the Islamic State in Iraq and Syria. They would mutilate their victims by cutting off their tongues or testicles (Wilkinson, 2011), and some paramilitaries also recounted acts of cannibalism and drinking the blood of their victims. For these reasons, the paramilitaries were characterized in the international media as “butchers” and “the largest threat to democracy.”22 Most victims of violence in Colombia will never be well documented because, like other countries with internal armed conflicts, there are many disappeared persons and a resulting undercount of victims (Lum et al., 2010; Albertus and Kaplan, 2013; Kaplan, 2017a). Colombia’s Center for Historical Memory (CMH) reports a total of 60,630 victims of forced disappearance in the past 45 years (1970–​2015). Most of these acts occurred in the late 1990s and early 2000s. In 52.4 percent of the cases, a responsible actor could not be identified, but of the remaining cases, 66 percent, or approximately two-​thirds, were presumed to be committed by paramilitary groups alone or paramilitary groups together with state agents (46.1 and 19.9 percent, respectively).23 Only 2 percent of victims later appeared alive. The CNMH report identifies three central motives behind the AUC’s use of disappearances: to punish and leave messages against political enemies, to generate general terror, and to hide their acts.24 Colombia has one of the highest levels of conflict-​related forced displacement in the world and has ranked second only to Syria in the number of internally displaced persons. Between 1996 and 2002, more than two million (2,014,893) civilians were forcibly displaced from their homes by a variety of armed actors.25 The guerrilla groups threatened and took

21 “Colombia’s Other Armies.” (1997) The Economist, November 27, 1997. Available at: https://​ www.economist.com/​the-​americas/​1997/​11/​27/​colombias-​other-​armies (Accessed: February 26, 2020). 22 “The Butchers Strike Back.” (1999) The Economist, January 14. Available at: https://​ www.economist.com/​the-​americas/​1999/​01/​14/​the-​butchers-​strike-​back (Accessed: February 20, 2020); “A Survey of Colombia: The Curse of the Vigilantes.” (2001) The Economist, April 19. Available at: https://​www.economist.com/​special-​report/​2001/​04/​21/​the-​curse-​of-​the-​vigilantes (Accessed: February 26, 2020). 23  The presumed actors are identified based on victim details as well as other available information related to particular cases. Centro Nacional de Memoria Histórica (2016) Hasta Encontrarlos: El Drama de la Desaparición Forzada en Colombia. Bogotá: Centro Nacional de Memoria Histórica. (Accessed: February 22, 2020), p. 77, 83, 85, 132, and 137 (CNMH Report 2016). 24  CNMH Report 2016, p. 129, 141, and 162. 25 Internal Displacement Monitoring Centre (IDMC) (2010) “Colombia Current IDP Figures”; United Nations High Commissioner for Refugees (UNHCR) (2014) “Syria Tops World List for Forcibly Displaced after Three Years of Conflict.” Available at:https://​www.unhcr.org/​afr/​news/​latest/​2014/​3/​ 5321cda59/​syria-​tops-​world-​list-​forcibly-​displaced-​three-​years-​conflict.html (Accessed: February 22, 2020); “Colombia, El Segundo País Con Más Desplazados: Ya Son Seis Millones.” (2015) El Espectador, December 2. Available at: https://​www.elespectador.com/​noticias/​politica/​colombia-​el-​segundo-​pais-​ mas-​desplazados-​ya-​son-​seis-​mi-​articulo-​603038 (Accessed: February 22, 2020).

War Crimes, Atrocities, and Resistance in Colombia    811 control of numerous towns, and the AUC paramilitaries used a “scorched-​earth” campaign to “clean” the countryside of any opposition or possible civilian support for the guerrillas.26 In many cases, forced displacement was also rooted in economic motives, such as “counter-​ reform” efforts to gain control of campesinos’ lands for productive projects (Richani, 2002). Because of the fear, many towns were completely abandoned and became “ghost towns,” such as Saiza in the province of Córdoba (bordering Apartadó), which was attacked by the AUC’s Bloque Bananero in 1999 (Sepulveda, 2004).27 Sexual violence was also committed in Colombia’s armed conflict, though less commonly than in other conflicts. There were 15,222 sexual violence events and 15,738 victims (1958–​2018),28 though relatively few such acts were committed by the state forces or guerrilla groups (although groups such as the FARC enforced abortions among the women in their ranks). The paramilitaries, by contrast, were by far the most prevalently implicated perpetrators of rape and sexual violence against civilians, especially against women.29 The Attorney General (Fiscalía) identified the ACCU paramilitary bloc of the AUC as having the highest number of investigations for sexual abuse, with most occurring between 1996 and 2003.30 The AUC paramilitaries also carried out a campaign of “social cleansing.” Referring to vulnerable populations as “desechables” or “disposable” people, they turned their violence against individuals perceived as socially undesirable. They targeted unarmed civilians, including suspected criminals, the disabled, members of the LGBTI community, the homeless, and drug addicts.31

26 

CNMH Report 2013. “42 Pueblos Fantasmas.” (2001) El Tiempo, September 30. Available at: https://​www.eltiempo.com/​ archivo/​documento/​MAM-​667813 (Accessed: February 22, 2020); Centro Nacional de Memoria Histórica (2015) Pueblos Arrasados: Memorias del Desplazamiento Forzado en El Castillo (Meta). Bogotá: CNMH—​ UARIV. (Accessed: February 22, 2020). 28  These include actions that cause physical harm or pain to women or individuals of non-​hegemonic gender identities and sexual orientations such as internal or external injuries, bleeding, burns, et cetera. The events of sexual violence likely reflect an undercounting. Observatorio de Memoria y Conflicto (2019) “Infografías.” Available at: http://​centrodememoriahistorica.gov.co/​observatorio/​infografias/​ (Accessed: July 23, 2019). 29 CNMH Report 2013; Centro Nacional de Memoria Histórica, Grupo de Memoria Histórica (2011) Mujeres y Guerra: Víctimas y Resistentes en el Caribe Colombiano. Bogotá: Comisión Nacional de Reparación y Reconciliación–​Grupo de Memoria Histórica; Amnesty International (2004) “Colombia: Scarred Bodies, Hidden Crimes: Sexual Violence Against Women in the Armed Conflict.” AMR 23/​040/​ 2004, October 12, 2004; Centro Nacional de Memoria Histórica (2017) La Guerra Escrita en el Cuerpo. Bogotá: Centro Nacional de Memoria Histórica. (Accessed: February 22, 2020). 30  “El Expediente de Delitos Sexuales Cometidos por los Paramilitares.” (2013) El Tiempo, November 2. Available at: https://​www.eltiempo.com/​archivo/​documento/​CMS-​13158099 (Accessed: February 22, 2020). 31 Centro Nacional de Memoria Histórica (2015) Limpieza Social: Una Violencia Mal Nombrada. Bogotá D.C., Colombia: CNMH–​IEPRI.; Centro Nacional de Memoria Histórica (2015) Aniquilar la Diferencia: Lesbianas, gays, bisexuales y transgeneristas en el marco del conflicto armado colombiano. Bogotá D.C., Colombia: CNMH, UARIV, USAID, OIM. 27 

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2.3. Key atrocity episodes In addition to the general patterns of atrocities in Colombia, several key episodes of violence stand out as particularly egregious and with national impact (many of which are considered “emblematic cases” according to the Center on Historical Memory). A first landmark event was the period simply known as La Violencia, or “the violence,” a surprisingly little-​known conflict given its magnitude in which over 200,000 people were killed. This violence—​the most brutal conflict in the Western Hemisphere in the 20th century—​began with the assassination of the Liberal politician Jorge Eliécer Gaitán on April 9, 1948. The ensuing widespread riots in Bogotá, known as the Bogotazo, sparked partisan fighting which spread to large swaths of the country from 1948 to 1958 (Guzmán Campos, 1963; Roldán, 2002). The conflict has been characterized as neighbor-​against-​neighbor partisan vendettas between Liberals and Conservatives, which later degenerated into the terrorizing of peasants by local, clientelist armed bands tied to landholding bosses (gamonales). The violence was so gruesome that the different bands innovated their own macabre acts of torture and mutilation, leaving behind an entirely new lexicon of violence that included terms such as the “Colombian neck tie” (“corte corbata” or “corte mico,” a form of murder by slitting of the throat) (González-​Rodas, 1968; Uribe, 1990; Kirk, 2003). Some of the underlying political, developmental, and inclusion issues of this period were never fully resolved and La Violencia would be a specter of future bouts of atrocities to come. A significant future wave of violence would arrive in the form of the politicide of the Unión Patriótica, or the Patriotic Union Party (UP) from the mid-​1980s to the early 1990s. The UP was a leftist political party associated with the FARC. As a result of the FARC’s strategy of “All forms of struggle”—​simultaneously pursuing both armed insurgency and political activism—​peaceful politicians and activists came to be stigmatized as guerrilla supporters by counterinsurgent forces. Because of their exposure (and because of a lack of adherence to international humanitarian law’s principle of distinction), they became primary targets of the right-​wing paramilitaries and their political sponsors (Dudley, 2003). From 1984 to 1997, there were an estimated 1,598 UP victims, and because these individuals were political candidates, politicians, and activists, these killings are especially well documented (Romero Ospina, 2011). At the time, this wave of murders convinced the FARC of the folly of pursuing politics and to, therefore, continue the armed struggle. There is some controversy over the definition and use of the term “politicide” (Harff, 2003), both in general and in the UP case. Genocide scholar and proponent of the term R.J. Rummel (1994) himself defines the act as being conducted “by a government” and not, as in the UP case, by non-​state armed actors.32 Others scholars have applied the terms “politicide” or “genocide” to the UP case as useful analytical descriptors of the nature and classification of that wave of violence, and partly to raise the profile of the killings and support victims’ and activists’ quest for justice (Gómez-​Suárez, 2007; 2017; Romero Ospina, 2011). Regardless of such academic debates, the Colombian Attorney General identified the UP murders as a crime against humanity.33 Survivors also adopted the language of genocide, 32  According to Harff (2003), “In politicides, in contrast, groups are defined primarily in terms of their political opposition to the regime and dominant groups.” 33  “Declaran Delitos de Lesa Humanidad a 34 Casos de la UP.” (2014) Semana, October 20. Available at: https://​www.semana.com/​nacion/​articulo/​declaran-​delitos-​de-​lesa-​humanidad-​crimen-​de-​guerra-​ casos-​de-​la-​up/​406499-​3 (Accessed: February 22, 2020).

War Crimes, Atrocities, and Resistance in Colombia    813 carrying signs with statements such as “I am a survivor of the genocide against the UP” and “The genocide against the UP is a state crime.”34 Another form of atrocity in Colombia is “ethnocide,” the term some activists and observers have used to describe the perceived genocidal assault against and extinction of some Indigenous groups (Houghton and Villa, 2005). As the conflict intensified in the 1990s and illegal drug cultivation spread, war and violence pushed into Indigenous reserves (Forero, 2005; Romero, 2009). This put the Indigenous population at risk of both physical harm and cultural destruction in the form of loss of culture and identity. One of the most prominent applications of the term “ethnocide” is to the case of the Kankuamo group in the northern coastal Sierra Nevada de Santa Marta region, who bore the brunt of the paramilitary onslaught in the late 1990s and 2000s (Lemaitre and Sandvik, 2016). Another group, the Nukak Maku, Colombia’s remaining nomadic tribe in the Amazon region, has been pushed toward extinction by modernization pressures, the spread of diseases, and FARC incursions into their territory (Lloyd George, 2012). Most recently, there was the “False positives” scandal35 from the latter part of the presidency of Álvaro Uribe (2002–​2010) and into President Juan Manuel Santos’ term (2010–​2018). In several thousand incidents, state forces killed peasants and urban poor (predominantly male youths) and framed them as guerrilla casualties. They would dress them in military fatigues to increase the guerrilla body count for pay and vacation incentives, which the military promised for guerilla-​related casualties. Although these episodes have abated, even in 2019 there were moves within the military to return to the kinds of policies and rules of engagement that made the false positives possible (Casey, 2019), and at least some additional troubling incidents have occurred.36 The victimizers in Colombia have been responsible for widespread and diverse forms of atrocities. The violence was both ordered from the top down and initiated by rank-​and-​ file members of a variety of armed actors. The decentralization of violence and diverse motives and modes of violence in Colombia underscore why a lens exclusively focused on genocide can be problematic: it can draw attention away from smaller-​scale, precipitating acts of violence. These could constitute war crimes or crimes against humanity and, collectively, can be equally devastating as genocides or more temporally compressed atrocity events. Colombia’s atrocities have claimed many victims and are a call to look beyond solely event-​based notions of atrocities and to also include low-​level, slow-​burn processes. These atrocities have also generated many different reactions.

34 

CNMH Report 2013, p. 289. (2011) Colombia, Deuda con la Humanidad 2: 23 Años de Falsos Positivos (1988–​2011); Human Rights Watch (2015) On Their Watch: Evidence of Senior Army Officers’ Responsibility for False Positive Killings in Colombia. June 24, 2015. 36  For example, the case of the extra-​judicial killing of demobilized FARC combatant Dimar Torres Arévalo by Colombian military soldiers. See: UN News (2019) “Colombia: Rights Experts Condemn Killing of Reintegrated Former Rebel Fighter, Call for Respect of Peace Process.” Available at: https://​ news.un.org/​en/​story/​2019/​06/​1039781 (Accessed: February 22, 2020); United Nations Office of the High Commissioner for Human Rights (UNOHCHR) (2019) “Colombia: UN Experts Condemn Attacks on Reintegrated Former Combatants, Urge Respect for Peace Process.” Available at: https://​www.ohchr.org/​ EN/​NewsEvents/​Pages/​DisplayNews.aspx?NewsID=24673&LangID=E (Accessed: February 22, 2020); Guarnizo and Penagos, 2019. 35 CINEP

814   Oliver Kaplan

3.  Resisting Atrocities: Institutional and Community Reactions The atrocities in Colombia were not without responses to stem the violence. Although the government has at times been inconsistent in its efforts, neither it nor civil society actors have been complacent. In the wake of La Violencia, the government instituted the acción comunal program (communal action) beginning in 1960 to drive reconciliation at the local level, develop the countryside, and boost the social capacity of rural communities. As an early study observed, “the violence that tormented the nation during many years clearly demonstrated the need to change the situation that affected the local communities” (Triana y Atorveza, 1966). These community councils sought to restore harmony (convivencia) among communities that had been torn apart by the political strife of La Violencia. The councils’ connections with the government attenuated over time, but they continued to be key advocates for local communities as the conflict intensified over the following decades (Cubides, 2006; Kaplan, 2017a). In response to the worsening human security risks in the late 1980s and into the 1990s, the government also evolved in its institutional architecture to protect the population. It strengthened the role of the Attorney General (Fiscalía) to prosecute armed groups and criminal actors, and the Procuraduría (Ombudsman office) to oversee government institutions, including the public forces (military and police). The Defensoría (Human Rights Defender) was established in the 1991 constitutional reform which, alongside the municipal Personerías (1994) and the Human Rights Office of the Vice-​Presidency (now the High Advisory), works to protect citizens, coordinate early warning and responses, register acts of victimization, and advocate for human rights. The military developed the Gaula unit in the 1990s to counter extortion and kidnapping, and the Ministry of Interior’s Protection Unit was created to protect activists and political actors under threat. International actors have also played instrumental roles in documenting atrocities and advocating for protection and justice processes. The Inter-​American Commission and Court of Human Rights have provided constant monitoring of human rights conditions in Colombia, held numerous hearings, reached judicial decisions, and issued precautionary measures to protect threatened individuals and communities.37 In addition, national and international NGOs such as the Centro de Investigación y Educación Popular (CINEP), the Inter-​faith Commission for Peace and Justice, Human Rights Watch, Amnesty International, Peace Brigades International, Fellowship of Reconciliation, and numerous others have documented crimes and provided accompaniment by embedding human rights observers among vulnerable communities. In hopes of understanding and preventing violence in Colombia, scholars and analysts have first conducted interdisciplinary studies to assess the nature of atrocities. But beyond that, they have also generated insights about grassroots efforts to guard against atrocity risks. Much of this scholarship has been conducted by Colombian scholars themselves (e.g., Hernández Delgado, 2004; Sandoval, 2004; Sánchez Torres, 2007, among many others).

37 

CNMH Report 2013, Appendix.

War Crimes, Atrocities, and Resistance in Colombia    815 There have also been key contributions by and collaborations with international scholars and human rights workers (e.g., Tate 2007; Arias et al. 2017; Kaplan and Serna 2018). Across Colombia there have been many such social movements and protests to resist violence and war. These have ranged from national initiatives to nascent local organizing among a few households or a single village. Among the largest of the citizen-​led initiatives for peace was the 1998 Mandate for Peace, in which over 10 million Colombians from around the country symbolically voted to register their preference for a peaceful resolution of the conflict. These social movements have ebbed and flowed as responses to prior waves of conflict and bloodshed (García Durán, 2006). At the community level, Colombia’s Indigenous groups were some of the earliest populations to collectively resist violence. The Regional Indian Council of Cauca of the Nasa (Paez) community issued the Declaration of Ámbalo in 1985 to demand respect from the guerrillas and other armed groups (Houghton and Villa, 2005). Indigenous authorities and spiritual elders (shamans) have been identified as central actors for resisting violence and extinction as well as reclaiming indigenous culture (Kaplan, 2013c). Several indigenous communities, including the Nasa, have most potently organized nonviolent, unarmed Indigenous Guards who patrol communities and protect against violent actors (Sandoval Forero, 2008; Forero, 2005; Wirpsa et al., 2009). Other Colombians looked to the Indigenous groups for inspiration and also built from their own traditions of communal work (known as convite or minga) and conciliation to found local peace movements. Examples include the Peace Communities, humanitarian spaces, and resistance organizations of Afro-​Colombian communities, such as the far-​ reaching network of villages of the COCOMACIA peace organization.38 These movements have resisted forced displacement by organizing to return to and remain on their lands (Sanford, 2003; Sandoval, 2004; Hernández Delgado, 2004; Rettberg, 2006; Bouvier, 2009; Mitchell and Ramírez, 2009; Kaplan, 2013a; Idler et al., 2015; Masullo, 2015).39 The village junta councils and the more formal community peace movements developed institutions to innovate and implement non-​violent organizational and rhetorical strategies to confront or avoid armed actors and halt atrocities (Kaplan, 2013b; 2017a). By one estimate, well-​ organized towns (with high levels of junta councils) suffered on average twenty-​five percent less targeted (selective) political violence than less organized communities (Kaplan, 2017a). Colombians have not only resisted more selective forms of conflict-​related violence but have also resisted massacres targeting large numbers of people (Kaplan, 2017b). The degree of community organization embodied in the junta village councils also appears to have helped counter the stigmatization of civilians and limit the spread of the anti–​Patriotic Union Party (UP) political violence to the general population. Indigenous peoples organizing around traditional authorities have also helped limit links with armed actors and violent reprisals against those communities (Kaplan, 2013c).

38  ACIA (Asociación Campesina Integral del Atrato, Chocó), Consejo Comunitario Mayor, and Red de Solidaridad Social Presidencia de la República) (2002) Medio Atrato: Territorio de Vida. Quibdó: Red de Solidaridad Social. 39  Amnesty International (2000) Colombia: Return to Hope: Forcibly Displaced Communities of Urabá and Medio Atrato Region.

816   Oliver Kaplan Beyond the immediate pressures of the conflict, victim movements have also worked to recover historical memory and to fight for justice, respect for the deceased, and against forgetting. They have struggled for recognition and reparations benefits from an (at times) reluctant state (McFee, 2016). Complicating their efforts, there is also competition over conceptions of victimhood—​beyond being politicized as simply harmed beneficiaries, victims have also eviscerated the limited framings imposed upon them to underscore their agency, pushing back “against a framing of ‘victim’ as synonymous to passivity, vulnerability, or lack of agency” (Krystalli, 2018). Even with many victims still missing, family members continue the struggle to find their loved ones.40 As the search continues, and as the 2013 film Réquiem NN41 documents, the humanity and compassion of Colombians has been on display in their tending to the remains of victims—​even of strangers they have never met. Alongside the acts of resistance, Colombia has had a varied history of transitional justice processes to address the harms of the conflict. In the late 1980s and early 1990s, several of Colombia’s smaller armed groups negotiated peace agreements and demobilized. The M-​19 and EPL peace agreements provided for amnesty for fighters and rights to political participation (Villaraga Sarmiento, 2013). The negotiation process produced a constituent assembly and the 1991 constitution expanded rights protections. The National Rehabilitation Plan simultaneously aimed to improve living conditions in the countryside (from 1982 to 1994). The AUC negotiated an agreement with the government to demobilize its forces from 2003 to 2006 in exchange for legal benefits conferred by the Law of Justice and Peace42 (Morgenstein, 2008). The arrangement involved a truth-​telling component that provided amnesty for lower-​level fighters, as well as reduced prison sentences for paramilitary leaders who offered a complete accounting for their past crimes (with the paramilitaries hoping their leaders would avoid extradition to the United States on drug-​trafficking charges). Eligible paramilitary leaders were required to face their victims and offer depositions, known as “versiones libres.” Any leaders lying or hiding information would lose their eligibility for the special dispensation and would face ordinary criminal prosecution. In many cases, paramilitary leaders gave multiple depositions lasting days or months. Approximately 3,000 people, or 10 percent of the paramilitary forces entering into the demobilization programs, began the Law of Justice and Peace process. At the time of the Law of Justice and Peace in 2006, Colombia also established the National Commission on Reparation and Reconciliation (CNRR) with the support of the Organization of American States. This body monitored the paramilitary demobilization process and also performed some truth-​commission functions, such as collecting and publishing information on past episodes of conflict and atrocities. In 2011, the Victims

40  Centro

Nacional de Memoria Histórica (2016) Hasta Encontrarlos: El Drama de la Desaparición Forzada en Colombia. Bogotá: Centro Nacional de Memoria Histórica. (Accessed: February 22, 2020). 41  Réquiem NN. (2013) [Online] Directed by: Juan Manuel Echavarría. Colombia: Fundación Punto de Encuentro and Lulo Films. Available at: http://​www.requiemnnfilm.com/​view.html (Accessed: February 26, 2020). 42  Law 975 of 2005, Ley de Justicia y Paz, Colombia; see also Oficina Alto Comisionado para la Paz (2006) “Proceso de Paz con las Autodefensas: Informe Ejecutivo.” Presidencia de la República.

War Crimes, Atrocities, and Resistance in Colombia    817 Law43 converted the Historical Memory Group of the CNRR into the National Center for Historical Memory (CNMH). This center had a broader and enduring mandate to investigate and publish on historical conflict issues, victims, and resiliencies in the name of preserving historical memory. The 2016 agreement between the FARC and the government also provides for transitional justice mechanisms. Its terms were partially modeled on the Law of Justice and Peace and the CNMH but were adapted to the differing circumstances. It specifies graduated alternative penalties through the establishment of the Special Jurisdiction for Peace tribunal (Jurisdicción Especial para la Paz, or JEP in Spanish). The terms were partially designed to be punitive but are largely aimed at incentivizing truth-​telling about harmful acts that were committed during the conflict (Kaplan, 2015). Other countries, such as South Africa, have enacted similar alternative sentencing protocols. However, Colombia’s agreement, which negotiators designed based on much study such international examples, is particularly nuanced. Fighters fall into three categories, with three sentencing outcomes: those who did not commit severe crimes are eligible for amnesty; those who admit war crimes, crimes against humanity, or genocide, may serve alternative penalties, such as a maximum of eight years of community labor; and those who committed such atrocity crimes but cooperate “reluctantly” or do not offer full cooperation are to be punished in regular prison for a maximum of 20 years. It may not be the “maximum possible justice,” as Colombian President Juan Manuel Santos termed it,44 though perhaps it is the maximum that was “politically feasible.” When evaluated according to recent empirical cross-​national research on transitional justice (Olsen et al., 2010), the agreement with the FARC represents a “justice balance” with prospects to prevent conflict recurrence, future human rights abuses, and political repression. The tribunal and truth commission created by the agreement should help provide accountability, while amnesties for the rank and file combined with stiffer punishments for severe rights violators and commanders receive stiffer punishments should help provide stability. While those accused of crimes could simply feign contrition, which could make talk cheap, the hope is that admission of guilt in public and related possible shame will be an adequate substitute for harsher penalties. Since the agreement was signed, there have been several initial public hearings by the JEP tribunal (Symmes Cobb, 2018) where FARC leaders have acknowledged their roles in kidnappings45 and the former head of the military has been called to testify about false positives.46 The JEP also received cases of members of the FARC who were themselves victims of sexual violence within the group (Zulver, 2020), and the Constitutional Court recognized the standing of these victims

43 

Law 1448 of 2011, Victims and Land Restitution Law, Colombia. J.M. (2015) “Colombia Signs Peace Agreement with Rebels.” Interviewed by Bennet, E. CNN, September 24. Available at: http://​www.cnn.com/​TRANSCRIPTS/​1509/​24/​cnr.18.html (Accessed: February 22, 2020). 45 “Al Menos 522 Personas Secuestradas por Farc Murieron en Cautiverio.” (2019) El Tiempo September 23. Available at: https://​www.eltiempo.com/​justicia/​jep-​colombia/​audiencia-​en-​la-​jep-​ contra-​los-​exjefes-​de-​las-​farc-​por-​secuestro-​415408 (Accessed: February 26, 2020). 46  “Mario Montoya se Reservó su Derecho a Guardar Silencio ante la JEP.” (2020) El Tiempo, February 13. Available at: https://​www.eltiempo.com/​justicia/​jep-​colombia/​mario-​montoya-​se-​reservo-​su-​derecho-​a​guardar-​silencio-​ante-​la-​jep-​46156 (Accessed: February 22, 2020). 44  Santos,

818   Oliver Kaplan to be included in the government’s Victims Registry to be considered for reparations benefits. As Colombia is a party to the Rome Statute and thus a member of the International Criminal Court (ICC), the government negotiating team went to great efforts to ensure that the agreement’s terms complied with the Rome Statute. While Fatou Bensouda, the Prosecutor of the ICC, initially applied pressure in a 2013 letter informing the Colombian government that suspended sentences for crimes against humanity would be insufficient, she later supported the justice terms. She noted with “optimism” that “the agreement excludes the granting of any amnesty for war crimes and crimes against humanity under the Rome Statute.”47 Yet other national and international actors still felt the punishments in the agreement for both state and non-​state armed actors did not go far enough. A large proportion of Colombians have felt that requiring prison terms must be part of the peace agreement (Matanock and García-​Sánchez, 2017). In the international community, the NGO Human Rights Watch (HRW) came out especially vocally against the justice terms that were negotiated. Americas Director José Miguel Vivanco argued that the agreement ensures “[the FARC] will not face any remotely serious form of punishment.”48 In doing so, HRW became a strange bedfellow with former president Álvaro Uribe and conservative opponents to the deal. The agreement also set up a Commission for the Clarification of Truth, Coexistence, and No Repetition (La Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición, or CEV in Spanish) to reconstruct the history of the conflict and related rights violations, operating in parallel to the CNMH.49 The CEV was legally authorized in 2017, though only officially began its three-​year mandate in November 2018. Led by the Jesuit priest Francisco de Roux, S.J. along with 10 other commissioners, the CEV receives testimonies of victims and victimizers of both the FARC and government forces. The government’s Victims Unit, originally founded by the 2011 Victims Law, complements the truth process. It has continued to process victims’ claims for “holistic” reparations in the form of cash payments, rights to land, and access to other state services.50 The Victims Unit also carries out collective reparation initiatives, such as educational benefits or symbolic public works for ethnic minority groups and other communities affected by the armed conflict.51

47 “Statement of ICC Prosecutor, Fatou Bensouda, on the Conclusion of the Peace Negotiations Between the Government of Colombia and the Revolutionary Armed Forces of Colombia–​People’s Army.” International Criminal Court. 1 September 2006. Available at: https://​www.icc-​cpi.int/​Pages/​ item.aspx?name=160901-​otp-​stat-​colombia. (Accessed: February 22, 2020). 48  Human Rights Watch (2015) Colombia: Agreeing to Impunity, Government, FARC Deal Sacrifices Victims’ Rights to Justice. Available here: https://​www.hrw.org/​news/​2015/​12/​22/​colombia-​agreeing-​ impunity (Accessed February 26, 2020). 49  Comisión de la Verdad y Reconciliación (2017) “Comisión de la Verdad y Reconciliación.” Available at: https://​comisiondelaverdad.co/​la-​comision/​mandato-​y-​funciones (Accessed: December 2, 2019). 50  “En Ochos Años no se Alcanzó al Millón de Víctimas Reparadas.” (2019) Caracol Radio, June 10. Available at: https://​caracol.com.co/​radio/​2019/​06/​10/​nacional/​1560146523_​931121.html (Accessed: February 23, 2020). 51  International Migration Organization (2012) Del Daño a la Reparación Colectiva: La Experiencia de 7 Casos Emblemáticos. Bogotá.

War Crimes, Atrocities, and Resistance in Colombia    819 Colombian activists, through their steadfastness and ingenuity in the face of adversity, have developed lessons for the world to follow. However, these lessons have so far not sufficiently traveled to other settings. Activists in conflict-​affected countries—​and those supporting them—​should consider whether and how to apply and adapt the models and insights from Colombia. At the same time, scholars should broaden the focus of their studies of wartime resistance to violence in contexts beyond Colombia.

4.  Conclusion: Comparative Perspectives on Colombia’s Atrocities Colombia has unfortunately not been immune to wartime atrocities, including war crimes and crimes against humanity. These acts are a glaring part of the country’s recent history, though they have perhaps been overlooked internationally because they do not neatly fit into the conspicuous atrocity category of genocide. This chapter on Colombia has shined a new light on these events—​a light that has reflected back a broader approach for how atrocity scholars can conceptualize patterns of harm in protracted and lower-​intensity conflicts, which is the nature of many conflicts around the world today. The country is still confronting the legacies of these atrocities as well as ongoing risks. Today, there are renewed efforts to identify the disappeared, clear land mines, and return plots of land to victims of displacement, even while conflict continues and emergent groups are creating new victims. With so many past cycles of violence, “nunca más”—​never again—​can feel like an empty phrase and promise. But many Colombians, including those most affected by violence, have not yet relinquished hope. Residents of Bojayá, Chocó—​the victims of the worst attack of the war—​were staunchly and inspiringly in favor of the 2016 peace agreement, with 95 percent voting “Sí” in the referendum because they viewed it as an opportunity to move beyond war. Even though a sweeping peace agreement was signed between the government and the FARC in 2016, the post-​peace agreement period presents new risks of atrocities. Even after the FARC’s “leaving of arms” (disarmament) and “reincorporating” as a political movement, the International Committee of the Red Cross has still identified five active conflicts in the country.52 The power vacuum left by the FARC combined with the rise of reactionary forces to the peace agreement have triggered a spate of killings of “social leaders” and “human rights defenders,” perhaps constituting a new kind of politicide, defender-​cide, or other yet-​ to-​be-​defined “–​cides.”53 In the post-​agreement (not post-​conflict) period, there have been displacements and massacres, and some victims have been rethreatened and revictimized. Yet if the other side of Colombia’s history provides any instruction, those on the side of good, on the side of peace, will not “dar tregua”—​they will not give up. There have also

52  International Committee of the Red Cross (ICRC) (2019) “Retos Humanitarios 2019.” Available at: https://​www.icrc.org/​es/​document/​la-​situacion-​humanitaria-​en-​colombia-​se-​agravo-​en-​2018 (Accessed February 22, 2020). 53 The FARC has asserted that a new “genocide” is underway. Whether or not the rhetoric is exaggerated, the threats and harm are real (Sanders IV, 2016).

820   Oliver Kaplan been new outspoken movements and responses for protection, with several NGOs and mass movements rallying in defense of social activists. The Inter-​American Human Rights Commission and the UN offices in the country have taken these complaints extremely seriously and are exerting new pressure on the government to ensure it adequately addresses these atrocity risks. Civil society actors for their part have continued with their efforts to document harms and advocate for protection (Tate, 2007). Colombia’s atrocities call for an ongoing research agenda, as several topics are emerging or are already urgent. First, there is a need to study atrocities occurring in the current post-​ peace agreement period with an eye toward violence prevention. Second, there are pressing issues about how collective memories of atrocities are constructed, how victims assert their rights to recognition, and how they can be assisted in their recoveries. A third topic is the technical and social issues surrounding forensic anthropology and how it may shed light on past acts and help victims’ relatives gain a semblance of closure. Fourth, lessons from Colombia should be exported and applied elsewhere. Colombian scholars bring vital expertise, knowledge, and legitimacy to these efforts. Conversely, through their solidarity and partnership, international scholars also bring helpful external perspectives to Colombia that are a step removed from its national political debates. Colombia has long struggled with gathering and recording historical memory of violence, as well as how to create a dialogue about this sensitive topic in the public consciousness (Jaramillo Marín, 2014). This was true after La Violencia (Karl, 2017; Kaplan, 2017a) in the late 1950s and 1960s, and it continues to be true today. There remains a tension between respecting truth and memory and achieving justice, where the “truth,” or better put, “truths,” about past acts and atrocities are either seen as a threat to entrenched powerful actors or, alternatively, wielded to gain an advantage against political opponents. In the wake of the peace agreement with the FARC, there has been a renewed politicizing of the truth and the proliferation of contrasting truth institutions and historical analyses (Arley Bolaños, 2019). Yet understanding the truth of atrocities remains vital to work toward the principle of “never again.” It validates victims’ experiences and provides evidence for justice processes, wherever and whenever they may occur. Today the future of legitimate truth-​telling in Colombia, unfortunately, hangs by a thread. It is up to scholars, activists, and civil society to carry on where government institutions may falter. Hopefully, this chapter contributes, however slightly, to the battle against forgetting.

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War Crimes, Atrocities, and Resistance in Colombia    821 ​que-​recibe-​el-​nuevo-​director-​del-​centro-​nacional-​de-​memoria-​historica-​articulo-​857676 (Accessed: February 23, 2020). Bloxham, Donald and A. Dirk Moses, eds. (2013) The Oxford Handbook of Genocide Studies. Oxford, New York: Oxford University Press. Bonilla Mora, A. (2018) “Los Pagos que Chiquita Brands Habría Hecho a los Paramilitares.” El Espectador, September 1. Available at: https://​www.elespectador.com/​noticias/​judicial/​los-​ pagos-​que-​chiquita-​brands-​habria-​hecho-​los-​paramilitares-​articulo-​809622 (Accessed: February 23, 2020). Bouvier, V.M. (2009) Colombia: Building Peace in a Time of War. Washington, D.C.: USIP Press. Bushnell, D. (1993) The Making of Modern Colombia a Nation in Spite of Itself. Berkeley: University of California Press. Cartagena Núñez, L.C. (2013) “Intelectuales y Expertos: “Violentólogos” y Economistas en la Producción de Políticas Sociales y Económicas en Colombia.” Revista Reflexiones 92(2), pp. 123–​130. Casey, N. (2019) “Colombia Army’s New Orders Send Chills Down Ranks.” The New York Times, May 18. Available at: https://​www.nytimes.com/​2019/​05/​18/​world/​americas/​ colombian-​army-​killings.html (Accessed February 23. 2020). Correa Montoya, G. (2007) “2.515 or That Sinister Ease to Forget: 21 Years of Systematic and Selective Assassinations Against Colombian Unionists (1986–​2006),” Escuela Nacional Sindical Human and Labor Rights Unit, Medellín, Colombia, July 2007. Cubides C.F. (2006) “La Participación Política del Campesinado en el Contexto de la Guerra: El Caso Colombiano.” In La Construcción de la Democracia en el Campo Latinoamericano, Hubert C Grammont, ed. Buenos Aires: CLACSO, Consejo Latinoamericano de Ciencias Sociales, pp. 133–​158. Dudley, S. (2003) Walking Ghosts: Murder and Guerilla Politics in Colombia. Abingdon: Taylor & Francis, Inc. Duncan, G. (2006) Los Señores de la Guerra: De Paramilitares, Mafiosos y Autodefensas en Colombia. 1st ed. Bogotá: Planeta. Durán Martínez, A. (2017) The Politics of Drug Violence: Criminals, Cops and Politicians in Colombia and Mexico. Oxford: Oxford University Press. Ferry, S. (2012) Violentology: A Manual of the Colombian Conflict. Brooklyn: Umbrage. Forer, A. (2010) “Trivialización de los Crímenes de Lesa Humanidad en Colombia.” El Espectador, December 20. Available at: https://​www.elespectador.com/​opinion/​ trivializacion- ​ d e-​ l os-​ c rimenes-​ d e-​ l esa-​ humanidad- ​ e n- ​ c olombia- ​ c olumna- ​ 2 41488 (Accessed: February 23, 2020). Forero, J. (2005) “Colombia War Spills into Indians’ Peaceful World.” The New York Times, May 2. Available at: https://​www.nytimes.com/​2005/​05/​02/​world/​americas/​colombia-​war-​ spills-​into-​indians-​peaceful-​world.html (Accessed: February 23, 2020). García Durán, M. (2006) Movimiento por la Paz en Colombia. 1978–​2003. Bogotá: UNDP Colombia, CINEP, COLCIENCIAS Colombia. Gómez-​Suárez, A. (2007) “Perpetrator Blocs, Genocidal Mentalities and Geographies: The Destruction of the Unión Patriótica in Colombia and Its Lessons for Genocide Studies.” Journal of Genocide Research 9(4), pp. 637–​660. Gómez-​Suárez, A. (2017) Genocide, Geopolitics and Transnational Networks: Contextualising the Destruction of the Unión Patriótica in Colombia. London: Routledge. González, F., Bolívar, I., and Vásquez, T. (2003) Violencia Política en Colombia: De la Nación Fragmentada a la Construcción del Estado. Bogotá: CINEP.

822   Oliver Kaplan González-​Rodas, P. (1968) “Léxico de La Violencia En Colombia.” Hispania 51(2), pp. 302–​309. Guarnizo, J. (2019) “’Mi Coronel, Ya lo Maté: El Grupo Whatsapp que Crearon para Asesinar a Dimar.” Semana, October 27. Available at: https://​especiales.semana.com/​el-​asesinato-​de-​ dimar-​torres/​segunda-​parte-​el-​grupo-​de-​whatsapp.html (Accessed: February 22, 2020). Gutiérrez-​Sanín, F., and Wood, E.J. (2017) “What Should We Mean by ‘Pattern of Political Violence’? Repertoire, Targeting, Frequency, and Technique.” Perspectives on Politics 15(1), pp. 20–​41. Guzmán Campos, G., Fals Borda, O., and Umaña Luna, E. (1963) La Violencia en Colombia, Estudio de un Proceso Social. Bogotá: Ediciones Tercer Mundo. Harff, B. (2003) “No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955.” American Political Science Review 97(1), pp. 57–​73. Henderson, J.D. (2015) Colombia’s Narcotics Nightmare: How the Drug Trade Destroyed Peace. Jefferson, NC: McFarland. Hernández Delgado, E. (2004) Resistencia Civil Artesana de Paz: Experiencias Indígenas, Afrodescendientes y Campesinas. Bógota: Editorial Pontificia Universidad Javeriana: SUIPPCOL. Holmes, J.S., Amin Gutiérrez de Piñeres, S., and Curtin, K.M. (2009) Guns, Drugs, and Development in Colombia. Austin: University of Texas Press. Houghton, J., and Villa, W. (2005) Los Territorios Indígenas Colombianos: Teorías y Prácticas. Bogotá: Centro de Cooperación al Indígena, CECOIN. Idler, A., Garrido, M.B., and Mouly, C. (2015) “Peace Territories in Colombia: Comparing Civil Resistance in Two War-​Torn Communities.” Journal of Peacebuilding & Development 10(3), pp. 1–​15. Jaramillo Marín, J. (2014) Pasados y Presentes de la Violencia en Colombia: Estudios sobre las Comisiones de Investigación (1958–​2011). Bogotá: Editorial Pontificia Universidad Javeriana. Kaplan, O. (2013a) “Protecting Civilians in Civil War: The Institution of the ATCC in Colombia.” Journal of Peace Research 50(3), pp. 351–​367. Kaplan, O. (2013b) “Nudging Armed Groups: How Civilians Transmit Norms of Protection.” Stability: International Journal of Security and Development 2(3), pp. 62. Kaplan, O. (2013c) “Shootings and Shamans: Indigenous Group Authority Structures and Civil War Violence in Colombia.” Working Paper (on file with the author). Kaplan, O. (2015) “Colombia: Never Again?” Political Violence at a Glance, September 29. Available at: http://​politicalviolenceataglance.org/​2015/​09/​29/​colombia-​never-​again/​ (Accessed: February 22, 2020). Kaplan, O. (2017a) Resisting War: How Communities Protect Themselves. Cambridge: Cambridge University Press. Kaplan, O. (2017b) “Can Civilian Nonviolent Action Deter Massacres?” Political Violence @ a Glance, September 26. Available at: http://​politicalviolenceataglance.org/​2017/​09/​26/​can-​ civilian-​nonviolent-​action-​deter-​massacres/​(Accessed February 22, 2020). Kaplan, O., and Serna, C. (2018) “Self-​Protection Strategies Are Key to Atrocity Prevention.” In: Atrocity Prevention and Peace Building: Key Insights and Lessons from a Global Consultation Convened. Peace Direct, pp. 21–​26. Karl, R. (2017) Forgotten Peace: Reform, Violence, and the Making of Contemporary Colombia. Berkeley: University of California Press. Kiernan, Ben (2008) Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur. New Haven: Yale University Press. Kirk, R. (2003) More Terrible than Death: Drugs, Violence, and America’s War in Colombia. New York: PublicAffairs.

War Crimes, Atrocities, and Resistance in Colombia    823 Krystalli, R. (2018) “Three Lessons from Victims’ Day in Colombia.” Political Violence @ a Glance, April 18. Available at: https://​politicalviolenceataglance.org/​2018/​04/​18/​three-​ lessons-​from-​victims-​day-​in-​colombia/​ (Accessed: February 22, 2020). Lacina, Bethany. (2006) “Explaining the Severity of Civil Wars.” The Journal of Conflict Resolution 50(2): 276–​89. Ladrón de Guevara, A.D. (1998) “El Ejército Colombiano: Un Actor Más de la Violencia.” In: Arocha Rodríguez, J. (ed.) Las Violencias: Inclusión Creciente. Santafé de Bogotá: Centro de Estudios Sociales Facultad de Ciencias Humanas Universidad Nacional, pp. 92–​120. Laverde Palma, J.D. (2016) “Manual de Tortura Paramilitar.” El Espectador, June 28. Available at: https://​www.elespectador.com/​noticias/​judicial/​manual-​de-​tortura-​paramilitar-​ articulo-​640252 (Accessed: February 22, 2020). Lemaitre, J., and Bergtora Sandvik, K. (2016) “Tailoring Protection of Civilians to State Capacity.” PRIO Policy Brief, 8. Oslo: PRIO. Lindsay-​Poland, J. (2018) Plan Colombia: U.S. Ally Atrocities and Community Activism. Durham, NC: Duke University Press. Lloyd George, W. (2012) “Colombia’s Nukak Maku Tribe Faces Extinction.” The Guardian, February 5. Available at: https://​www.theguardian.com/​world/​2012/​feb/​05/​colombia-​ nukak-​maku-​tribe-​extinction (Accessed: February 22, 2020). Lum, K., Price, M., Guberek, T., and Ball, P. (2010) “Measuring Elusive Populations with Bayesian Model Averaging for Multiple Systems Estimation: A Case Study on Lethal Violations in Casanare, 1998–​2007.” Statistics, Politics, and Policy 1(1), pp. 1–​26. Masullo, J. (2015) “The Power of Staying Put: Nonviolent Resistance against Armed Groups in Colombia.” International Center on Nonviolent Conflict. Matanock, A.M., and García-​Sánchez, M. (2017) “The Colombian Paradox: Peace Processes, Elite Divisions and Popular Plebiscites.” Daedalus 146(4), pp. 152–​166. McCann, K.D. (ed.) (2000) Handbook of Latin American Studies No. 57: Social Sciences. Austin: University of Texas Press. McFee, E. (2016) “The Contested Promise of Peace: Social Representations of Peace and the Posacuerdo Citizen-​Subject in Colombia.” Psychology & Society 8(2), pp. 8–​26. Montero, D., and Whalen, K. (2002) “Global Reach: U.S. Corporate Interests in Colombia.” PBS Frontline/​World. Available at: https://​www.pbs.org/​frontlineworld/​stories/​colombia/​ corporate.html (Accessed February 22, 2020). Morgenstein, J. (2008) “Consolidating Disarmament: Lessons from Colombia’s Reintegration Program for Demobilized Paramilitaries.” US Institute of Peace, Special Report no. 217. Olsen, T.D., Payne, L.A., and Reiter, A.G. (2010) “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy.” Human Rights Quarterly 32(4), pp. 980–​1007. Palacios, M. (2006) Between Legitimacy and Violence. Durham, NC: Duke University Press. Pizarro Leongómez, E. (2004) Una Democracia Asediada: Balance y Perspectivas del Conflicto Armado en Colombia. Bogotá: Editorial Norma. Ramírez, M.C. (2011) Between the Guerrillas and the State: The Cocalero Movement, Citizenship, and Identity in the Colombian Amazon. Durham, NC: Duke University Press. Mitchell, C. and Ramírez, S., and (2009) “Local Peace Communities in Colombia: An Initial Comparison of Three Cases.” In: Bouvier, V. (ed.) Colombia: Building Peace in a Time of War. Washington, D.C.: USIP Press, pp. 245–​270. Restrepo, J.D. (2013) “Álvaro Uribe, Entre las ‘Convivir’ y las AUC.” Semana, September 19. Available at: https://​www.semana.com/​opinion/​articulo/​alvaro-​uribe-​entre-​convivir-​las-​auc-​ opinion-​juan-​diego-​restrepo/​358144-​3 (Accessed: February 22, 2020).

824   Oliver Kaplan Rettberg, A. (2006) Buscar la Paz en Medio del Conflicto: Un Propósito Que no Da Tregua. Bogotá: Universidad de los Andes. Riaño Alcalá, P., and Uribe, M.V. (2016) “Constructing Memory Amidst War: The Historical Memory Group of Colombia.” International Journal of Transitional Justice 10(1), pp. 6–​24. Richani, N. (2002) Systems of Violence: The Political Economy of War and Peace in Colombia. Albany, NY: SUNY Press. Rohter, L. (2000) “Colombians Tell of Massacre, as Army Stood By.” The New York Times, July 14. Available at: https://​www.nytimes.com/​2000/​07/​14/​world/​colombians-​tell-​of-​massacre-​ as-​army-​stood-​by.html (Accessed: February 22, 2020). Roldán, M. (2002) Blood and Fire: La Violencia in Antioquia, Colombia, 1946–​1953. Durham, NC: Duke University Press. Romero, M. (2003) Paramilitares y Autodefensas, 1982–​2003. 1st ed. Bogotá, D.C.: Instituto de Estudios Políticos y Relaciones Internacionales, Universidad Nacional de Colombia: Editorial Planeta Colombiana. Romero, S. (2008) “Two Colombias, at War and at Peace.” The New York Times, September 7. Available at: https://​www.nytimes.com/​2008/​09/​07/​weekinreview/​07romero.html (Accessed: February 22, 2020). Romero, S. (2009) “Wider Drug War Threatens Colombian Indians.” The New York Times April 21. Available at: https://​www.nytimes.com/​2009/​04/​22/​world/​americas/​22colombia.html (Accessed: February 22, 2020). Romero Ospina, R. (2011) Unión Patriótica: Expedientes contra el olvido. Bogotá: Centro de Memoria, Paz y Reconciliación. Rummel, R.J. (1994) Death by Government. New Brunswick, NJ: Transaction Publishers. Sánchez, G., and Meertens, D. (2001) Bandits, Peasants, and Politics: The Case of “La Violencia” in Colombia. Austin: University of Texas Press. Sánchez Gómez, G. (1990) “Guerra y Política en la Sociedad Colombiana.” Análisis Político (11), pp. 7–​27. Sánchez Torres, F. (2007) Las Cuentas de la Violencia: Ensayos Económicos Sobre el Conflicto y el Crimen en Colombia. Bogotá: Grupo Editorial Norma: Universidad de los Andes, Facultad de Economía. Sanders IV, L. (2016) “‘A New Genocide’: Colombia’s Peace Deal Ushers in Fresh Violence.” DW, November 23. Available at: https://​p.dw.com/​p/​2T8J8 (Accessed: February 22, 2020). Sandoval, L. (2004) La Paz en Movimiento. Vol. 1 and 2. Bogotá: ISMAC. Sandoval Forero, E.A. (2008) La Guardia Indígena Nasa y El Arte de la Resistencia Pacífica. Bogotá: Ediciones Colección Étnica, Diálogos Interculturales, Fundación Hemera. Sanford, V. (2003) “Peacebuilding in a War Zone: The Case of Colombian Peace Communities.” International Peacekeeping 10(2), pp. 107–​118. Sanz de Santamaría, A. (1989) Recopilación de Testimonios ATCC. Bogotá: Universidad de Los Andes. Semple, K. (2016) “With Colombia’s Peace Deal in Doubt, a Battered Town Fears a Return to War.” The New York Times, October 16. Available at: https://​www.nytimes.com/​2016/​10/​11/​ world/​americas/​colombia-​peace-​deal.html (Accessed February 22, 2020). Sepúlveda Roldán, D. (2004) Saiza: Esplendor y Ocaso, Un Pueblo Fantasma del Nudo de Paramillo. Tierralta (Córdoba): Corpocodesa, ACNUR, Opción Legal. Spencer, Philip. (2012) Genocide Since 1945. Routledge. Steele, A. (2017) Democracy and Displacement in Colombia’s Civil War. Cornell, NY: Cornell University Press.

War Crimes, Atrocities, and Resistance in Colombia    825 Symmes Cobb, J. (2018) “Colombia Tribunal Begins Mammoth Task of Investigating, Trying War Crimes.” Reuters, March 15. Available at: https://​www.reuters.com/​article/​us-​ colombia-​peace-​court/​colombia-​tribunal-​begins-​mammoth-​task-​of-​investigating-​trying-​ war-​crimes-​idUSKCN1GR2P6 (Accessed: February 22, 2020). Tate, W. (2007) Counting the Dead: The Culture and Politics of Human Rights Activism in Colombia. Oakland: University of California Press. Torres Sánchez, J., and Barrera Téllez, F. (1982) Colombia Represión, 1970–​1981. Vol. 2. Bogotá: CINEP. Triana y Antorveza, H. (1966) La Acción Comunal en Colombia: Resultados de una Evaluación en 107 Municipios. Bogotá: Ministerio de Gobierno, Direccion General de Integración y Desarrollo de la Comunidad. Uribe, M.V. (1990) Matar, Rematar y Contramatar: Las Masacres de la Violencia en el Tolima, 1948–​1964. Bogotá: CINEP. Valentino, Benjamin A. (2004) Final Solutions: Mass Killing and Genocide in the 20th Century. Ithaca: Cornell University Press. Villaraga Sarmiento, A. (2013) “Experiencias Históricas Recientes de Reintegración de Excombatientes en Colombia.” Colombia Internacional 77(1), pp. 107–​140. Wilkinson, D. (2011) “Death and Drugs in Colombia.” The New York Review of Books. Bogotá: Random House Mondadori. Wills, M.E., Gutiérrez, F., and Sánchez Gómez, G. (eds.) (2006) Nuestra Guerra Sin Nombre: Transformaciones del Conflicto en Colombia. Bogotá: Grupo Editorial Norma, Instituto de Estudios Políticos y Relaciones Internacionales (IEPRI). Wirpsa, L., Rothschild, D., and Garzón, C. (2009) “The Power of the Bastón: Indigenous Resistance and Peace Building in Colombia.” In: Bouvier, V. (ed.) Colombia: Building Peace in a Time of War. Washington, D.C.: USIP Press, pp. 225–​244. Zamosc, L. (1986) The Agrarian Question and the Peasant Movement in Colombia: Struggles of the National Peasant Association, 1967–​1981. Cambridge: Cambridge University Press. Zulver, J., and Weber, S. (2020) “Colombian Court Recognises Victims of Sexual Violence within Ranks of the FARC.” OpenDemocracy, January 10. Available at: https://​ www.opendemocracy.net/ ​ e n/ ​ d emocraciaabierta/ ​ c orte- ​ c olombiana- ​ r econoce- ​ a -​ v%C3%ADctimas-​de-​violencia-​sexual-​dentro-​de-​las-​filas-​de-​las-​farc-​en/​ (Accessed February 22, 2020).

B. Crimes against Humanity

CHAPTER 34

Crimes against Huma ni t y in Ind onesia ( 19 65 –​1 9 6 6 ) Jess Melvin and Annie Pohlman 1.  Introduction In October 1965, Indonesia descended into horrific violence. When the killings subsided, this violence was described by the United States’ Central Intelligence Agency1 as one of the worst bloodbaths of the 20th century. This violence was also a major turning point in the Cold War, not only due to the massive scale of the violence, but also because of the sectarian nature of the violence (Chamberlin, 2018, p. 211). The Indonesian military, with the assistance of co-​opted religious and nationalist youth militias, rounded up members and affiliates of the mass-​supported Indonesian Communist Party (PKI, Partai Komunis Indonesia). Between October 1965 and March 1966, up to 1 million unarmed civilians were murdered due to their alleged political beliefs, with a further estimated 1.5 million held in political detention camps for years afterward (Cribb, 1990b). Over half a century later, Indonesia continues to struggle with this dark past; to date, there has yet to be any official acknowledgement of, or apology for, these abuses. Since the fall of the military regime—​ General Suharto’s New Order, which came to power on the back of the killings (1966–​ 1998)—​Indonesia has experienced a period of democratic transition (1998–​2000), a period of political compromise (2001–​2006), and a period of democratic decline (2007–​present).2 Indonesia’s democratic transition and current democratic decline have been closely linked to attempts to either address or paper over the events of 1965–​1966. The mass pro-​ reform (reformasi) movement that succeeded in toppling Suharto in May 1998 included in its demands an end to the military’s Dual Function doctrine (Dwifungsi), which had provided the military with a direct role in Indonesia’s parliament, and for Suharto and

1  Central Intelligence Agency (CIA) (1968) Indonesia, 1965: The Coup that Backfired. Washington, D.C.: Central Intelligence Agency. 2  International Center for Transitional Justice (ICTJ) and the Commission for Disappeared Persons and Victims of Violence (KontraS) (2011) Derailed: Transitional Justice in Indonesia since the Fall of Soeharto—​A Joint Report by ICTJ and KontraS. Jakarta: ICTJ and KontraS.

830    Jess Melvin and Annie Pohlman his cronies to be put on trial for their crimes (Liotohe, 1999; Aspinall, 2005). By contrast, Indonesia’s current democratic decline has been linked to the slowing down and reversal of legal reforms achieved during the early reformasi period (Lindsey, 2017; Power, 2018), and a reconsolidation of political factions around former New Order–​era military generals, who have returned to play an increasingly visible role within Indonesian political life (Bland, 2019). A number of key developments during the early reformasi period buoyed hopes for an end to impunity for the 1965–​1966 killings. At the community level, survivors of the violence began to speak more openly about their experiences (Zurbuchen, 2002), a small number of mass graves were opened (McGregor, 2012), and some perpetrator groups (most notably one branch of Nahdlatul Ulama, Indonesia’s largest Islamic organization) issued an apology to survivors (McGregor, 2009). At the official level, new schoolbooks were permitted that called into question the military’s propaganda account of the killings (van Klinken, 2001, pp. 329–​333); systematic discrimination against former political prisoners, many of whom had spent decades in jail without ever being brought to trial, was lessened (Bedner, 2015); while a number of key investigations were initiated.3 The most significant of these investigations was led by Indonesia’s National Human Rights Commission (Komnas HAM: Komisi Nasional Hak Asasi Manusia), which launched an official inquiry into grave violations of human rights during the events of 1965–​1966.4 Komnas HAM’s inquiry was carried out between June 2008 and April 2012 and drew upon a suite of new human rights laws that had been introduced during the early reformasi period.5 The purpose of the inquiry was to establish whether or not it could be “reasonably suspected” that gross violations of human rights occurred during the 1965–​1966 period6 (Setiawan, 2018a, pp. 7–​8). According to Indonesia’s new Human Rights Courts Law, should Komnas HAM’s inquiry produce “sufficient preliminary evidence” that such abuses occurred, a full investigation must then be initiated by Indonesia’s Attorney General.7 It is then the role of the Attorney General to prosecute these cases,8 which are to be “heard and ruled upon” by an ad hoc Human Rights Court9 (Setiawan, 2016, pp. 15–​17).

3  Aside

from the report by the National Commission on Human Rights (Komnas HAM), which we detail in this chapter, another major investigation was undertaken by the National Commission on Violence against Women (Komnas Perempuan) into the 1965–​1966 violence. Its report was released in 2007 and also found strong evidence of crimes against humanity; however, the Komnas Perempuan reports do not have the same legal status or provisions of those undertaken by Komnas HAM. Komisi Nasional Anti-​Kekerasan Terhadap Perempuan (Komnas Perempuan) (2007) Gender-​Based Crimes Against Humanity: Listening to the Voices of Women Survivors of 1965. Jakarta: Komnas Perempuan. 4 On the obstacles that Komnas HAM faced in setting up the 1965–​ 66 investigation, and other investigations at the time, see Suh (2016). 5  See Indonesia’s new Law No. 39 of 1999 on Human Rights adopted 23 September 1999 (Basic Human Rights Law), and Law No. 26 of 2000 on Human Rights Courts was adopted 23 November 2000 (Law on Human Rights Courts). On these laws, and the investigative powers of Komnas HAM, see Herbert (2008). On the Komnas HAM investigation into 1965, see Evanty and Pohlman (2018). 6  Human Rights Courts Law, art. 18-​19. 7  Human Rights Courts Law, art. 21-​22. 8  Human Rights Courts Law, art. 23. 9  Human Rights Courts Law, art. 43.

Crimes against Humanity in Indonesia (1965–1966)    831 On July 23, 2012, Komnas HAM submitted its findings to the Attorney General in the form of an 854-​page report. This report found that there was indeed sufficient initial evidence to reasonably suspect that gross human rights abuses occurred during the events of 1965–​1966. This included evidence that crimes against humanity were committed (including killings, extermination, forced evictions, arbitrary deprivation of freedom, torture, rape, persecution, and enforced disappearances).10 It also found that “[t]‌hese events occurred as the result of state policy” and called upon the government to initiate a full legal investigation.11 Yet, these groundbreaking findings have been consistently stonewalled by successive Attorneys General, who have refused to authorize the next step of the investigation (Prakoso et al., 2012; Setiawan, 2018a). The significance of Komnas HAM’s finding that the 1965–​1966 killings constitute crimes against humanity12 cannot be understated. Nor can its finding that this violence occurred as the result of state policy.13 These findings directly contradict the Indonesian military’s official narrative of events, which remained the only permitted account of the violence for three decades under the New Order regime, and which remains the dominant narrative in that country to this day. According to this propaganda narrative, the 1965–​1966 killings began spontaneously when the people of Indonesia rose up in anger against their Communist neighbors following an “abortive coup attempt” during the early morning of October 1, 1965 (Notosusanto and Saleh, 1968; Crouch, 1978).14 The killings are thus explained as the result of unbridled communal violence driven by an instinctive ideological and religious hatred. This is also how the killings were depicted in the West, where Suharto, the General who seized power in the hours after the October 1 coup, was embraced as an ally who had helped to turn the tide of the Cold War in Southeast Asia (Henry, 2019). In fact, there is now overwhelming evidence, collected by Komnas HAM, other human rights organizations, and a growing number of scholars interested in the 1965–​1966 period, that the killings were initiated as part of a deliberate and centrally coordinated campaign led by the military as a means to implement its own covert plans to seize state power. The military deliberately manipulated events during the morning of October 1, 1965, in order to provide a pretext to launch its own preemptive attack against the Indonesian Communist Party and its mass base of supporters (Roosa, 2006). It likewise issued a series of instructions from the morning of October 1 that ordered both civilians and the military to “completely annihilate” (menumpas habis) Indonesia’s Communist Group (Melvin, 2018a, pp. 110–​118). This evidence complements Komnas HAM’s findings that the Indonesian military bears ultimate responsibility for the violence.15

10  Komnas HAM (2012) Statement by Komnas HAM (National Commission for Human Rights) on the Results of its Investigations into Grave Violations of Human Rights During the Events of 1965–​1966 (Unofficial translation). Jakarta: Ad Hoc Team to Investigate Grave Violations of Human Rights during the Events of 1965–​1966, 23 July (Komnas HAM 2012). 11  Komnas HAM 2012, p. 1. 12  The legal definition of “crimes against humanity” under both Indonesian and international law, and how this has been interpreted by Komnas HAM in its report, will be discussed further later. 13  Komnas HAM 2012, p. 1. 14 See also, Departemen Pertahanan-​ Keamanan (1965) 40 Hari Kegagalan ‘G.30.S’: 1 Oktober–​10 November 1965. Jakarta: Pusat Sedjarah Angkatan Bersendjata. 15  Komnas HAM 2012, pp. 25–​26.

832    Jess Melvin and Annie Pohlman The Indonesian government’s decision to stonewall the findings of Komnas HAM’s inquiry is not surprising; the 1965–​1966 report is but one of several Komnas HAM reports into past abuses submitted to (and rejected by) the Attorney General (Setiawan, 2016, pp. 23–​25). The Attorney General’s recalcitrance is just another sign of the current lack of appetite within the country’s political elite to deal with past atrocities or for further political reform (Kimura, 2015). Yet, the 1965–​1966 killings remain a striking example of how impunity can be maintained in the face of overwhelming evidence of crimes against humanity. For those new to the Indonesian case, it presents a jarring example of cognitive dissonance between competing truth claims. It also lays bare the failure of international law to bring perpetrators of gross human rights abuses to account in a consistent manner. This chapter provides an overview of atrocity crimes that were committed in Indonesia during the time of the 1965–​1966 killings, with a particular focus on identifying evidence of crimes against humanity. In discussing the Indonesian case study, this chapter provides a background to the 1965–​1966 violence, which includes a discussion of the causes and actors involved, and an overview of national patterns in the violence. We further reflect on why this violence can be understood as crimes against humanity, with specific reference to the legal argumentation provided by Komnas HAM. We argue that while it is clear that crimes against humanity occurred in Indonesia during the time of the 1965–​1966 killings, there is still much work to be done to establish the exact patterns in the violence and to identify the specific policies and chains of command that facilitated this violence on a national scale. Komnas HAM itself understood its role as providing only initial evidence that gross human rights abuses occurred during the 1965–​1966 period. Yet, the Attorney General actively impedes any further investigation that might lead to prosecutions against alleged perpetrators. If the Indonesian state continues to refuse to shoulder its responsibility by properly investigating these events, it will be left to civil society to continue this investigation.

2.  Background to the Violence Looking back on the years leading up to the 1965–​1966 mass violence, some of the critical warning signs for mass atrocity crimes in Indonesia are clear (McLoughlin and Mayersen, 2013). In the two decades since gaining its independence from Dutch colonial rule at the end of the Second World War, Indonesia was struggling to overcome the twin challenges of uniting and rebuilding a sprawling, underdeveloped, and tremendously diverse nation. Although a Muslim-​majority country, Indonesia’s population of nearly 100 million at the time held a wide range of religious beliefs and included more than 300 distinct ethnic groups. Though the country had begun with a democratic system of governance, internal divisions and various uprisings had seen a slide toward authoritarianism. Under Sukarno, Indonesia’s first president, parliamentary democracy gave way to martial law in 1957 and then to an increasingly authoritarian system of direct presidential rule in 1959 called Guided Democracy. It was during this period that the Indonesian Army began to take an increasingly direct role in civilian governance (Lev, 1966). Guided Democracy was a period of crisis and division in Indonesia. Rival political groups spurred bitter sociopolitical division. There were three main groups divided by

Crimes against Humanity in Indonesia (1965–1966)    833 competing ideologically driven aims for what type of country Indonesia should be: Islamic, Communist, and “developmentalist.” The developmentalist group, known within Indonesia as the “nationalist” group, loosely understood, was a group that espoused secular nationalism and advocated for a continuation of capitalist policies from the colonial era (Cribb, 2001, p. 226; see also Tornquist, 1984). This last group became principally identified with nationalist groups and the Indonesian Army. Large parts of the Indonesian populace became aligned with one of the three streams, either formally through membership within parties or organizations, or informally through associations with these institutions. Deep enmities among the three groups had developed by the early 1960s, particularly between those who identified with the Islamic and military-​capitalist groups against the Communists (McGregor et al., 2018, pp. 7–​10). By this stage, the Communist Party had grown to be the largest in the world outside the Soviet Bloc and China, with a support base of more than 20 million (Mortimer, 1974, p. 366). Concerned by the popularity of the Communists, Western governments formed alliances within the Indonesian Army to foster support for any move that could be taken to weaken the PKI or President Sukarno, whose rapprochement with the Communists domestically and abroad also worried the West (Simpson, 2008). By the mid-​1960s, these deep sociopolitical divisions were being exacerbated by a rapidly declining economy. Successive poor rice crop yields, poor economic management and policies, and hyperinflation resulted in progressively more difficult living conditions for much of Indonesia’s population (Mackie, 1964; Fox, 2002). As the threat of mass starvation loomed, and long-​simmering tensions between political opponents reached a boiling point, groups from within both the pro-​Communist and pro-​Army camps began to fear that the other was plotting to wrest power by means of a coup. In the months leading up to October 1, 1965, both the PKI and the Army became involved in the mobilization and training of civilian militia groups (Melvin, 2018b, pp. 58–​ 60). This training was ostensibly conducted in preparation for an armed confrontation with the newly independent state of Malaysia. In fact, both the PKI and the Army hoped to use these civilian militia groups should civil war break out within Indonesia. Both the PKI and the Army were anxious for this anticipated showdown to begin, but neither wished to be seen as the party that had precipitated such a confrontation. This anticipated showdown occurred during the morning of October 1, 1965. In official narratives, the events of this day are described as an “abortive coup attempt” intended to bring the Communists to power (Notosusanto and Saleh, 1968, p. 53; see also Crouch, p. 101).16 The reality would appear to be more complicated than this. Indeed, it would appear that both sides, those in the pro-​PKI camp and those in the pro-​Army camp, had been making plans. In the case of the pro-​PKI camp, a group of middle-​ranking military officers working secretly in coordination with PKI Chairman D.N. Aidit planned a series of political kidnappings. The apparent purpose of these kidnappings, which targeted key members of the Army leadership, was to expose an alleged plot by a group within the Army leadership (known as the “Council of Generals”). This pro-​PKI group, which called themselves the 30 September Movement, hoped that Sukarno would feel forced to act against the Army leadership and, in doing so, strengthen the position of the Communists

16 See also, Departemen Pertahanan-​ Keamanan (1965) 40 Hari Kegagalan ‘G.30.S’: 1 Oktober–​10 November 1965. Jakarta: Pusat Sedjarah Angkatan Bersendjata.

834    Jess Melvin and Annie Pohlman vis-​à-​vis the Army. In the case of the pro-​Army camp, declassified telegrams sent between U.S. diplomats and the U.S. State Department show that a group within the Army leadership was indeed planning to move against Sukarno (who was viewed by the Army leadership as too pro-​Communist), as soon as a suitable pretext could be found to initiate such a move (Roosa, 2008, pp. 177–​197). Both of these plots were put into action during the early hours of October 1, 1965, when the 30 September Movement launched its kidnapping campaign. The 30 September Movement’s plans went seriously awry when the kidnapped generals were murdered. This meant that the 30 September Movement could no longer portray the kidnapped generals as the aggressors and were instead forced to defend their own actions. Indeed, the group’s misguided efforts at crisis mitigation—​through its announcement of an emergency government that it named the “Revolution Council” during the afternoon of October 1—​only acted to enflame the situation further.17 The Army was able to recover from this serious blow when surviving members of the Army leadership, including Sumatra’s Interregional Military Commander, Ahmad Mokoginta, and national Special Forces Commander, Suharto, were able to regain the initiative by declaring martial law during the morning of October 1 (Melvin, 2019, pp. 49–​ 52). Suharto and Mokoginta did this by portraying the 30 September Movement as a failed Communist coup, despite the 30 September Movement declaring no intention to seize control of the government until that afternoon. Suharto and Mokoginta also seized control over telecommunications, including internal and public radio transmissions. They then initiated an “annihilation operation” (operasi penumpasan) against the 30 September Movement from midnight on October 1 (Melvin, 2018a, pp. 117–​118). Suharto and Mokoginta’s attack would become an intensified version of the Army’s original plan to move against Sukarno and the PKI leadership. The Army was now able to order the wholesale destruction of the PKI and Indonesia’s Communist Group, as such—​a group which included both members of the PKI and its supporters (see later). This attack against Indonesia’s Communist Group, which would eventually spread to each of Indonesia’s many provinces, was centrally coordinated by the Army leadership. Indeed, clear phases and patterns can be identified in this violence. This attack resulted in a widespread and systematic perpetration of gross human rights abuses.

3.  Perpetrators and Victims For over half a century, the Army leadership has denied its role in coordinating the 1965–​ 1966 killings, choosing instead to depict the violence as the result of communal conflict.

17  “Decree No. 1 on the Establishment of the Indonesian Revolution Council” was read over the national radio station at approximately 2:00 p.m. on October 1, 1965. The statement is attributed to the “Information Section of the 30 September Movement.” See “Selected Documents Relating to the ‘September 30th Movement’ and its Epilogue,” Indonesia, vol. 1 (April 1966), pp. 136–​137.

Crimes against Humanity in Indonesia (1965–1966)    835 Recently discovered internal military documents in Aceh province show that the Army leadership directly ordered civilians to participate in the violence. This was done through mass meetings, where the local Army commander demanded that civilians either assist the Army in its annihilation campaign, or face being targeted themselves (Melvin, 2018a, pp. 139–​155). The Army additionally mobilized and armed civilian militia groups to act as death squads (Ryter, 1998; Melvin, 2018a).18 Organized as part of a national network, these death squads were responsible for many of the public killings that occurred. They were also involved in the running of torture centers (see Pohlman 2021). Local civilian defense groups were additionally mobilized and were active in helping to transport prisoners to execution sites from the state-​run jails in which they were held (Crouch, 1978; Oppenheimer, 2004; Melvin, 2018a). In other cases, local villagers were induced to act as executioners or to otherwise assist in the killing process (Oppenheimer, 2004; Melvin, 2018a).19 The national scale of the killings and the clear patterns in the violence that can be seen between different provinces (McGregor et al., 2018)20 are clear evidence of the centralized nature of the Army’s coordination of the violence. The Army’s target group included members of the PKI and individuals who were members of the PKI’s many affiliated organizations, including its youth wing, Pemuda Rakyat; peasant organization, BTI; workers’ union, SOBSI; cultural organization, LEKRA (McGregor, et al., 2018); as well as members of the pro-​Communist women’s group, GERWANI (Wieringa, 2002; Pohlman, 2015), and the pro-​Communist Chinese union, BAPERKI.21 The families, including children, of individuals deemed to be Communists were also targeted, as were individuals who were believed to be loosely associated with these groups (McGregor et al., 2018). In some cases, entire villages were exterminated because a headman or prominent political leader was deemed to be associated with the PKI. Members of Indonesia’s ethnic Chinese community were also targeted (Coppel, 1983; Melvin, 2013; Zhou, 2019). The broad nature of the target group is evidence that the Army not only targeted the PKI as a political organization, but actively sought to exterminate an entire sociopolitical group within Indonesian society, broadly defined within Indonesia at the time as the “Communist Group” (Kaum Komunis) (Melvin, 2018a, p. 39).

18  This national network of death squads was coordinated by Colonel Sarwo Edhie (Melvin, 2018a, p. 306). The death squads received funding from the United States. See “Telegram from US Ambassador Green to US State Department, 2 December 1965.” Foreign Relations of the United States, 1964–​1968: Volume XXVI, Indonesia; Malaysia-​Singapore; Philippines. Washington D.C.: Government Printing Office, 2001. Compare also The Look of Silence (2014) [Online] Directed by: Oppenheimer, J., and Anonymous. Denmark: Final Cut for Real. Available at: http://​thelookofsilence.com/​watch#watch-​now-​ online (Accessed: March 5, 2020). 19  See also “Liputan Khusus: Pengakuan Algojo 1965” (2012) TEMPO, October 7. Available at: https://​ majalah.tempo.co/​read/​laporan-​khusus/​150242/​jejak-​berdarah-​algojo-​1965 (Accessed: March 5, 2020). 20  International Peoples’ Tribunal for 1965 Foundation (IPT 1965) (2016) Final Report of the IPT 1965: Findings and Documents of the International Peoples’ Tribunal on Crimes Against Humanity Indonesia 1965. The Hague/​Jakarta: IPT 1965 Foundation, July 20. Available online: www.tribunal1965.org/​final-​ report-​of-​the-​ipt-​1965/​ (Accessed: October 2, 2019) (Final IPT Report). 21  Final IPT Report.

836    Jess Melvin and Annie Pohlman

4.  The 1965–​1966 Killings as Crimes against Humanity The 2012 full report submitted to the Attorney General by Komnas HAM on its investigation into abuses in 1965–​1966 has never been officially released.22 What is publicly available is the 28-​page Executive Summary, which outlines the main findings and gives a range of examples of abuses documented by the investigation team.23 These findings are based on the testimonies of 349 witnesses from six regions of Indonesia, most of them in the outer islands (Setiawan, 2018a, pp. 7–​8). Indonesia’s legal framework that gives Komnas HAM its mandate provides for the investigation and prosecution of just two categories of international crimes deemed gross violations of human rights: genocide and crimes against humanity.24 The definition of genocide under Indonesian law25 is generally consistent with that given in the UN Genocide Convention.26 Meanwhile, the definition of crimes against humanity27 is a generally consistent adaptation of the Rome Statute of the International Criminal Court.28 While Indonesia may have taken its domestic definitions from international instruments, it is a party to neither the Genocide Convention nor the Rome Statute, and it is highly unlikely that it will ratify either in the future (see Pohlman, 2016a; Huikuri, 2017). The Komnas HAM team found strong evidence of crimes against humanity, specifically acts of murder, extermination, enslavement, forced evictions (deportations), arbitrary detention, torture, sexual violence, persecution, and enforced disappearances.29 Further, the Komnas HAM report found evidence to support the necessary “chapeau” elements of

22 

The full report has been intermittently available on various internet sites; the authors of this chapter have found it on Wikileaks.org in the past. 23  An unofficial English translation done by Carmel Budiardjo, the founder of the human rights group, TAPOL. See: “The Executive Summary” (2012) Komnas HAM (translated by Budiardjo, C.) Available at: http://​thelookofsilence.com/​wp-​content/​uploads/​Komnas-​HAM-​1965-​TAPOL-​translation.pdf (Accessed: July 2, 2019); Komnas HAM 2012. 24  Human Rights Courts Law, art. 7. See also Basic Human Rights Law, under which Komnas HAM’s legal status and mandate were strengthened. Although Indonesia ratified the Geneva Conventions of 1949, many viewed the absence of war crimes from the 2000 Human Rights Courts Law as deliberate, given the Indonesian military’s numerous criminal acts (that is, grave breaches) while engaging in domestic warfare and counterinsurgency in places such as occupied East Timor or Aceh (see Linton, 2006, p. 211). There was some discussion in 2005 of introducing war crimes into the Civil and Military Penal Codes, but nothing came of it (see Kadam, 2005, p. 153). There has never been any likelihood that the fourth international crime (the crime of aggression) under Article 5 of the Rome Statute would be included in Indonesian law. For an analysis of if and how international humanitarian law might apply in the case of the 1975 invasion of East Timor, see Saul (2009). 25  Human Rights Courts Law, art. 8. 26  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention), art. 2. 27  Human Rights Courts Law, art. 9. 28  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute), art. 7. 29  Komnas HAM 2012, p. 23.

Crimes against Humanity in Indonesia (1965–1966)    837 crimes against humanity—​that the acts were committed as part of a “widespread or systematic attack directed against a civilian population,” and that the perpetrators knew that their actions were part of, or were intended to be part of, this attack—​as per both Indonesian domestic and international law.30 The Komnas HAM report addressed each element in turn: the widespread and systematic nature of the attacks; the direction of these attacks against a civilian population; as well as the criminal responsibility of perpetrators, including the command responsibility of military commanders and senior civilian officials.31 Specifically, the report argued that the evidence underscored that the documented acts were “an attack against members and/​or sympathizers of the PKI.”32 In its Executive Summary, Komnas HAM provides a succinct outline of the major patterns of violence, which explains how each of the listed crimes occurred as part of the attack on civilians. We quote this summary here, in full, as it constitutes the most comprehensive official summary currently available: According to statements by the witnesses, it is evident that the crimes committed ran along similar lines which established a clear pattern. The acts that occurred and which were experienced by the victims were as follows: The action would commence with the arrest by the perpetrator of victims, who were then held in military bases, particularly at the local KORAMIL33 in prisons or in places that were under military control and they had been brought there by force. Once they arrived at these places, the victims began to be interrogated by the security forces who consisted of army personnel, the police and attorneys. While they were being interrogated, the victims were subjected to acts of violence such as persecution, rape and even being killed. While under detention, the victims were very rarely—​in fact almost never—​allowed to access their families. They were not properly fed and in some cases given no food at all. Some witnesses said that they saw detainees dying because of the inadequacy of the food that had been given. A small number of the detainees were brought before a court of law which the victims regarded as having conducted unfair trials. The sentences meted out were maximal and some people were sentenced to death. During the following years, some of the detainees were sent to internment camps such as the island of Buru and Nusakambangan. This was the sequence of events that the vast majority of the victims experienced during the 1965–​1966 events. In every case, the sequence of events was the same: for instance, killings occurred after lists of victims had been drawn up and these lists were then used by large groups of people who had been mobilized by the security forces to kill the victims or take them away to be killed in places that had been prepared in advance or places such as rivers, caves, places along the coast, very deep wells or holes in the ground. While being interrogated, the victims were beaten, given electric shocks, stripped naked and forced to confess something or threats were made against their relatives. As regards the crime of enslavement, victims were made to

30 

Human Rights Courts Law, art. 9; International Criminal Court (ICC) (2011) Elements of Crimes. The Hague: ICC, pp. 5–​12. 31  Komnas HAM 2012, pp. 14–​22. 32  Komnas HAM 2012, p. 16. 33  Translator’s note: the military units at the lowest level. Indonesia’s military is structured through a system of garrisons, called the territorial command structure, each level reflecting a corresponding civilian bureaucratic level of governance. Thus area-​level commands (KODAM and KOREM) are at the provincial level (or higher); KODIM are district or regency level commands; then KORAMIL are at the sub-​district level; with finally BABINSA at the village level. See Lowry (1996, pp. 46–​84).

838    Jess Melvin and Annie Pohlman do forced labour for government projects or for the military; they were given inadequate food or were made to work in the homes of military officers.34

From this summary, examples of nine different types of crimes against humanity are given, along with the context in which they are reported to have occurred, and their overall functionality to the military’s attack. Here we outline each of the nine crimes against humanity for which Komnas HAM found compelling evidence.

4.1. Murder Komnas HAM proposes that killings occurred primarily in the context of detention: with victims either killed as a result of being interrogated, or when they were transferred from their place of detention to pre-​prepared killing sites. Murder in detention (often while being interrogated) is widely reported in studies into the killings (see, for example, Cribb, 1990a; Kammen and McGregor, 2012). However, killings that took place after prisoners were transferred away from their places of detention, including killings carried out by groups of civilians “who had been mobilized by the security forces” at pre-​prepared killing sites,35 are best understood as extermination and will be subsequently discussed separately. Murder during interrogation was counterproductive to the military’s stated objective of seeking intelligence. An example of this type of murder given by Komnas HAM occurred in a detention center on Gandhi Street in Medan, North Sumatra, where, it is explained: “The witness said that he had seen people being whipped, kicked, beaten with truncheons, given electric shocks and other kinds of torture. Some prisoners had died as a result.”36 This type of murder can be understood as a result of violent interrogation measures and a criminal indifference to human life. Another form of murder at the time, which is not included in Komnas HAM’s summary, is the public killings or “spectacular violence” that occurred, generally during the early phase of the military’s attack in a particular region. In the case of Aceh, Indonesia’s westernmost province, where the most comprehensive collection of internal military documents from the time of the killings have been found, it is known that the military documented these killings, which numbered 1,941 individual cases in that province (Melvin, 2018a, pp. 162–​163). These public killings are recorded as being perpetrated by unknown forces. The victims were either killed during pogrom actions, when large crowds, under the watchful eye of the military, marched on the offices or private residences of individuals accused of being associated with the PKI; or when individuals were abducted and their bodies later found dumped in public places (Melvin, 2018a, pp. 163–​187). This type of murder is distinct from the types that occurred as a result of detention or during interrogation. Its major purpose was to create fear within the community and to drive individuals who saw themselves as possible targets of violence into the arms of the military, as they sought protection from the violence that was occurring on the streets

34

  Komnas HAM 2012, pp. 17–​18.   Komnas HAM 2012, p. 18. 36   Komnas HAM 2012, p. 9. 35

Crimes against Humanity in Indonesia (1965–1966)    839 (Melvin, 2018a, p. 188). Similar types of public killings have been recorded in North Sumatra (Oppenheimer, 2004); West Sumatra (Pohlman, 2012; 2016b); in Bali (Siregar, 1993); and Java.37

4.2. Extermination Extermination here refers to the systematic killings that occurred when prisoners were transferred from their places of detention to killing sites, either directly by the security forces or by civilians acting under the direction of the security forces. Komnas HAM38 reports that these killings occurred at pre-​prepared killing sites, where trenches were often dug prior to the arrival of the prisoners, or at naturally occurring disposal sites, such as riverbanks or ravines. The purpose of these killings was to systematically exterminate the prison population. Stories of the transport of prisoners and their subsequent “disappearance” are among the earliest accounts of the killings in the literature (Cribb, 1990a; Bowen, 1991). Yet, what happened to these people once they were taken remained a mystery until recent years, when eyewitnesses and participants in these killings have come forward (Oppenheimer, 2004; Melvin, 2018a).39 It is now clear that prisoners were killed in a highly systematic manner, with truckloads of detainees sent off each night for execution. Komnas HAM estimates that 1,900 individuals were the victims of extermination in just three of the sites they investigated.40 It can only be guessed how many more victims were exterminated at similar sites around the country (Vickers, 2010). The extermination of prison populations occurred throughout the country. Human Rights Watch41 has reported on the existence of 122 known mass grave sites throughout the country, as reported by victims’ advocacy groups. It is believed that these reported mass graves sites represent only a fraction of the total number of potential mass grave sites that are believed to exist around the country. President Joko Widodo (Jokowi) ordered the then security minister, Luhut Binsar Pandjaitan, to start documenting these locations in April 2016 in response to international and domestic pressure. Yet, to date, no official attempt has been made to preserve or investigate forensic evidence at these sites.42

37  “Additional Data on Counter-​revolutionary Cruelty in Indonesia, Especially in East Java.” In Cribb (1990, pp. 169–​176). 38  Komnas HAM 2012, p. 2. 39  See also “Liputan Khusus: Pengakuan Algojo 1965” (2012) TEMPO, October 7. Available at: https://​ majalah.tempo.co/​read/​laporan-​khusus/​150242/​jejak-​berdarah-​algojo-​1965 (Accessed: March 5, 2020). 40  Komnas HAM 2012, p. 24. 41 Human Rights Watch (2016) Indonesia: Protect Graves of 1965–​ 66 Massacres. Available online: https://​www.hrw.org/​news/​2016/​05/​22/​indonesia-​protect-​mass-​graves-​1965-​66-​massacres (Accessed: July 4, 2019). 42   Members of the survivors’ group, the YPKP (The Foundation for Research into the Victims of the 1965–​66 Massacres), have been mapping the locations of the mass graves across the archipelago since 2016. At the time of writing (mid-​2019), the YPKP had identified more than 330 mass graves. See Pohlman (2020).

840    Jess Melvin and Annie Pohlman The use of death lists has been widely reported in studies on the killings (Oppenheimer, 2004; Hearman, 2018; Melvin, 2018a; Wieringa, 2019). While lists were also used to facilitate the frequent extra-​judicial arrests of individuals accused of being associated with the PKI, these post-​arrest lists were additionally used as a type of receipt. One of the only known examples of such a list was found in North Sumatra.43 It shows a list of 32 prisoners, their places of detention and their intended final destination: the infamous Snake River (Sungai Ular) killing site.44 This list was used by the Komando Aksi (Action Command) death squad that operated during the time of the killings under the direction of the military. It shows the level of coordination at play behind the extermination of prisoners: prison staff, military-​sponsored death squads, and the coordinating military were all operating together to facilitate the efficient extermination of the prison population.

4.3. Enslavement Komnas HAM explains that prisoners were routinely compelled to perform forced labor, including work on government projects, or work for the military. As investigations by human rights bodies, such as the International Committee of the Red Cross and Amnesty International in the mid-​to late 1970s showed, political prisoners were frequently forced to work in a variety of settings, including factories, plantations, and public work units.45 This pattern of forced labor can also be found in the historical record. An American TV news report, filmed in North Sumatra in 1967, explains that prisoners—​former union members accused of being associated with the PKI—​were routinely forced to work without pay on the plantations where they had once been employed.46 This forced work constituted a form of enslavement. This type of forced labor was also present at privately owned international companies, such as the American-​owned Goodyear rubber plantation in North Sumatra (Yen-​ling and Kammen, 2012, p. 147). This complicity by international corporations has parallels with Nazi Germany, when prisoners were forced to work for different corporations, including IBM (Black, 2002). To this day, the Goodyear corporation has yet to be brought to account for benefiting from the enslaved labor of prisoners during the time of the 1965–​1966 mass killings.47 Prisoners were also forced to work on public works throughout Indonesia by the Army (Ahmad, 2012; Wandita et al., 2019). This included prisoners who were forcibly deported to 43  This remarkable document was collected as part of a memoir written by a former death squad member, Amir Hasan, in North Sumatra by Joshua Oppenheimer during filming for The Look of Silence (2014). A copy of the document was later given to Komnas HAM (Melvin, 2018a). 44 “Daftar Kader (CC) PKI yang Diamankan” (1966). Reproduced in: Hasan, A (n.d.) “Embun Berdarah”. Self-​published. 45 Amnesty International (1977) Indonesia: An Amnesty International Report, AI Index 77/​ 00/​77. London: Amnesty International, pp. 71–​75. 46 “Indonesia: The Troubled Victory” (1967) NBC News, February 19. Available at: https://​ highered.nbclearn.com/​portal/​site/​HigherEd/​browse?cuecard=71167 (Accessed: July 27, 2019). 47  For a general overview of the involvement of corporations in atrocity crimes see Chapter 17 by Wim Huisman et al. in this volume.

Crimes against Humanity in Indonesia (1965–1966)    841 prison islands, such as Buru (See section 4.4), where they were routinely forced to build the barracks where they lived and to provide the food that they would eat, or face starvation.

4.4. Deportation Komnas HAM reports that some detainees were deported to internment camps such as Buru Island. In total, an estimated 10,000 political prisoners are believed to have been sent to Buru (Adam, 2019, p. 84). Generally, it was long-​term prisoners who were relocated to these internment camps. In the case of Buru, long-​term prisoners were forcibly relocated as of 1969 (Setiawan, 2020). The site was apparently chosen due to its isolation and difficulty of escape. Prisoners sent to Buru were subjected to enslavement. They were also subjected to extraordinarily harsh living conditions. These conditions have been recorded most poignantly by Pramoedya Ananta Toer, Indonesia’s most celebrated author, who was sent to Buru in 1969 due to his connection to the PKI-​affiliated LEKRA cultural group. In his memoir, The Mute’s Soliloquy, Toer (1999) documents the lack of food, medical care, and other daily deprivations and violence experienced by prisoners. The international community was aware of the existence of these internment camps and the forced deportations that accompanied them. Amnesty International made semi-​regular visits to Buru Island and submitted petitions for the release of prisoners (Adam, 2019). Yet, these internment camps continued to function until 1979. Another form of forced deportation and forcible transfer of population that occurred during the time of the 1965–​1966 killings, but which is not mentioned in the Komnas HAM report, is the forced deportation and forcible transfer of ethnic Chinese from Aceh between April and August 1966 (Melvin, 2018a). This deportation was ordered by Aceh Military Commander Ishak Djuarsa, with the justification that ethnic Chinese who remained in the province faced being killed by unknown forces. In fact, the military was complicit in portraying ethnic Chinese in the province, as elsewhere throughout the country, as being involved in the actions of the 30 September Movement (Melvin, 2017). It is believed that at least 10,000 members of Aceh’s community fled Aceh at this time (Melvin, 2018a). Many were subsequently detained in North Sumatra or encouraged to leave the country on ships supplied by the People’s Republic China, bound for mainland China.

4.5. Imprisonment Imprisonment was a central component of the crimes that occurred in 1965–​1966. Komnas HAM identifies the arrest and imprisonment of alleged Communists as the major pattern of behavior that led to further abuses. The majority of targeted individuals were arrested without warrant, most of whom were held without trial or access to due legal process. Once in detention, prisoners were subjected to further abuses, including lack of food and medical care and the prohibition of communication with family. Many prisoners were subjected to torture, sexual abuse, or died while in detention. As discussed earlier, these detention centers became the place where prisoners were brought together before being transported for extermination. The places of imprisonment across the archipelago, and the

842    Jess Melvin and Annie Pohlman numerous abuses perpetrated against the detainees, were clearly documented in contemporaneous reports48 (see also, for example, van der Kroef, 1976). The centrality of imprisonment to crimes committed during 1965–​1966 raises the broader question of why the military chose to implement its annihilation campaign in this manner (see Kammen and Zakaria, 2012). Why not simply kill suspected Communists in the streets, as it did during the early stages of its annihilation campaign? The grim answer is likely that imprisonment allowed for the facilitation of a more efficient extermination campaign. In detaining its target group, the military was able to more easily control this target group and to facilitate its extermination in a routine and industrialized manner. This process of using imprisonment to facilitate the systematic extermination of a target group was also observed during the Holocaust, where victims were first isolated (in the ghetto and in jails) before being transported to concentration camps, where detainees were either killed through neglect (such as through starvation or overwork) or systematically murdered (such as being gassed in specially constructed chambers). In the case of Indonesia, a more rudimentary process of systematic murder was used, with prisoners killed en masse by being shot or beheaded at either pre-​prepared killing sites or at naturally occurring dump sites. Yet, the process was ultimately the same: prisoners were systematically processed for death with the aim of exterminating the prison population. This commonality has caused a number of scholars, including key scholars of genocide, to ask whether the 1965–​1966 killings were also genocidal in nature (see Kuper, 1981, pp. 152–​153; Chalk and Jonasshon, 1990, p. 35).

4.6. Torture Torture was a systematic crime against humanity perpetrated against those rounded up and held as political prisoners. Research with survivors of the detention camp system shows that, of the hundreds of thousands held as political prisoners after October 1965, the vast majority were tortured (see Roosa, 2008; Wandita et al., 2019). This torture was carried out primarily by state agents—​such as members of the military, but also the military police, military intelligence, and police—​with some co-​opted actors like men drawn from the various anti-​Communist militias who assisted in perpetrating other forms of violence at that time. Interrogations were carried out routinely and systematically against those being rounded up because of their alleged Communist ties, and the majority of these interrogations involved the intentional infliction of severe pain and suffering. As the mass detention camp system evolved and expanded in late 1965 and early 1966, specific torture centers were set up in order to interrogate the thousands, even tens of thousands, of victims being brought in every week (see Pohlman, 2021). The widespread and systematic nature of torture against the political detainees is undoubted. As Roosa (2008, p. 38) explains, the scale of this mass torture can be seen in the Indonesian Army’s “vast bureaucratic structure to collect and channel information from

48 Amnesty International (1977) Indonesia: An Amnesty International Report, AI Index 77/​ 00/​77. London: Amnesty International; TAPOL (The British Campaign for the Release of Indonesia’s Political Prisoners) (1976) Indonesia: The Prison State. London: TAPOL.

Crimes against Humanity in Indonesia (1965–1966)    843 a nationwide network of interrogators, from those working at the sub-​district level all the way up to those working at the national level, in Jakarta.” This network involved interrogation teams that operated within the detention camp system, as well as ad hoc interrogations carried out by the military and other men who worked at these camps (Wieringa and Katjasungkana 2018, pp. 42–​49, 138–​142). The Komnas HAM investigation uncovered hundreds of cases of torture and, in their full report, gave specific details of the many techniques that the vast network of interrogation teams used against their many victims. As mentioned earlier, many of those tortured in the camp system died from their wounds or from lack of medical care, and many others were taken from detention to secure disposal sites and executed en masse by the security services. From October 1965 until approximately 1970, when the mass arrests of suspected Communists finally abated, it is difficult to adequately describe the scale of these abuses or to arrive at an accurate estimate of how many detainees were tortured, though it is likely that the number is in the hundreds of thousands.

4.7. Sexual violence The Komnas HAM investigation team found evidence of rape and other forms of sexual violence amounting to crimes against humanity.49 From research conducted with those who survived the killings and detention camps, particularly women survivors, it is clear that sexual violence was pervasive during this period (see, for example, Wieringa, 2002; Sukartiningsih, 2004; Kolimon and Wetangterah, 2012; Pohlman, 2015).50 This violence took many forms, all of which could be prosecuted as crimes against humanity, including rape, sexual violence as torture, sexual enslavement, forced pregnancy, forced abortion, and other forms of sexual violence of similar gravity (see Pohlman, 2017; 2019). This violence was perpetrated predominantly against women and older teenage girls, however, there were also some cases against men and boys (see Pohlman, 2017). These crimes occurred in a wide range of settings: in victims’ homes, in public, in prisons, in police or military barracks, and in the many ad hoc facilities used to hold people detained following the 1965 coup. The timeframes for the crimes discussed in this report also vary considerably: from individual assaults, to repeated assaults over days and weeks, to conditions of sexual enslavement, enforced prostitution, and forced marriage lasting months or years (see Pohlman, 2015). The range of sexual offenses and the many conditions in which they were perpetrated are evidence for the widespread or systematic nature of sexual violence as crimes against humanity during the anti-​Communist violence in Indonesia.

4.8. Persecution Persecution as a crime against humanity was addressed by the Komnas HAM investigation team as a wide range of acts that were persecutory and discriminatory on political grounds; 49 

Komnas HAM 2012, p. 24. Nasional Anti-​Kekerasan Terhadap Perempuan (Komnas Perempuan) (2007) Gender-​ Based Crimes against Humanity: Listening to the Voices of Women Survivors of 1965. Jakarta: Komnas Perempuan. 50 Komisi

844    Jess Melvin and Annie Pohlman that is, acts of violence directed against those deemed Communist supporters. The Komnas HAM report also delves into the somewhat amorphous concept of persecution both in international case law and Indonesian domestic law (which corresponds poorly with the criminal offense of “penganiayaan,” or assault) (Linton, 2006, p. 215; see also Fenrick, 2001; Oosterveld, 2006). The Komnas HAM investigators therefore captured numerous offenses within their findings of persecution, including “killings, eradication, enslavement, eviction or forced removal of people, the deprivation of freedom, torture, rape” and other acts such as “arson . . . , the destruction of people’s homes, the arbitrary deprivation of a person’s freedom,” all of which were part of the “attack against members and/​or sympathizers of the PKI.”51

4.9. Enforced disappearances The final crime addressed by the Komnas HAM investigation team was enforced disappearances. In its Executive Summary, Komnas HAM identifies 32,774 individual cases of enforced disappearances, in just five locations that it chose to highlight.52 These cases included groups of prisoners, often 30–​60 individuals at a time, who were “disappeared” after being transported from their places of detention in South Sumatra and North Sumatra to “unknown” final locations.53 These presumed murders can thus be seen as part of the same process described earlier under the category of extermination. These disappearances also appear to be part of a distinct pattern within the military’s annihilation campaign. Perpetrators of the killings deliberately made it difficult for victims’ families to know the final resting place of their loved ones. In some cases, victims’ families were told that they were being sent to prison in a neighboring town, when in reality they were being taken to be killed (Oppenheimer, 2004; Melvin 2018a).54 In other cases in 1965–​ 1966, victims were abducted off the streets and subsequently disappeared (Melvin, 2018a, p. 259). The armed forces and military-​sponsored death squads are believed to be the major perpetrators of these “disappearances.” Enforced disappearances like those committed in 1965–​1966, are part of a larger pattern of similar violence used by the Indonesian security services. Disappearing political opponents, suspected rebels, and civilians caught up in military crackdowns became part of the military’s modus operandi throughout the military regime (Linton, 2006; Roosa, 2016). Enforced disappearances became so ubiquitous under the New Order regime that one of Indonesia’s main human rights NGOs, KontraS (Commission for the Disappeared and Victims of Violence), was founded in 1998 specifically to investigate this type of crime.

51 

Komnas HAM 2012, p. 16. Komnas HAM 2012, p. 25. 53  Komnas HAM 2012, pp. 3, 12–​13. 54  See also KontraS (2011) Menyusun Puzzle Pelanggaran HAM 1965: Sebuah Upaya Pendokumentasian. Jakarta: KontraS. 52 

Crimes against Humanity in Indonesia (1965–1966)    845

5.  Civil Society’s Push for Redress In the decade since Komnas HAM submitted its report on the 1965–​1966 mass violence to Indonesia’s Attorney General, there has yet to be any further official investigation into these crimes, let alone any move toward criminal procedures against alleged perpetrators. There has not, in fact, been any significant effort by the Indonesian state since the early 2000s to advance any of the mechanisms for the investigation or redress of gross human rights violations that were provided for in the key human rights legislation introduced in the first few years after the end of the New Order military regime such as a human rights court, or a national truth and reconciliation commission (Kimura, 2015; Setiawan, 2018a).55 There has, however, been a series of initiatives by Indonesian civil society groups and their supporters to push for accountability and justice. In spite of the official recalcitrance to deal with the past on the part of successive administrations, these civil society–​driven campaigns have succeeded in raising awareness about the mass killings and other human rights violations both domestically and abroad. Indeed, ever since the fall of the New Order in 1998, survivor groups, human rights non-​ governmental organizations, and a range of other civil-​society actors have been pushing for the Indonesian state’s acknowledgement of, and redress for, the crimes of 1965–​1966 (Wahyuningroem, 2013). Moreover, there was a surge in civil-​society initiatives that began at around the same time that Komnas HAM was finalizing its report in 2012, which was the same year that the American filmmaker Joshua Oppenheimer and his team of Indonesian collaborators released The Act of Killing.56 This film unveiled the murderous campaign against alleged Communists in North Sumatra. Along with its follow-​up, The Look of Silence (2014), it drove a wave of unprecedented domestic and international awareness of the killings (Carew, 2017). Shortly after the release of The Act of Killing, one of Indonesia’s foremost media organizations, TEMPO, published the findings of its own investigations into the killings,57 which included some of the first perpetrator testimony ever made public and which incited widespread public debate about the role of the military in the violence (Hatley, 2013). The 50th anniversary of the killings in 2015 further spurred human rights groups, survivor organizations, and their supporters to advocate for investigation and redress. Domestically, human rights groups stepped up their efforts to collect and publicly circulate survivors’ testimonies, such as through the “Year of Truth” initiative in 2012–​2013, a campaign that created numerous online platforms and held public hearings where survivors

55  International Center for Transitional Justice (ICTJ) and the Commission for Disappeared Persons and Victims of Violence (KontraS) (2011) Derailed: Transitional Justice in Indonesia since the Fall of Soeharto—​A Joint Report by ICTJ and KontraS. Jakarta: ICTJ and KontraS; For more on the measures taken by the Indonesian government and the investigative powers of Komnas HAM see Herbert (2008). On the Komnas HAM investigation into 1965 see Evanty and Pohlman (2018). 56  The Act of Killing (2012) [Online] Directed by: Oppenheimer, J., Cynn, C., and Anonymous. Denmark: Final Cut for Real. Available at: https://​www.amazon.com/​Act-​Killing-​Joshua-​Oppenheimer/​ dp/​B00GO9HMJ8 (Accessed: March 5, 2020). 57 “Liputan Khusus: Pengakuan Algojo 1965” (2012) TEMPO, October 7. Available at: https://​ majalah.tempo.co/​read/​laporan-​khusus/​150242/​jejak-​berdarah-​algojo-​1965 (Accessed: March 5, 2020).

846    Jess Melvin and Annie Pohlman gave testimony about their experiences (Pohlman 2016c). Internationally, a large group of survivors, activists, and researchers from Indonesia and abroad held the International Peoples’ Tribunal for 1965.58 Evidence for the Tribunal was compiled from hundreds of sources and presented to the judges at the main public hearings in The Hague in late 2015.59 Although not legally binding, the Tribunal succeeded in drawing international criticism for Indonesia’s lack of redress for the 1965–​1966 killings (see Wieringa et al., 2019). In response, the Indonesian government held a “National Symposium on 1965,” bringing together survivors, activists, and academics as well as government officials and former military members. Despite initial promising signs that the government was willing to begin “opening up” the 1965 case, the symposium was largely symbolic and resulted in no genuine actions (McGregor and Purdey, 2016). Since then, the current administration under Joko Widodo has made it clear that there will be no further discussion or official movement on 1965 or any other cases of gross human rights violations. Rather, Widodo has welcomed former perpetrators from the military back into his cabinet, and his government now only speaks of “dealing with the past” through a proposed “National Harmony Council”—​a body that would be led by the military and preclude any potential judicial mechanisms for redress (Setiawan, 2018b).

6.  Conclusion It is now almost 60 years since the Indonesian Army seized control of the state and then wiped out the hugely popular Indonesian Communist Party in a bloodbath that ended the lives of approximately half a million unarmed citizens. It is more than 20 years since Indonesians took to the streets, demanding an end to the military’s New Order and justice for the many crimes committed against civilians during its 30-​year reign, including for the mass violence of 1965–​1966. Despite an initial period of democratic reform (1998–​2000) and the promise of justice, the years since then have seen Indonesia slide gradually backward toward authoritarianism and the likelihood of redress for state-​led atrocities fade into nothingness. The 2012 Komnas HAM report, which provided substantial evidence of numerous crimes against humanity perpetrated by state agents and their proxies in 1965–​1966, was a landmark achievement in many ways. It refuted the military’s own version of events, and instead laid the blame squarely on the Indonesian Army leadership for its role in coordinating and carrying out the murders, exterminations, torture, sexual violence, and the many other forms of widespread violence perpetrated systematically against Communists in the aftermath of the October 1, 1965 coup.

58 The International Peoples’ Tribunal for 1965 was a non-​ binding peoples’ court, held in the Netherlands as an attempt to secure some form of symbolic justice for the victims of 1965–​66, and to demand acknowledgement of these crimes from the Indonesian state. On the Tribunal, the indictments, the evidence presented, and the outcomes see Final IPT Report and Wieringa, Melvin and Pohlman (2019). 59  Final IPT Report.

Crimes against Humanity in Indonesia (1965–1966)    847 Nothing has come of the 2012 Komnas HAM report, just as nothing has come of the half-​ hearted and disingenuous promises made by successive administrations since 1998 to deal with past atrocities in Indonesia (Pohlman, 2016c). The Indonesian state has clearly chosen to dig a hole and bury the past, and so investigations into the dark places of Indonesia’s history must also be buried. As time goes on, and despite the best efforts of civil-​society groups, hope that things will change fades. Those directly involved in the 1965–​1966 violence are rapidly passing away. The perpetrators have lived their lives with complete impunity for their crimes. The survivors will live out the rest of their days without justice.

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850    Jess Melvin and Annie Pohlman Pohlman, A. (2016c) “A Year of Truth and the Possibilities for Reconciliation in Indonesia.” Genocide Studies and Prevention 10(1), pp. 60–​78. Pohlman, A. (2017) “Sexual Violence as Torture: Crimes against Humanity during the 1965–​66 Killings in Indonesia.” Journal of Genocide Research 19(4), pp. 574–​593. Pohlman, A. (2019) “Sexual Slavery, Enforced Prostitution, and Forced Marriage as Crimes against Humanity during the Indonesian Killings of 1965–​66.” In: Wieringa, S.E., Melvin, J., and Pohlman, A. (eds.) The International People’s Tribunal for 1965 and the Indonesian Genocide. London: Routledge, pp. 96–​114. Pohlman, A. (2020) “No Place to Remember: Haunting and the Search for Mass Graves in Indonesia.” In: Hubbell, A., Rojas-​Lizana, I., Akagawa, N., and Pohlman, A. (eds.) Transcultural Narratives and Places of Trauma. Cham: Palgrave Macmillan, pp. 61–​82. Pohlman, A. (2021) “Torture Camps in Indonesia, 1965–​70.” In: Wilson, S., Twomey, C., and Cribb, R. (eds.) Detention Camps in Asia. Brill (forthcoming). Power, T. (2018) “Jokowi’s Authoritarian Turn and Indonesia’s Democratic Decline.” Bulletin of Indonesian Economic Studies 54(3), pp. 307–​338. Prakoso, R., Sihite, E., Marhaenjati, B., and Novialita, F. (2012) “AGO Rejects Komnas HAM Report on 1965 Massacres.” The Jakarta Globe, November 10. Available at: www.thejakartaglobe.com/​archive/​ago-​rejects-​komnas-​ham-​report-​on-​1965-​massacres/​. (Accessed December 12, 2012). Roosa, J. (2006) Pretext for Mass Murder: The September 30th Movement and Suharto’s Coup D’Etat in Indonesia. Madison: University of Wisconsin Press. Roosa, J. (2008) “The Truths of Torture: Victims’ Memories and State Histories in Indonesia.” Indonesia 85, pp. 31–​49. Roosa, J. (2016) “The State of Knowledge about an Open Secret: Indonesia’s Mass Disappearances of 1965–​66.” The Journal of Asian Studies 75(2), pp. 281–​297. Ryter, L. (1998) “Pemuda Pancasila: The Last Loyalist Free Men of Suharto’s New Order?” Indonesia 66, pp. 45–​73. Saul, B. (2009) “Prosecuting War Crimes at Balibo under Australian Law: The Killing of Five Journalists in East Timor by Indonesia.” Sydney Law Review 31(1), pp. 83–​120. Setiawan, H. (2020) Buru Island: A Prison Memoir. Victoria: Monash University Publishing. Setiawan, K. (2016) “From Hope to Disillusion: The Paradox of Komnas HAM, the Indonesian National Human Rights Commission.” Bijdragen tot de Taal-​, Land-​en Vokenkunde 172(1), pp. 1–​32. Setiawan, K. (2018a) “Between Law, Politics and Memory: The Indonesian National Commission on Human Rights (Komnas HAM) and Justice for Past Human Rights Crimes.” Australian Journal of Asian Law 19(1), pp. 1–​14. Setiawan, K. (2018b) “Jokowi Is Not Fooling Anyone with Latest Nod to Victims of Rights Abuses.” Indonesia at Melbourne, June 4. Available at: https://​indonesiaatmelbourne.unimelb.edu.au/​ jokowi-​not-​fooling-​anyone-​with-​latest-​nod-​to-​rights-​victims/​ (Accessed: October 4, 2019). Simpson, B. (2008) Economists with Guns: Authoritarian Development and U.S.-​Indonesian Relations, 1960–​1968. Stanford, CA: University of Stanford Press. Siregar, M.R. (1993) Tragedi Manusia dan Kemanusiaan: Kasus Indonesia, Sebuah Holokaus yang Diterima Sesudah Perang Dunia Kedua. The Hague: Tapol. Suh, J. (2016) “The Suharto Case.” Asian Journal of Social Science 44, pp. 214–​245. Sukartiningsih, J. (2004) “Ketika Perempuan Menjadi Tapol.” In: Roosa, J., Ratih, A., and Farid, H. (eds.) Tahun yang tak Pernah Berakhir: Memahami Pengalaman Korban ’65. Jakarta: ELSAM, TRuK and ISSI, pp. 87–​112.

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CHAPTER 35

Crimes Against Huma ni t y and Transitiona l J u st i c e in Ethiopia (1935 –​2 02 0) Thijs B. Bouwknegt and Tadesse Simie Metekia 1.  Introduction The coming time in Ethiopia will be a time of love and forgiveness. We desire our country to be one of justice, peace, and freedom and where its citizens are interconnected with the unbreakable chord of humanity and brotherhood. —​Ethiopian Prime Minister Abiy Ahmed1

In spring 2018, following several years of government repression, protests, and a state of emergency, Ethiopia embarked on a journey of transformation. Peace was made with Eritrea, thousands of political prisoners were released, and the internet was unlocked. Pledges were made to confront torture by former officials. What happened was a cautiously orchestrated regime change from within the ruling party, the Ethiopian People’s Revolutionary Democratic Front (EPRDF). A whirlwind of transition seemingly whooshed through the country. But there were also concerns about rapid shifts of power and reforms announced by Prime Minister Abiy Ahmed. Shortly into his premiership, however, deep-​ rooted enmities and ethno-​political animosities reemerged. By summer, Ethiopia saw waves of ethnic and intercommunal violence throughout several states of the federal republic. By the end of 2018, hundreds of people were killed and over two million had been displaced.2 1  Ahmed, A. (2018) Acceptance Speech. In: Full English Transcript of Ethiopian Prime Minister Abiy Ahmend’s Inaugural Address. Translated by: Hussein, H. Available at: https://​www.opride.com/​2018/​04/​ 03/​english-​partial-​transcript-​of-​ethiopian-​prime-​minister-​abiy-​ahmeds-​inaugural-​address/​. (Accessed: February 24, 2020). 2  Human Rights Watch (2019) World Report: Events of 2018. Available at: https://​www.hrw.org/​world-​ report/​2019#. (Accessed: February 27, 2020).

854    Thijs B. Bouwknegt and Tadesse Simie Metekia Some reports spoke about ethnic cleansing.3 Over the past century, Ethiopia had experienced several similar instances of atrocity crimes. This chapter details atrocity crimes in different temporal, political, and socio-​economic contexts throughout Ethiopian history by discussing causes, actors, victims, and harm done. Furthermore, we elaborate on Ethiopia’s—​as well as other states’—​response to mass atrocity crimes and find that Ethiopia has been spearheading trends in transitional justice since 1936. Ethiopia, a land-​locked, densely populated, ethnically heterogeneous, agrarian, centrally governed, yet federal republic in the Horn of Africa (Uhlig et al., 2017), is a neglected case study of mass atrocity violence and transitional justice (Tronvoll et al., 2009; Tessema, 2018). Ethiopia was never colonized in the past 2,500 years and presents a remarkable example of sui generis. It has defined atrocity crimes on its own terms and conducted numerous domestic atrocity crime prosecutions. We show that within this unique context, the crimes against humanity concept is the most viable, and context relevant, framework through which to perceive, understand, and explain recent and remote historical mass atrocity violence in Ethiopia. We will do so by exploring and exposing the historical contours of mass violence that could amount to atrocity crimes since 1935. Whereas scholarship has so far rather focused on mass atrocity violence and transitions in more reachable post-​ colonial African contexts, such as Nigeria, Rwanda, and Sudan (Straus, 2015; Stapleton, 2017; Moses and Heerten, 2018), this research seeks to add comparative depth to scholarly understanding of the dynamics of crimes against humanity and transitional justice in a non-​colonial environment.

2.  Crimes Against Humanity Crimes against humanity [ . . . ] such as genocide, summary executions, forcible disappearances or torture shall not be barred by statute of limitation. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ. —​Constitution of Ethiopia4

While employing Ethiopian and international criminal law, we operationalize crimes against humanity as a conceptual umbrella expression for international atrocity “crimes” (Scheffer, 2006). We also include social-​scientific concepts such as ethnic cleansing (Mann, 2005), politicide (Harff, 1988), and mass-​categorical violence (Straus, 2015). We do so to tie together legal rubrics like genocide, crimes against humanity, war crimes, aggression, and non-​legal rubrics (Zwaan, 2003). These categories could be applied interchangeably, in parallel, or alternatively, to study, describe, and understand the real-​time context of mass

3  “The Promise and Peril of Ethiopia’s Democratic Revolution: A Dilemma in the Horn of Africa.” (2018) The Economist, December 8. Available at: https://​www.economist.com/​middle-​east-​and-​africa/​ 2018/​12/​08/​the-​promise-​and-​peril-​of-​ethiopias-​democratic-​revolution (Accessed: October 30, 2019). 4  Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No. 1/​1995 (entered into force August 21, 1995) (Constitution), art. 28.

Crimes Against Humanity and Transitional Justice    855 atrocity violence (Mamdani, 2007). Sociologically, mass atrocity violence is characterized by its “unimaginable” (Schabas, 2012), unusual, systematic, and universally unsettling nature (De Swaan, 2015). Atrocity crimes take place in specific sociopolitical, violent situations (Gerlach, 2010; Karstedt, 2012) and are systematically targeted at civilians over a protracted period (Straus, 2015; Üngor, 2016). Mass atrocity crimes involve larger groups of perpetrators and victims, encompass diverse performances of violence, committed with dissimilar motives, in specific contexts. Such crimes are targeted at differentiated groups or individuals (Sands, 2016; Straus, 2016). Common triggers for “large-​scale, systematic violence against civilian populations” include radical changes in climate,5 demography, economy,6 security, polity, or identity,7 while the context often is conflict, war, insurgency, state repression,8 revolution, or a state of terror.9 Ethiopia, as will be discussed, has faced each of these circumstantial elements at different times, and each in some way animated atrocity violence and crimes against civilians. In order to capture these various episodes of remote and recent historical injustices, it is analytically helpful to apply the atrocity crimes lexicon (De Baets, 2011), even if that is done anachronistically (Madley, 2016). Ethiopian law is in that sense particularly helpful, since it defines mass atrocity crimes as “crimes against humanity.” What realities underlie these legal rubrics that describe real-​time atrocity violence? What do they mean? And how are they understood in Ethiopia? Our discussion starts with genocide. Oftentimes, this label is operationalized in describing mass atrocity violence in Ethiopia. Genocide is sociologically understood to be a predetermined, group-​discriminatory destructive process (“mass categorical atrocity violence,” Straus, 2015, p. 17). Initially conceived as “the destruction of a nation or of an ethnic group” (Lemkin, 1944, p. 79), genocide in legal terms means killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures intended to prevent births, and/​or forcibly transferring children “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”10 Although in Raphael Lemkin’s seminal work that coined the term “genocide,” “the international outrages in Ethiopia” were solely mentioned in a footnote (Lemkin, 1944, p. 115, note 34), Ethiopia was a leading protagonist of the Genocide Convention. On July 1, 1949, Ethiopia was the first country to ratify the UN Convention on the Prevention and Punishment of the Crime of Genocide. However, in 1957, Ethiopia modified the wording of the international convention in its national legislation, and the Penal Code proscribed genocide and equaled it with crimes against humanity (the respective crime was called “Genocide; crimes against humanity”).11 Moreover, Ethiopia addressed one of the main 5 

See Chapter 22 by Daan van Uhm in this volume. See Chapter 7 by Kieran Mitton in this volume. 7  See Chapter 6 by Jolle Demmers in this volume. 8  See Chapter 8 by Maartje Weerdesteijn in this volume. 9  United Nations (2014) “Framework of Analysis for Atrocity Crime. A Tool for Prevention.” Available at: https://​www.un.org/​en/​genocideprevention/​documents/​about-​us/​Doc.3_​Framework%20of%20 Analysis%20for%20Atrocity%20Crimes_​EN.pdf. (Accessed: March 1, 2020). 10  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention), art 2. 11  The Penal Code Proclamation of 1957 (adopted July 23, 1957, entered into force May 5, 1958) (1957 Penal Code), art. 281. The crime was defined as: “Whosoever, with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, organizes, orders or engaged in, be it in time of war or 6 

856    Thijs B. Bouwknegt and Tadesse Simie Metekia limitations of the Genocide Convention (Weiss-​Wendt, 2017) by also protecting political groups.12 As such, genocide as defined in Ethiopian law explicitly included a crime excluded in international criminal law, namely “politicide” (Tessema, 2018). In 2004, Ethiopia further updated its characterization of genocide, which, together with war crimes, is under Ethiopian law falling under the umbrella term “crimes against humanity.” It added a set of protected groups and included also nations, nationalities, and color groups. Furthermore, not only the intent to destroy the enumerated groups, but also “causing them to disappear” was inserted into the legal definition of genocide in the Ethiopian Criminal Code.13 As far as we are aware, Ethiopia has one of the most inclusive definitions of genocide in Africa and globally. Crimes against humanity, a term which gained momentum in the context of atrocities against natives in Congo Free State (Washington Williams, 1890), commonly embodies assaults against shared humanistic features and values (Geras, 2011). In contrast to the Ethiopian law, which uses crimes against humanity as an overarching category for genocide and war crimes, crimes against humanity are in international criminal law and atrocity scholarship considered a separate category of atrocity crimes, separate from genocide and war crimes. Crimes against humanity are broadly considered as heinous and grand attacks on the qualities of being human, or the notions of humanness, human dignity, or humankind as a whole.14 In the absence of its own Convention, we understand the phenomenon as imprescriptible,15 systematic, widespread, policy-​based, deliberate, and inhumane acts16 perpetrated against any human population. Although genocide and crimes against humanity can have overlapping contextual grounds and aims (violating fundamental features of being human), they do not necessarily exclude their parallel perpetration. However, the category of crimes against humanity provides a broader framework than genocide that can capture more acts, events, or policies (like ethnic cleansing) and is not limited to intended group-​ oriented destruction (Straus, 2016). In Ethiopia, where, legally, crimes against humanity actually encompass genocide, crimes against humanity may also have a discriminatory

in time of peace: (a) Killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or (b) measures to prevent the propagation or continued survival of its members or their progeny; or (c) the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance.” 12 

1957 Penal Code, art. 281. Criminal Code of the Federal Democratic Republic of Ethiopia 2004, Proclamation No.414/​ 2004 (entered into force May 9, 2005) (2004 Criminal Code), art. 44, 269. 14  ILC, First Report on Crimes against Humanity (17 February 2015) UN Doc A/​CN.4/​680. 15  Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, (adopted November 26, 1968, entered into force November 11, 1970) A/​RES/​2391(XXIII). 16  Between the International Military Tribunals in 1945 and the Kosovo Specialist Chambers (KSC) in 2018, crimes range from murder, extermination, enslavement, deportation, persecution, forcible transfer of populations, torture, sexual violence, enforced disappearance to Apartheid. See: International Military Tribunal in Nuremberg (IMT, 1945), International Military Tribunal for the Far East (IMTFE, 1945), International Criminal Tribunal for former Yugoslavia (ICTY, 1993), International Criminal Tribunal for Rwanda (ICTR, 1994), Special Panel for Serious Crimes, East Timor (SPSC, 2000), Special Court for Sierra Leone (SCSL, 2002), Extraordinary Chambers in the Courts of Cambodia (ECCC, 2006), Extraordinary African Chambers, Senegal (EAC, 2015), Special Criminal Court, Central African Republic (SCC-​CAR, 2018), KSC (2018). 13  The

Crimes Against Humanity and Transitional Justice    857 character. This is particularly the case when considering the process of ethnic cleansing. Although not an international crime specified in any of the statutes of international courts and tribunals, ethnic cleansing is part of the mass atrocity violence framework (Scheffer, 2006). This process of forced geographical removal and relocation of civilians and eradication of socio-​cultural traces (Lieberman, 2010) often includes acts, which can also be classified as atrocity crimes, particularly genocide and crimes against humanity. Some have argued that by including in its definition of genocide the “forceful transfer of ‘peoples,’ ” ethnic cleansing can be classified as genocide in Ethiopia, and thus understood as a sub-​ category of crimes against humanity (Tessema, 2018, p. 79). In practice of Ethiopian courts, however, this was not the case. Rather, such instances of forceful transfer of “peoples” were treated as a crime of “attack on the political or territorial integrity of the State.”17 Like genocide, “war crimes against the civilian population” are understood in Ethiopia to be a sub-​category of crimes against humanity. In contrast to genocide, however, conventional international war crimes are not per se group-​selective, or necessarily directed against civilians. Ethiopian criminal law categorizes war crimes into different groups.18 The acts against civilians broadly cover acts, which the Rome Statute defines as crimes against humanity and war crimes. While it excludes the crimes against humanity of extermination and apartheid, Ethiopia’s 2004 Criminal Code adds devaluation of currency, denationalization, forcible religious conversion, and terror as additional acts against civilians falling under the umbrella term of crimes against humanity. Closely related to war is the crime of aggression: the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state (de Hoon, 2018). Although aggression is not criminalized as such under Ethiopian law,19 this crime, as part of a joint criminal corporate enterprise between European powers, was arguably widely perpetrated during the colonization of Africa in the late 1800s, including against Ethiopia. Arguably, Ethiopia was well ahead of its time in defining and criminalizing atrocity crimes in its domestic law. In effect, Ethiopian lawmakers and courts have continuously and consciously formulated crimes against humanity as a more descriptive and overarching label for a whole set of mass atrocity crimes.20 De facto and de jure, in Ethiopia therefore the concept of crimes against humanity is synonymous to atrocity crimes and is more inclusive than elsewhere. In light of its changeability, this chapter uses crimes against humanity

17  2004

Criminal Code, art. 241; See also for example: Federal Prosecutor v. Waltajji Begalo et al., (Judgement of Federal High Court) File No. 136639 (26 February 2015). 18  The categories include: (i) war crimes against wounded, sick, shipwrecked persons, or medical services; (ii) war crimes against prisoners and interned persons; (iii) pillage; piracy and looting; (iv) dereliction of duty towards the enemy; (v) use of illegal means of combat, and (vi) franc-​tireurs. See 1957 Penal Code, art. 270, 271, 273, 275, 277, 278, and 281. 19  Although, Article 246 of the 2004 Criminal Code defines “Attacks on the Independence of the State” as acts “intended to: (a) jeopardize or destroy the independence of the State; or (b) provoke intervention by a foreign State in the national affair, calculated to endanger its independence; or (c) initiate hostile acts by a foreign State against the Nation, or to involve it in a foreign war, hostilities, a blockade or occupation.” 20  Indeed, during discussion on the draft provisions of the 1995 Constitution, the expressivist use of “crimes against humanity” was questioned by constitutional committee members who argued the expression does not mirror international criminal law. In that sense, by keeping “crimes against humanity” in the Constitution, the committee implied that the term’s use was a conscious choice.

858    Thijs B. Bouwknegt and Tadesse Simie Metekia as (1) an overall category of atrocity crimes as defined in Ethiopian law, (2) crimes against humanity as defined in the Rome Statute,21 and (3) a socio-​historical concept. In our factual discussion on mass atrocity violence below, we add to this broad set of crimes against humanity factual processes like mass starvation (de Waal, 2018).

3.  Causes, Actors, and Victims Distinct episodes of mass atrocity violence in Ethiopia between 1935 and 2019 can be divided in three periods. First, we discuss violence that happened during the Imperial period and the Italian occupation (1916–​1974). Then, we turn to the Cold War period, during which the Dergue’s rule (1974–​1991) is emblematic for various types of crimes against humanity and politicide. Third and last, we sketch patterns of atrocity violence committed in Ethiopia between 1991 and 2020.

3.1 Colonial violence I repeat my authorization to Your Excellency to initiate and systematically conduct a policy of terror and extermination. —​Mussolini to Graziani22

From 1884, when European powers scrambled for and partitioned Africa, imperialist atrocities of aggressive colonization and occupation persisted through the entire continent (Jonassohn and Björnson, 1998). However, Ethiopia was the exception. For centuries, the empire had remained out of reach of European intrusion and rose to infamy as Africa’s unconquerable lion when it defeated Italian aggression at Adwa in 1896 (Milkias and Metafaria, 2005). From the 1930s until 1974, Ethiopia’s last Emperor, Haile Selassie I, held absolute power while also participating on the international stage, including at the League of Nations and the United Nations. Meanwhile, fascist leader Benito Mussolini desired Lebensraum and set his mind to adding Ethiopia to Italy’s colonial sphere of influence in the Horn of Africa (which by then included Eritrea, Libya, and Somaliland) (Baer, 1967). However, Ethiopia was a sovereign state and an early member of the League of Nations, so there was neither justification nor lawful reason (under the League of Nations Covenant) to launch an aggressive attack. Nonetheless, the British and French appeasement politics toward the Axis Powers allowed Mussolini to pursue conquest outside Europe. On October 3, 1935, Italian forces invaded Ethiopia, indiscriminately targeting Ethiopians by bringing into play “weapons of mass destruction” (Pankhurst, 1999): tanks, machine guns, flame-​throwers, and an air force equipped with chemical weapons. Once dubbed the “Rape of Ethiopia,” the invasion and

21  Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute), Art. 7. 22  Quoted in: Campbell, 2017, p. 351.

Crimes Against Humanity and Transitional Justice    859 its subsequent occupation came with a plethora of mass atrocity violence (Barker, 1971). Entire settlements and their inhabitants (civilians) were obliterated. It was a dirty war on all fronts and there was disregard for international conventions, as Red Cross hospitals and ambulances were bombed and war prisoners were executed (Pankhurst, 1999). By May 1936, Haile Selassie was a British exile, and the occupation was accomplished through what today could be labelled a classic example of aggression (Wright, 1936; Baer, 1976). What followed was five years of military rule, exercised by Blackshirt militias, military police, and colonial troops through a policy of widespread and systematic repression, terror, and mass atrocity violence against civilians. Undeniably, and as it had done previously in Libya during its “war of extermination,” Italy inflicted a catalogue of crimes against humanity avant la lettre, including mass detention in concentration camps, deportation, rape, abuse, gassing, murder, and massacres (Barker, 1971). Mass graves filled up as traditional storytellers (oral historians), Orthodox deacons and monks, and intelligentsia were persecuted and massacred by the fascists (Del Boca, 1969; Mattioli, 2005; Campbell, 2014). All was done with total impunity, a carta bianca. Emblematic of Italy’s atrocities against Ethiopians was the Addis Ababa massacre, a three-​ day bloodbath in Addis Ababa from February 19 to 21, 1937. The massacre, which started as a response to the grenade attack on Rodolfo Graziani, the Italian Viceroy in Ethiopia, was carried out by the Blackshirts, the regular army, and the Carabinieri. The orders came from Rome and Italian officials in Addis Ababa (Campbell, 2017). In this massacre, the Italian forces and Blackshirts armed with rifles, pistols, bombs, and flame-​throwers “cleaned up” approximately 6,000 Ethiopians (Jonassohn and Björnson, 1998, p. 344). But the Addis Ababa massacre is just one of the several violent incidents during the Italian occupation in Ethiopia. One may add the massacre of Debre Libanos to the list of atrocities, where, on May 20, 1937, at least 297 monks were murdered in the Debre Libanos monastery by the order of Graziani (Campbell, 2014). The Italian invasion and military occupation of Ethiopia was in fact replete with the perpetration of violent and systematic atrocities. By the time the invasion became a military occupation in 1937, Italy had already put in play a policy of terror and extermination of Ethiopians. Evidently, in a secret letter sent to Graziani on July 8, 1936, Mussolini repeated his authorization to the Viceroy to initiate and systematically conduct such a policy (Campbell, 2017). By the time Italy’s occupation ended in 1941, some 760,300 Ethiopians had been killed (Del Boca, 1969; Mattioli, 2005).

3.2 Communist violence Our enemies planned to eat us for lunch, we ate them for breakfast. —​Haile Mariam Mengistu23

With the Italian World War II aggression, crimes against humanity, and war crimes left unadjudicated and deposited in history books, Ethiopia was plagued by myriad domestic and regionalized armed conflicts. Violence peaked between 1974 and 1991; at least four

23 

Quoted in Tessema, 2018, p. 40.

860    Thijs B. Bouwknegt and Tadesse Simie Metekia deadly wars were fought between the government and liberation movements from Tigray, Eritrea, Ogaden, and Oromo (Straus, 2015). From the early 1970s, Ethiopians had become increasingly dissatisfied with Haile Selassie’s patronage and economic policies. Famine and subsequent protests against the old regime’s policies sparked mutiny that led to the Emperor’s downfall in 1974 and the ascent of a Marxist-​Leninist military junta: the Provisional Military Administration Council of Ethiopia, or the Dergue (Zewde, 2001). Led by Haile Mariam Mengistu, the Dergue first eliminated the Imperial state structures, killed its officials, and then moved to target “counter-​revolutionaries”—​virtually anyone opposed to the Dergue (Tessema, 2018). At the same time, Eritrean insurgency in the north and a looming invasion from Somalia in Ogaden radically militarized the Dergue’s policies, which turned into suppression of civilian populations in the cities (Tiruneh, 1993). Particularly, members of, or people associated with, competitive urban socialist movements, which were politically organized, became targets of political violence (Bouwknegt, 2018). People associated with the Ethiopian People’s Revolutionary Party (EPRP), which favored civilian governance and were not opposed to secession of national groups from Ethiopia, became the Dergue’s “enemy of the people” and prime target—​particularly in the urban areas—​of a state policy of mass execution (Wiebel, 2015). The kushuk campaign—​ which included internal purges, torture, mass arrests, disappearances, and mass executions of numerous students, intellectuals, and peasants—​ increased opposition to the Dergue and triggered a situation described as guerrilla-​style urban warfare (White Terror). “Crushing” this resistance became a state policy from September 1976, when Mengistu announced the Red Terror (Qey Shibir in Amharic). In essence, the Red Terror implied a carte blanche (Netsa irmija) for security forces (Tsetita), intelligence services (Mereja), militia and civilian Revolutionary Defense Squads (through Kebeles (lower administrative units) and peasant organizations) to liquidate “counter-​ revolutionaries” by imposing “revolutionary actions” (Tiruneh, 1993; Tessema, 2018). There was a specific dynamic in the violence. It started with targeted arrests, torture, and murder of dissidents during razzias, as well as secret mass executions by firing squads. From February 1977, however, the public was incited to perpetrate violence against all counterrevolutionaries. House-​to-​house arrests became a daily event; massacres were carried out publicly; torture—​ including sexual and gender-​based violence—​was normalized; and victims’ corpses were displayed in the streets or sold back to their loved ones (Tessema, 2018). In eight months, during the peak of mass atrocity violence, 3,000 to 4,000 people are estimated to have been killed in Addis Ababa alone. Elsewhere—​in Jimma, Dire Dawa, Tigray, Bale, Gondar, and Sidamo—​thousands were arrested or uprooted. From November 1977 to mid-​1978, the Red Terror finished off the remaining EPRP remnants and sympathizers, but also its former allies, although now less publicly. In fact, the violence intensified but it was moved to prison centers in the outskirts of cities, out of sight. When the carnage, which some authors (Kissi, 2006) have put on par with the Khmer Rouge’s atrocities in Cambodia, ended, the revolution had swallowed nearly a whole generation of young Ethiopian intellectuals. At least 9,546 people were killed during these campaigns of political cleansing in Ethiopia’s main cities (Tiba, 2013). By the end of 1978, approximately 400,000 political detainees were in prison. Until 1991, when the Dergue was ousted, the terror was downscaled but persecution persisted. The Red Terror was classified in criminal trials as genocide (see later), which, as we elaborated earlier, constitutes in Ethiopia a sub-​category of crimes against humanity.

Crimes Against Humanity and Transitional Justice    861 But the terror spree and mass killing of real and perceived opponents in a campaign, which some authors have described as politicide (Tessema, 2018), was not the only mass atrocity taking place under the Dergue. At the height of Cold War atrocities in the so-​called Third World (Chamberlain, 2018), a dangerous vacuum for ethnic, ideological, and secessionist politics was also opened with the fall of Haile Selassie. The year 1974 marked a turning point in Ethiopian history. At the porous borders, Somalia, with support from the United States of America, posed a real military threat. Meanwhile, the brutal insurgencies in Eritrea and Tigray were peaking (Young, 1997). Mengistu chose violence over diplomacy to militarily crush the rebellious groups. Both state and non-​state actors were involved in ethnic and sectarian atrocities, including mass killings. But civilians suffered the most from the Ethiopian army’s operationalization of terror, hunger, and demoralization. Villages were burned or indiscriminately bombarded, markets destroyed, and relief-​aid cut off. Throughout the 1980s the infamous signature atrocity became the creation of famine and manipulation of life aid (Tiruneh, 1993). Whereas famines were common in the farm-​based economy of Ethiopia, this time it was not drought or climate change that caused mass starvation, it was the state’s policy to use hunger as a weapon of war (Alvarez, 2017). Alex de Waal (2017, p. 140) argues that the death of 600,000 Ethiopians by hunger was the result of a “second-​degree famine crime.” Among other things, the army’s response to the insurgences included denial of food aid, destruction of crops, looting of surplus grains and livestock, blocking supply roads to uncontrolled areas, destroying open markets and food stores, and disrupting entire structures of traditional commerce. It has been argued that Mengistu’s widespread and systematic “intentional starvation” was part of a genocidal attempt to starve the Eritrean people into submission (Zeiler, 1989). Most certainly it was a crime against humanity. One of the motives of this mass starvation was to depopulate rebel-​held areas. Another tactic used by the Dergue was forced resettlement under the guise of a famine relief plan. Up until 1985, about 600,000 people were relocated from northern areas to the south, using food and shelter to entice populations to migrate. During this veritable ethnic cleansing, another 100,000 people lost their lives. Altogether, the civilian death toll during the Dergue’s entire reign reaches nearly 1.5 million as a mixed outcome of its purges, politicide, radical campaigns of collectivization, forced resettlement, state-​orchestrated famine, and aerial bombings.24 Some of these atrocities, in particular the aerial bombings, were tried by Ethiopian courts as war crimes against civilians (see later).

3.3. Ethnic violence In 1991, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of four ethnically defined organizations, came to power by force. In the face of the atrocities’ past and its devastating effect on Ethiopia’s political, economic, and social fabric, the new regime introduced a system of “ethnic” or “multinational” federalism (Prunier and Ficquet, 2015). After the transition years, the new Constitution established the Federal Democratic Republic of Ethiopia (FDRE) in 1995. While it was founded upon a promise of non-​ repetition of violence,25 atrocity violence and war did not disappear.

24  25 

Africa Watch (1991) Evil Days. 30 Years of War and Famine in Ethiopia. New York: Africa Watch. Constitution, paras. 1,4,6.

862    Thijs B. Bouwknegt and Tadesse Simie Metekia Since 1991, war, ethnic violence, and political repression continued to plague Ethiopia. Until the transition of 2018, mass atrocity violence, including by the state, continued unabated (Prunier and Ficquet, 2015). Prime Minister Abiy’s new government, inaugurated in 2018, officially admitted that state sponsored acts of terrorism through acts of torture have been committed against the Ethiopian people in the past 27 years, implicating all levels of government (federal, regional, zonal). This admission of state criminality roughly implies violations under Ethiopia’s Constitution, Criminal Code, and the Convention against Torture,26 to which Ethiopia has been party since 1994. Alongside state violence, Ethiopia was involved in at least two international conflicts. Apart from continuing tensions with Somalia, the war with Eritrea was particularly deadly. Sparked by a battle for control of a border market town, the two-​year conflict (1998–​2000) left tens of thousands dead or injured until the two sides signed a peace deal in December 2000. The Eritrean-​Ethiopian War had a dramatic impact on both rural and urban livelihoods in Eritrea and the regional state of Tigray in northern Ethiopia, the most war-​affected region in the country (Tronvoll, 2009). Finally, against a background of political violence and international war, ethnic violence, “ethnic cleansing,” and genocide occurred in various parts of Ethiopia (Bulcha, 2005),27 which is said to be the result of the state’s ethnic federalism (Atnafu, 2017; Atnafu, 2018). In what follows we highlight several episodes of mass atrocity violence since the 1990s. The first instance concerns ethnic violence in Gambella, where long-​simmering ethnic tensions left hundreds dead and thousands homeless. A boiling point was reached in December 2003, which saw the Ethiopian National Defense Forces (ENDF), who were joined by local people from highland areas, unleash a three-​day rampage during which at least 416 Anuak people were massacred.28 In the months that followed, Ethiopian military forces subjected Anuak communities throughout the region to widespread and systematic acts of murder, rape, torture, arbitrary imprisonment, and the destruction of entire villages. While there have been regular massacres of Anuak since 1980, this time—​from December

26  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (adopted December 10, 1984, entered into force June 26, 1987)1465 UNTS 85 (CAT). 27  Human Rights Watch (2008) Collective Punishment: War Crimes and Crimes Against Humanity in the Ogaden Area of Ethiopia’s Somali Region. Available at: https://​www.hrw.org/​report/​2008/​06/​12/​ collective-​punishment/​war-​crimes-​and-​crimes-​against-​humanity-​ogaden-​area-​ethiopias (Accessed: October 30, 2019); Amnesty International (2014) “Because I am Oromo’: Sweeping Repressing in the Oromia Region of Ethiopia. Available at: https://​www.amnesty.org/​download/​Documents/​4000/​ afr250062014en.pdf (Accessed: October 30, 2019); Human Rights Watch (2005) Ethiopia: Crimes Against Humanity in Gambella Region: Army Impunity and Official Inaction Fuel Abuses. Available at: https://​ www.hrw.org/​news/​2005/​03/​23/​ethiopia-​crimes-​against-​humanity-​gambella-​region (Accessed: October 30, 2019); Human Rights Watch (2005) Targeting the Anuak: Human Rights Violations and Crimes against Humanity in Ethiopia’s Gambella Region. Available at: https://​www.hrw.org/​report/​2005/​03/​23/​targeting-​ anuak/​human-​rights-​violations-​and-​crimes-​against-​humanity-​ethiopias (Accessed: October 30, 2019). 28 Human Rights Watch (2005) Ethiopia: Crimes Against Humanity in Gambella Region: Army Impunity and Official Inaction Fuel Abuses. Available at: https://​www.hrw.org/​news/​2005/​03/​23/​ethiopia-​ crimes-​against-​humanity-​gambella-​region (Accessed: October 30, 2019); Human Rights Watch (2005) Targeting the Anuak: Human Rights Violations and Crimes against Humanity in Ethiopia’s Gambella Region. Available at: https://​www.hrw.org/​report/​2005/​03/​23/​targeting-​anuak/​human-​rights-​violations-​ and-​crimes-​against-​humanity-​ethiopias (Accessed: October 30, 2019).

Crimes Against Humanity and Transitional Justice    863 2003 to May 2004—​more than a thousand people were killed, while between 3,000 and 5,000 additional Anuak refugees have fled into Sudan.29 Our second example concerns electoral violence in 2005. Although preceded by a relatively free and open public debate between the dominant party and the opposition parties, the elections ended in sharp disagreement, controversy, and massive repression of popular protest in the post-​election phase (Abbink, 2006). There were little tensions and no mention of ethnic strife in the lead-​up to the elections until May 5, 2005, when Ethiopia’s prime minister accused the opposition of fomenting ethnic hatred that could erupt into violence while raising the image of the Rwandan Interahamwe militia as something that the opposition might emulate (Abbink, 2006). The opposition accused the government of rigging the election results and, in response, students took it to the streets and taxi drivers held strikes in Addis Ababa. But as the government gave orders to suppress it at any cost, special armed units (Ag‘azi), the police, and the military responded to the protests with excessive violence, killing, wounding, and arresting unarmed civilians who were identified with the opposition (Abbink, 2006). In the election riots, at least 36 people were killed and 3,000 detained in Addis Ababa alone (Teshome-​Bahiru, 2010). Thereafter, the violence and the killings also spread to various provinces, leading to more arrests and deaths. Like in Gambella, there have been bursts of violence in neighboring Benishangul-​Gumuz State (B-​G region). Animosities among Bertha, Gumuz, Amhara, Oromo, and Tigray ethnic groups have escalated several times. In a notorious outburst in May 2008 over controlling land and markets, serious clashes broke out between Gumuz and Oromo settlers in Wollega, killing more than 130 people from both sides and displacing thousands.30 In 2013, more than 3,000 ethnic Amharas were injured, killed, and forcefully evicted from Benishangul Gumuz.31 Again, in the wake of the 2015 protests of Oromo students, more than 600 were killed by security forces, thousands injured, and tens of thousands arrested. In 2018, in the same areas, ethnic violence was again reported in B-​G region. Fighting between rival ethnic groups displaced some 70,000 people in the region, while killings continued.32 In other regions, too, including in Addis Ababa, ethnic violence, often perpetrated by armed civilians, took place throughout the country. Forced displacement occurred on an unprecedented scale from September 2017 to May 2018, when around 1.1 million people were displaced due to ethnic conflicts between the Somalis and the Oromos in the eastern and southern parts of the country.33

29  Human Rights Watch (2005) Targeting the Anuak: Human Rights Violations and Crimes against Humanity in Ethiopia’s Gambella Region. Available at: https://​www.hrw.org/​report/​2005/​03/​23/​targeting-​ anuak/​human-​rights-​violations-​and-​crimes-​against-​humanity-​ethiopias (Accessed: October 30, 2019). 30  “Hundred Killed During Clashes between Gumuz and Oromos in Ethiopia.” (2008) Sudan Tribune, May 24. Available at: https://​www.sudantribune.com/​Hundred-​killed-​during-​clashes,27265 (Accessed: March 5, 2020). 31  Federal Prosecutor v. Waltajji Begalo et al. (Judgement of Federal High Court) File No. 136639 (February 26, 2015). 32  “Thousands Flee Ethnic Conflict in Western Ethiopia.” (2018) BBC, October 2. Available at: https://​ www.bbc.com/​news/​world-​africa-​45724440 (Accessed: October 30, 2019). 33  Office for the Coordination of Humanitarian Affairs (2018) Ethiopia: Oromia—​ Somali Conflict-​ Induced Displacement. Available at: https://​reliefweb.int/​sites/​reliefweb.int/​files/​resources/​ethiopia_​-​_​ oromia_​somali_​conflict_​induced_​displacement_​june_​2018c.pdf (Accessed: March 9, 2020).

864    Thijs B. Bouwknegt and Tadesse Simie Metekia This historical overview, detailing several instances of mass atrocity violence, shows that the dynamics and acts of atrocity have had clear features of crimes against humanity, while each separate episode also includes other categories of atrocity crimes, including genocide, war crimes, and aggression. In the next part, we move to a discussion on what has been done to react to, and deal with, these instances in terms of transitional justice.

4.  International and Domestic Reactions . . . until the basic human rights are equally guaranteed to all without regard to race—​until that day, the dream of lasting peace and world citizenship and the rule of international morality will remain but a fleeting illusion, to be pursued but never attained. —​Haile Selassie I34

4.1 War crimes commission In June 1936, at the League of Nations, Emperor Selassie mourned Italy’s “systematic extermination of a nation by barbarous means” involving “death-​dealing rain to kill off systematically all living creatures” and the international community’s “refusal to stop an aggressor.”35 He demanded, “[ . . . ] justice which is due to my people, and the assistance promised to it eight months ago, when fifty nations asserted that aggression had been committed in violation of international treaties.”36 A year later, he bid the League of Nations’ Secretary General to assign a commission of inquiry to “investigate the horrors committed in Ethiopia by the Italian government.”37 But the matter was overshadowed by atrocities in Europe and Southeast Asia. Ethiopia’s call for justice was sidelined. In 1943, when the Axis’ atrocities in Europe were widely reported, Ethiopia was barred by the Allies from the UN War Crimes Commission (UNWCC), which also disregarded Italian delinquencies committed preceding the outbreak of the European war in 1939. As Ethiopia was one of the first to suffer at the hands of the Axis nations, it adhered to the 1945 London Agreement, which laid the groundwork for the Prosecution and Punishment of the Major War Criminals of the European Axis (Jackson, 1945). Selassie hoped for an international court to pursue Italian war crimes, resembling the military tribunals in Nuremberg and Tokyo, which were putting to trial Nazi and Japanese war crimes suspects (Mattioli, 2005).

34 UN General Assembly (1963) “Address by His Imperial Majesty Heile Selassie I, Emperor of Ethiopia 1963”, Eighteenth Session: Official Records. A/​PV.1229*, p. 3. 35  League of Nations (1936) “Emperor Haile Selassie I”, Official Journal, Special Supplement 151, June 30. 36  League of Nations (1936) “Emperor Haile Selassie I”, Official Journal, Special Supplement 151, June 30. 37  UN War Crime Commission (1948) History of the United Nations War Crimes Commission and the Development of the Laws of War, London: HM Stationary Office.

Crimes Against Humanity and Transitional Justice    865 Meanwhile, anticipating the international community’s averseness to try Italians, Ethiopia erected its own War Crimes Commission in 1946,38 which was mandated to assemble evidence of war crimes and bring charges and criminal proceedings against Italian individuals (Pankhurst, 1999). A total of 50 suspects were investigated, and Ethiopia informed the UNWCC that it ascertained ample evidence to bring to trial General Pietro Badoglio for the use of poison gas, and Commander Rodolfo Graziani for crimes against humanity during the 1937 Addis Ababa massacre, as well as eight other Italian officials.39 Although the UNWCC had recognized the cases prima facie, the United Kingdom and France unilaterally waived their backing for Ethiopia’s plans to set up an international Nuremberg-​Tokyo-​styled military panel (Prosperi, 2016). Alternatively, they supported Italy’s national prosecution of Graziani for collaboration with the Germans while Badoglio was deemed too old to stand trial. Both men were never extradited, and Ethiopia reposed its war crimes cases. Instead, as a final act, Ethiopia’s Justice Ministry published the two-​ volume Documents on Italian War Crimes Submitted to the United Nations War Crimes Commission (Pankhurst, 1999). In addition to reproducing official telegrams, circulars, and orders relating to “pacification,” the publication contained witness testimonies of Ethiopians who had seen atrocities, suffered torture, or had been confined in concentration camps. The case was thereafter closed, never to be opened again.

4.2 Atrocity crime trials in Ethiopia [I]‌n some countries in Africa and Latin America a culture of impunity has developed in which dictator governments remain unaccountable for the atrocities they had perpetrated against their own people, which encourages a recurrence of similar atrocities.40

In May 1991, the Dergue was defeated and Mengistu fled into exile to Zimbabwe. Immediately, the Transitional Government of Ethiopia (TGE) arrested up to 2,000 high-​level Dergue officials and civilians had brought in a range of mid-​level officials.41 The following year, the TGE decided to bring Mengistu and everyone affiliated with the Dergue to trial for human rights abuses and created the Special Prosecutor’s Office (SPO). Dubbed by some as the “African Nuremberg” (Ryle, 1995) or “Red Terror Trials” (Toggia, 2012), the SPO jurisdiction covered the whole period of the Dergue’s junta throughout Ethiopia and was to investigate and prosecute “any person having committed or responsible for the commission of an offence by abusing his position in the party, the government or mass organizations under

38 

Ethiopian Imperial Order No. 1784, 20 May 1946. On file with author. Ministry of Justice (1948) “Documents on Italian War Crimes Submitted to the United Nations War Crimes Commissions.” Addis Ababa: Ministry of Justice; The Ethiopian Government also published La civilisation de l’Italie fasciste, containing texts of Fascist telegrams ordering atrocities, the use of poison-​ gas, the mass execution of war prisoners, the shooting of “witch doctors” and “sooth-​sayers,” and the killing of the monks of Debre Libanos (Pankhurst, 1999, p. 124). 40 The 1994 Constitutional Commission, “Minutes,” Vol. II: Ordinary Sessions No 51-​No 88 (2 November 1993 to 3 April 1994) p. 199 [author’s translation]. 41  Human Rights Watch (1994) Ethiopia: Reckoning under the Law. Available at: https://​www.hrw.org/​ report/​1994/​12/​01/​ethiopia-​reckoning-​under-​law (Accessed: October 30, 2019). 39 

866    Thijs B. Bouwknegt and Tadesse Simie Metekia the Dergue-​regime.”42 Moreover, the SPO was also tasked to “establish for public knowledge and for the posterity a historical record of the abuses of the Mengistu regime.”43 During the two years of high-​security investigations, 34 Special Prosecutors amassed a wealth of documentary evidence, including over 309,778 pages of archived Dergue documents and video-​and audiotapes. Due to its abrupt departure, the Dergue had left abundant evidence (Engelschiøn, 1995). Like the Nazis, the Dergue had been meticulous in documenting its meetings, decisions, directives, orders, and actions. Its records range from death warrants to calculations of the cost of executions to films of torture sessions and bombings. Among other things, the Red Terror had been publicly proclaimed,44 execution orders were issued, and reports on torture and killings were written down (Kissi, 2006). Additionally, the investigators collected 5,000 witness statements, and an Argentinean forensic team exhumed four mass graves.45 By the end of its mandate, the SPO had “ten times more evidence than needed to successfully prosecute several of the detained and many of the exiles for serious criminal offences.”46 From December 1994 until January 2010, the SPO prosecuted both domestic and international crimes. The emphasis was on the prosecution of core crimes, including genocide (against political groups), war crimes against civilians, and provocation and preparation to commit, permit, or support genocidal acts (Metekia, 2018). Notably, in the indictments and by the SPO more generally, these crimes were all referred to as crimes against humanity. In a report to the UN Human Rights Commission, the SPO explicitly stated that “[t]‌he crimes committed by the former regime were not only crimes against the victims and the Ethiopian people, in many cases they were crimes against humanity—​crimes that the international community has a particular interest to prevent, to investigate and to punish.”47 In total, 5,119 members and affiliates of the Dergue regime were brought to trial before both federal and state courts, with 3,583 convicted and sentenced to a range of penalties including capital punishment (Metekia, 2019). Close to half of the defendants (2,188) in the Dergue trials were tried in absentia.48 For the most part, the trials focused on atrocity crimes committed by Ethiopians against Ethiopians in Ethiopia. In some genocide cases, however, the Federal High Court dealt with crimes committed by Dergue security agents

42  Proclamation Establishing the Office of the Special Prosecutor, Proclamation 22/​1992. Negarit Gazetta (8 August 1992), Preamble. 43 Report of the Office of the Special Prosecutor 1994: The Special Prosecution Process of War Criminals and Human Rights Violation in Ethiopia (cited in Kritz 1995, p. 559) (SPO Report). 44 Proclamation No. 129/​ 1977, National Revolutionary Operation Command Proclamation, Proclamation No. 129 of 1977, entered into force August 27, 1977. 45  Human Rights Watch (1994) Ethiopia: Reckoning under the Law. Available at: https://​www.hrw.org/​ report/​1994/​12/​01/​ethiopia-​reckoning-​under-​law (Accessed: October 30, 2019); Argentine Forensic Anthropology Team (1993) Bi-​Annual Report 1993. Available at: https://​eaaf.typepad.com/​ar_​1994_​1995/​ Ethiopia_​AR_​1994.pdf (Accessed: March 9, 2020). 46  SPO Report, p. 560. 47 Commission on Human Rights (1994) “Letter from the Permanent Representative of the Transitional Government of Ethiopia” (3 February 1994) E/​CN.4/​1994/​103, p. 4. 48  Special Prosecutor’s Office, Dem Yazele Dossie: Begizeyawi Wetaderawi Dergue Weyem Mengist Abalat Benetsuhan Zegoch Laye Yetefetseme Wenjel Zegeba (Addis Ababa: Far-​East Trading P.L.C., 2010), 168. Translation by the author. (SPO, 2010).

Crimes Against Humanity and Transitional Justice    867 sent to eliminate members of political opposition groups residing in Italy, Germany, and Eritrea.49 The SPO’s flagship trial at the Federal High Court (FHC) in Addis Ababa concerned 73 (20 in absentia, including Mengistu) high-​level officials, policy and decision makers, senior government officials, and senior military commanders.50 Based on 5,000 pages of signed execution orders, videos of torture sessions, and testimony, the SPO charged the accused with 210 counts of genocide and two alleged acts of other ordinary crimes.51 After twelve years, the main trial against Mengistu ended on December 12, 2006. A majority at the Federal High Court found all accused, except one, guilty of genocide,52 and on January 11, 2007, the accused were sentenced to long prison sentences.53 Mengistu received a life term in absentia. On appeal, 18 of the convicts, including Mengistu, saw their sentences increased to the death penalty.54 All the Dergue trials adjudicated mass atrocity violence, but none were explicitly about crimes against humanity or torture (which was a signature atrocity) and instead dealt with “grave willful injury”55 and “serious injury to the physical or mental health of members of the group”56—​crimes that do not require the purpose and state official elements. Also, even though the Dergue trials were often being labeled as “war crimes trials” (Deming, 1995), since most atrocities took place during civil war, only one SPO case dealt with war crimes against the civilian population.57 It concerned massacres through aerial bombings of Chila (1983), Wukro (1988), and Hawzen towns58 that left over 5,000 people dead and many more injured (SPO, 2010). For the absence of more trials on war crimes, the SPO cited a lack of reliable and sufficient evidence due to the highly peripatetic nature of the Dergue’s army, Eritrea’s secession, and irretrievability of military communiqués from the Dergue’s military base in Asmara. Another obstacle was the inability of eyewitness testimonies in pointing out individual commanders and members of the army who participated in committing acts that could constitute a war crime (SPO, 2010). Much criticism has been leveled against the SPO for being one-​sided, for its slowness, for trying the accused in absentia, for breaching defendants’ rights, and for operating in isolation from the public. Nonetheless, the courts have heard testimony from over 2,500

49 

SPO v. Tesfaye Woldeselassie et al. (Federal High Court Judgement) File no. 03101 (4 August 2003). SPO v. Colonel Mengistu Hailemariam et al. (Trial Ruling of Federal High Court) File No.1/​87 (23 January 2003) 51  Charges were categorized into four elements: (a) preparation and provocation to commit genocide; (b) commission of genocide; (c) arbitrary arrest; and (d) abuse of power; SPO v. Colonel Mengistu Hailemariam et al., (Indictment) File No. 1/​87 (25 October 1994). 52  In addition to genocide, the majority were convicted of aggravated homicide, public incitement to commit genocide, abuse of power, unlawful arrest, and detention; SPO v. Colonel Mengistu Hailemariam et al. (Judgement of Federal High Court), File No. 1/​87 (12 December 2006). 53  SPO v. Mengistu Hailemariam et al. (Sentencing Judgement Federal High Court), File No. 1/​87 (11 January 2007). 54  SPO v. Colonel Mengistu Hailemariam et al. (Appeal Judgement of Federal Supreme Court) File No. 3018 (26 May 2008). 55  1957 Penal Code, Art. 538. 56  1957 Penal Code, Art. 281. 57  SPO v. Legesse Asefaw et al. (Judgement Federal High Court) File No. 03116 (4 April 2008). 58  Legesse Asefaw et al. case, at 3. 50 

868    Thijs B. Bouwknegt and Tadesse Simie Metekia eyewitnesses and managed to collect and document the story of some of the Dergue’s victims (Conley, 2019). Whereas the SPO constituted the first-​ever “truth-​tribunal” of its kind, stories were “mainly told through the official channels of court documents and witness testimonies in an adversarial setting” (Tiba, 2011, pp. 310–​311) while the trial record remains largely inaccessible for the wider public as the vast trove of evidentiary materials remains to be digitized and disclosed (Tiba, 2011). Yet, the Dergue trials signified Ethiopia’s starting point of transitional justice. Thereafter, in three instances—​in reaction to atrocity violence discussed earlier—​Ethiopia prosecuted atrocity crimes (Metekia, 2019). First, the Anuak-​Nuwer trials (2004–​2005) dealt with the prosecution of the genocidal killing on July 26, 2002 of 32 South-​Sudanese refugees by 9 Anuaks.59 It was the first time after the Dergue trials that Ethiopia dealt with genocide against ethnic groups as the defendants—​police officers, security guards, and soldiers—​had identified their victims as belonging to the Nuwer ethnic group.60 On March 25, 2005, the Federal High Court found three of the defendants guilty of committing genocide,61 a verdict which was upheld by the FHC on July 14, 2005.62 Second, between 2005 and 2008, 88 members of the opposition Coalition for Unity and Democracy (CUD) were prosecuted for attempted genocide against ethnic Tigrayans as well as against EPRDF members during the 2005 electoral violence.63 While the main trial for the first time dealt with an attempt to commit genocide, a separate trial targeted low-​ranking CUD affiliates for perpetrating genocide against ethnic Tigrayans as well as political genocide against EPRDF members.64 In 2009, all accused were acquitted of the attempted genocide charge,65 while in the separate trial defendants were convicted for treason instead of genocide.66 Third and last, during three separate trials between 2008 and 2010, 276 individuals were prosecuted for retaliatory genocide over the 2008 violence in Benishangul-​Gumuz and Oromia.67 In each case, the Federal High Court concluded that genocide was indeed perpetrated by Gumuz against members of the Oromo on the one hand,68 and by Oromo against the Gumuz on the other.69

59 

Federal Prosecutor v. Gure Uchala et al. (Judgement Federal High Court) File No. 31855 (25 March 2005). 60  Gure Uchala et al. case, at 1,3. 61  Gure Uchala et al. case. 62  Ekok Abuna Abong v. Federal Prosecutor (Decision Federal Supreme Court) File No. 19532 (14 July 2005). 63  Federal Prosecutor v. Hailu Shawul et al. (Trial Ruling Federal High Court) File No. 43246/​ 97 (3 April 2007). Other charges included: outrages against the constitution or the constitutional order; obstruction of the exercise of constitutional powers; armed rising or civil war; attack on the political or territorial integrity of the State; impairment of the defensive power of the State; and high treason. 64  Federal Prosecutor v. Berehene Kehassaye Woldeselassie et al. (Judgement Federal High Court) File No. 45671/​99 (19 April 2007). 65  Hailu Shawul et al. case, at 194. 66  Berehene Kehassaye Woldeselassie case, at 7. 67  Federal Prosecutor v. Tadesse Jewanie Mengesha et al., (Judgement Federal High Court) File No. 70996 (24 August 2009).; Federal Prosecutor v Tesfaye Neno Loya et al. (Judgement Federal High Court) File No. 74796 (30 April 2009); Federal Prosecutor v. Aliyu Yusufe Ibrahim et al. (Judgement Federal High Court) File No. 71000 (6 September 2009). 68  Tadesse Jewannie et al. case, at 3–​14. 69  Aliyu Yusuf Ibrahim et al. case, at 3–​55.

Crimes Against Humanity and Transitional Justice    869 Altogether, on the national level, Ethiopia has reacted massively to mass atrocity violence. Although no prosecutions took place over the Italian atrocities, during four trials, no less than 5,492 suspects were tried for atrocity crimes.70 These national trials bring a unique perspective into national prosecution of atrocity crimes, not least for prosecuting an inchoate crime, namely attempt to commit genocide.

4.3. Atrocity crime trials outside of Ethiopia As noted earlier, the Dergue trials have prosecuted about 2,188 defendants in absentia. Some of them had not been arrested, while others had already died before trial could begin.71 Several Dergue members or affiliates had fled the country, particularly to Kenya and the United States of America.72 Melaku Teferra, who had been one of the most feared provincial governors of the Dergue regime, was the only former Dergue member to be extradited (from Djibouti) for trial at the SPO.73 Several others, including Mengistu, managed to stay out of Ethiopia’s judicial reach. Outside Ethiopia, however, several international crimes cases relating to the Dergue period have resurfaced, most notably in the Netherlands and the United States of America. In 2015, Eshetu Alemu, who by then had obtained Dutch nationality, was arrested by Dutch authorities on four charges of war crimes committed between 1978 and 1981.74 On December 15, 2017, the The Hague District Court convicted him for involvement in the arbitrary detention and inhumane treatment of 321 individuals, torture of 9 individuals, murder of 75 individuals, and continued arbitrary detention and inhumane treatment of 240 individuals in Demmelash (avenger) prison in Debre Markos. Five prisoners were also killed in the prison in Metekel, the second crime scene in the case (Bouwknegt, 2018). Alemu, who was Chairman of the Coordinating Council of the Revolutionary Campaign in Gojam Province, was sentenced to life imprisonment, while five torture survivors received damages. Alemu, who was the 49th member of the Dergue, had been tried twice in Ethiopia in absentia. In his individual trial, relating to ten massacres throughout Gojam, he was sentenced to death;75 and in the SPO’s main trial, alongside Mengistu and others, he was additionally convicted for being part of a genocidal plan to destroy opposition groups. Parts of his SPO case file were used in the Dutch trial, and former SPO prosecutor Yoseph

70  The Anuak-​Nuwer trials found three of the nine defendants guilty. In the Oromo-​Gumuz trials, 174 of 276 suspects were convicted. The Dergue trials entered a guilty verdict for 3,583 of the 5,119 defendants (see Metekia, 2019). 71  Six defendants in Elias Tsegaye et al. were identified dead while proceedings progressed in their absence. SPO v. Elias Tsegaye et al. (Sentencing Judgement Federal High Court) File No. 632/​89 (4 May 2001), p.22. 72  The SPO traced suspects in Zimbabwe, Djibouti, Kenya, the Netherlands, and the United States of America, the Italian Embassy in Addis Ababa. SPO Report, p. 670. 73  Teferra was prosecuted in the Mengistu trial and individually for crimes in Gonder province. See SPO v. Melaku Teferra (Judgement Federal High Court) File No. 03112 (11 November 2006). 74 See Prosecutor v. Eshetu A. (Requisitoire Public Prosecution Service) Case No. 09/​748013-​12 (7–​8 November 2017); Prosecutor v. Eshetu A. (Judgement Hague District Court) Case No. 09/​748013-​12 (15 December 2017). 75  SPO v. Eshetu Alemu, (Judgement Federal High Court) File No. 921/​89 (3 May 2000).

870    Thijs B. Bouwknegt and Tadesse Simie Metekia Kiros Gezahegn provided testimony in The Hague. The trial of Alemu was one of the largest criminal trials in Dutch history. But he was not tried for crimes against humanity or genocide. Under Dutch law and its application of the principle of universal jurisdiction, he could only be prosecuted for war crimes under a 1952 war crimes law,76 not for other international crimes. Thus, the Dergue’s violence was legally classified as war crimes, which was complex in terms of armed conflict nexus in Gojam. But during the trial, victims’ lawyers, and even the prosecution and defense, in general terms, all agreed that the mass violence in Ethiopia could be described as crimes against humanity (committed through acts of persecution, torture, or extermination) (Bouwknegt, 2018). The Alemu trial showed that cases of universal jurisdiction can be complementary to other transitional justice mechanisms elsewhere using the available and applicable laws. Likewise, in the United States of America, but different than in the Netherlands, Ethiopian atrocity crime suspects were not directly prosecuted for atrocity crimes. Alternatively, and indirectly, accountability related to atrocities in Ethiopia have been pursued through Alien Tort Act (ATCA) claims and immigration offenses. The first Ethiopian person tried in the United States of America was Kalbessa Negewo, a low-​ranking Dergue official, who, from 1975 to 1979, had chaired the Higher/​District 9 and its revolutionary coordinating committee in Addis Ababa.77 His case started in 1993, and the District Court for the Northern District of Georgia found Kalbessa Negewo liable for torture and cruel, inhumane, and degrading treatment of three Ethiopian women in the Higher 9 Prison. This landmark decision was taken pursuant to the Alien Tort Claims Act.78 Consequently, Negewo was deported to Ethiopia on October 19, 2006, pursuant to a final order of removal by the Board of Immigration Appeals following the revocation of his naturalized US-​American citizenship.79 In other cases, the United States of America prosecuted two Ethiopians for procuring entry to the United States of America while hiding their involvement in atrocities. Kefelegne Alemu Worku was the first Dergue fugitive to be convicted of unlawful procurement of citizenship or naturalization, fraud, and misuse of visas, permits, and other documents, and aggravated identity theft. He was sentenced to twenty-​two years, in which the court considered the fact that Worku committed the crimes to conceal violations of human rights in Ethiopia an aggravating factor.80 However, the Court explicated that its sentencing purpose was not to punish Worku for crimes in Ethiopia, but that “[t]‌he United States must emphatically reject becoming a haven for fugitives from justice in their own countries and

76 

Wet oorlogsstrafrecht, 10 July 1952. SPO v. Kalbessa Negewo (Indictment Federal High Court) File No. 69/​85 (13 January 2008), p.1. Negawo was the first person to stand trial for torture during the Dergue period. His U.S. trial started in 1990. 78  Abebe-​Jira v. Negewo, (Judgement of United States District Court of Georgia) Case No. 1:90-​CV-​ 2010-​GET (20 August 1993). Decision affirmed on appeal: Abebe-​Jira v. Negewo, (Judgement of United States Court of Appeal, Eleventh Circuit) Case No. 93-​9133 (10 January 1996). 79  Negewo v. Chertoff (Decision United States District Court, S.D. Alabama, Northern Division) Civil Action No. 06-​00631-​WS-​C (2007 WL 38336) (5 January 2007), paras. 1–​5. 80  United States v. Worku (Judgement of District Court for the District of Colorado) D.C. No. 1:12-​ CR-​ 00346-​ JLK-​ 1 (27 May 2014). Available at: https://​www.casemine.com/​judgement/​us/​ 5914fb6dadd7b049349ad61b# (Accessed: October 31, 2019). 77 

Crimes Against Humanity and Transitional Justice    871 in the eyes of the civilized world.”81 A second immigration case concerned Mergia Negussie Habteyes, a Dergue detective who participated in the persecution of detainees in Addis Ababa between 1977 and 1978 (Gabisa, 2019).82 In February 2019, Habteyes pleaded guilty to fraudulently obtaining citizenship through a series of lies, including failure to disclose participation in persecution during the Red Terror.83

5.  Conclusion Until the philosophy which hold one race superior /​And another /​Inferior /​Is finally /​And permanently /​Discredited /​And abandoned /​Everywhere is war /​ Me say war /​That until there no longer /​First class and second class citizens of any nation /​Until the color of a man’s skin /​Is of no more significance /​than the color of his eyes /​Me say war /​That until the basic human rights /​Are equally guaranteed to all, /​Without regard to race /​Dis a war /​That until that day /​The dream of lasting peace, /​World citizenship /​Rule of international morality /​Will remain in but a fleeting illusion to be pursued, /​But never attained /​Now everywhere is war /​War /​And until the ignoble and unhappy regimes /​that hold our brothers in Angola, /​In Mozambique, /​South Africa /​Sub-​human bondage /​Have been toppled, /​Utterly destroyed /​Well, everywhere is war /​Me say war —​Robert Nesta Marley84

A year after Salassie’s dethronement, through revolutionary times and while violence in Ethiopia was no longer just on the horizon, reggae singer-​songwriter Bob Marley celebrated again the words of Selassie’s “War” speech. On October 4, 1963, weeks after he headed the foundation of the pan-​Africanist Organization of African Unity in Addis Ababa, the Emperor called for world peace at the United Nations in New York. Selassie’s words rephrased and reignited his 1936 plea for international peace and justice at the League of Nations. His words were popularized across the globe through Marley’s formidable voice and through The Wailers’ militant drum and bass rhythm. What Marley added to the text was a gloomy but catchy phrase “Well, everywhere is war, me say war.” Coming from Jamaica, where political violence was rampant, too, Marley’s realism still rings true today; one could always pursue peace and justice and believe that “good” will be victorious over “evil,” but war and its rumors remain. Marley, who was baptized in the Ethiopian Orthodox 81 

United States v. Worku (Judgement of District Court for the District of Colorado) D.C. No. 1:12-​ CR-​ 00346-​ JLK-​ 1 (27 May 2014). Available at: https://​www.casemine.com/​judgement/​us/​ 5914fb6dadd7b049349ad61b# (Accessed: October 31, 2019). 82  US Department of State (2018) Ethiopian Human Rights Abuser Arrested for Fraudulently Obtaining U.S. Citizenship, Press Release, August 17. Available at: https://​www.justice.gov/​opa/​pr/​ethiopian-​human-​ rights-​abuser-​arrested-​fraudulently-​obtaining-​us-​citizenship (Accessed: October 31, 2019). 83  US Immigrations and Customs Enforcements (2019) Ethiopian human rights abuser pleads guilty to fraudulently obtaining us citizenship by admitted series of lies in naturalization process, including failure to disclose participation in persecution during the Red Terror period in Ethiopia. Available at: https://​ www.ice.gov/​news/​releases/​ethiopian-​human-​rights-​abuser-​pleads-​guilty-​fraudulently-​obtaining-​us-​ citizenship (Accessed October 31, 2019). 84  Bob Marley and the Wailers, (1976) “War,” Rastaman Vibration. Kingston: Tuff Gong Music.

872    Thijs B. Bouwknegt and Tadesse Simie Metekia Church before he died, has always sounded prophetic, and his “war” song was very timely in Ethiopia. Indeed, chanting in 1976 before the Red Terror, it was not the first time Ethiopia experienced mass atrocity violence. We have shown in this chapter several cycles of violence that took place in Ethiopia. Although the contexts varied between colonial and fascist aggression, communist politicide, and federal ethnic violence, we highlighted a spiral of crimes against humanity. In each period conscious, continued, and systematic violence, which was demographically and geographically widespread and directed against Ethiopian civilian populations with the aim to violate fundamental features of being human, took place. Ethiopia has expressively captured the realities of atrocity under the common denominator of crimes against humanity—​a framework so foundational that it is enshrined in the country’s Constitution. In Ethiopia, crimes against humanity, as a framework, represents the entire rubric of mass atrocity crime as we know it from the Rome Statute. However, Ethiopia is not a signatory to the treaty that established the International Criminal Court. This indicates, to some extent, that Ethiopia, which was never really colonized, is not fond of international and foreign legal interference in its national developments. One explanation for Ethiopia’s reluctance to rely on “international” assistance may be that the international community denied the country protection from aggression in the 1930s and justice for Italian crimes in the 1940s. Yet, Ethiopia spearheaded advocacy in the League of Nations for international criminal prosecutions for atrocities during the Second World War and was also an early subscriber to critical instruments of international (criminal) law, including the Genocide Convention. In terms of transitional justice, Ethiopia has walked its own path, but has implemented mechanisms that would only later be applied elsewhere. Not only did it have its own war crimes commission documenting atrocity, it was also the first post–​Cold War nation to set up a national tribunal system that was not only to prosecute atrocity crimes but also to establish a historical record. The SPO—​created to deal with the atrocities that could be labeled as crimes against humanity—​preceded prosecutions in at least four different cases of ethnic violence, including genocide. At the same time, it provided evidentiary documentation to judicial systems in Europe and North America, which applied post-​atrocity justice through universal jurisdiction and immigration fraud proceedings. We conclude that whereas Ethiopia has faced—​and continues to face—​episodes of crimes-​against-​humanity-​ type of mass atrocity violence, it has simultaneously endeavored, in an innovating and home-​grown way, to deal with the historical legacies of such violence.

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Crimes Against Humanity and Transitional Justice    875 Teshome-​ Bahiru, W. (2010) “Electoral Violence in Africa: Experience from Ethiopia.” International Journal of Humanities and Social Sciences 3(2), pp. 176–​201. Tessema, M.T. (2018) Prosecution of Politicide in Ethiopia: The Red Terror Trials. The Hague: T.M.C. Asser Press. Tiba, F.K. (2011) “The Trial of Mengistu and Other Derg Members for Genocide, Torture and Summary Execution in Ethiopia.” In: Murungu, C., and Biegon, J. (eds.) Prosecuting International Crimes in Africa. Pretoria: Pretoria University Law Press, pp. 168–​184. Tiba, F.K. (2013) “Mass Trials and Modes of Criminal Responsibility for International Crimes: The Case of Ethiopia.” In: Heller, K.J., and Simpson, G. (eds.) The Hidden Histories of War Crimes Trials. Oxford: Oxford University Press, pp. 306–​324. Tiruneh, A. (1993) The Ethiopian Revolution 1974–​1987: A Transformation from an Aristocratic to a Totalitarian Autocracy. Cambridge: Cambridge University Press. Toggia, P. (2012) “The Revolutionary Endgame of Political Power: The Genealogy of ‘Red Terror’ in Ethiopia.” African Identities 10(3), pp. 265–​280. Tronvoll, K. (2009) War and the Politics of Identity in Ethiopia: Making Enemies and Allies in the Horn of Africa. Woodbridge: James Currey. Tronvoll, K., Schaefer, C., and Aneme, G.A. (2009) The Ethiopian Red Terror Trials: Transitional Justice Challenged. Woodbridge: James Currey. Uhlig, S., Appleyard, D., Bausi, A., Hahn, W., and Kaplan, S. (eds.) (2017) Ethiopia: History, Culture and Challenges. East Lansing: Michigan State University Press. Üngor, U.U. (2016) Genocide: New Perspectives on Its Causes, Courses and Consequences. Amsterdam: Amsterdam University Press. Washington Williams, G. (1890) “An Open Letter to His Serene Majesty Leopold II, King of the Belgians and Sovereign of the Independent State of Congo, by Colonel the Honorable Geo. W. Williams, of the United States of America.” In: Franklin, J.H. Washington Williams: A Biography. Durham, NC: Duke University Press, (1998), p. 25. Weiss-​Wendt, A. (2017) The Soviet Union and the Gutting of the UN Genocide Convention. Madison: University of Wisconsin Press. Wiebel, J. (2015) “Let the Red Terror Intensify: Political Violence, Governance and Society in Urban Ethiopia, 1976–​78.” International Journal of African Historical Studies 48(1), pp. 13–​30. Wright, Q. (1936) “The Test of Aggression in the Italo-​Ethiopian War.” The American Journal of International Law 30(1), pp. 45–​56. Young, J. (1997) Peasant Revolution in Ethiopia: The Tigray People’s Liberation Front, 1975–​1991. Cambridge: Cambridge University Press. Zeiler, J.E. (1989) “Genocide Convention—​ Intentional Starvation—​ Ethiopian Famine in the Eritrean War for Independence. The Applicability of the Genocide Convention to Government Imposed Famine in Eritrea.” Georgia Journal of International and Comparative Law 19, pp. 589–​612. Zewde, B. (2001) A History of Modern Ethiopia 1850–​1991. 2nd ed. Oxford: James Currey. Zwaan, T. (2003) On the Aetiology and Genesis of Genocides and other Mass Crimes Targeting Specific Groups. Amsterdam: Center for Holocaust and Genocide Studies.

I C. Genocide

CHAPTER 36

Guatem a l a

Genocide and its Aftermath Naomi Roht-​A rriaza 1.  Introduction The conflict in Guatemala began, depending on whom you ask, with the Spanish invasion in the 16th century, with the overthrow of the democratically elected Arbenz government by CIA-​backed mercenaries in 1954, or with the rebellion of young army officers against the resulting dictatorship in 1960. Those differing origin narratives help explain the diverse reactions to charges—​legal and political—​that a genocide took place in the early 1980s. They clarify why some social actors adamantly rejected the notion that genocide occurred in the early 1980s, while others just as adamantly insisted that it was important to call the massive rights violations that occurred by that name. This chapter traces the causes, actors, and aftermath of the atrocity crimes committed during Guatemala’s internal armed conflict. It looks at the ways the atrocities were dealt with after the signing of a peace accord, considering truth-​telling, criminal prosecutions, reparations, and institutional reform. It focuses in particular on the charges of genocide as well as crimes against humanity brought against former head of state Efraín Ríos Montt, who was tried in 2013. It then considers the backlash against the trial, and concludes by evaluating the positive effect of the trials, as well as its limitations.

2.  History of the Conflict Guatemala’s history is marked by the economic and social exclusion and subordination of the indigenous majority (LeFeber, 1984; Grandin, 2000; Jonas, 2000; Manz, 2004). During colonial days, that population was decimated by diseases, herded into large farms, and used as slave labor on Spanish plantations. Once the nation was independent, coffee became the country’s main crop, and indigenous Guatemalans lost even more of their land and were pushed up into small, hard-​to-​farm highland plots, which never sufficed to feed a family. This created the economic incentive to seek seasonal labor on coffee, cotton, and sugar cane

880   Naomi Roht-Arriaza plantations; vagrancy, forced military recruitment, and forced public labor laws also enforced labor discipline and applied only to the rural, Indigenous poor. Thus, from the beginning, the state was “racist in theory and practice” (Grandin, 2009, p. 4). Accompanying the majority’s economic subjugation were narratives created by the elite of backwardness, savagery, and the need to “de-​indianize” and assimilate the Mayan population (Casaus, 2007). The principal forces involved in the massive atrocity crimes were the military on one hand, and a coalition of leftist insurgent groups, known as the Guatemalan National Revolutionary Unity (URNG, after the Spanish acronym), on the other. The military held power, directly or indirectly, for much of the country’s independent existence, with the exception of a 10-​year period, 1944–​1954, in which nationalist and democratic governments tried to nationalize land and modernize the largely feudal economy. That experiment came to a bloody end in a 1954 coup engineered by the United States CIA, whose concerns about creeping Communism were whipped up by the banana-​exporting United Fruit Company, which had large tracts of unused land expropriated during the 1952–​1954 Arbenz regime (Kinzer, 2005). Ever since 1954, the military maintained power through selective repression, electoral fraud, and an alliance with the country’s elite. During the 1960s, a revolt led by young army officers was crushed in the east of the country with the assistance of U.S. Army Green Berets in an early example of U.S. counterinsurgency strategy (McGill, 1989). As economic conditions worsened in the mid-​1970s, especially after a devastating 1976 earthquake, mass movements of students, slum-​dwellers, trade unionists, and peasants grew, eventually forming a coalition. At the same time, guerrilla groups with ideologies ranging from old left Communist, to new left pro-​Cuban, to indigenous-​nationalist, took shape in different parts of the country. As repression of the legal social movements grew, leaders of these mass movements were gunned down at demonstrations or forcibly disappeared. Potential moderate challengers to a military-​led presidency, including former Guatemala City Mayor Manuel Colóm, were gunned down in the capital, and some social movement members, despairing of legal avenues for change, joined the armed groups. Other base members of these armed guerrilla groups came from liberation-​theology influenced Christian base communities as well as from indigenous communities in the highlands, whose existence on tiny eroded farms, or as seasonal laborers on large export plantations, was increasingly precarious. As the guerrilla groups gained strength, the military responded with selective killings and forced disappearances. By 1981, the repression increased, engulfing entire regions, and the guerrillas had united into a single organization with fronts throughout the country. Most military activity was not a direct confrontation between the army and the guerrillas but was composed of massacres and selective killings of civilians, especially in the heavily indigenous western highlands. Many communities fled en masse and were then pursued into the mountains, their food caches destroyed, and their camps bombed (Falla, 1985; Sanford, 2003; Higonnet, 2009). The guerrilla forces, unable to withstand the military onslaught, were soon eliminated as a threat to state power, although they continued to exist in small pockets and outside the country. The internal armed conflict officially began in 1960 and ended in 1996. Over that period, according to the UN-​sponsored Commission on Historical Clarification (CEH), some 200,000 people were killed, and some 40,000 were the victims of enforced disappearance. The army carried out bombings, massacres, and scorched-​earth policies, hunting down refugees and concentrating survivors in army-​controlled “model villages.” The bulk of the atrocities were committed in the late 1970s and early 1980s, and the vast majority of

Guatemala   881 the victims were Mayan indigenous people whom the army considered to be the support base for a leftist guerrilla movement. Urban-​based political opposition leaders, students, trade unionists, journalists, and other sources of opposition to the military and their allies (the large landowners) were also killed, tortured, or disappeared. Of the total killings, disappearances, torture, and destruction, the CEH found the army responsible for 93 percent, with the guerrillas responsible for a number of massacres and more selective killings. Over 400 villages were completely destroyed, sometimes with no survivors. Women were raped on a massive scale; children and old people were targeted as bearers of culture; and crops, forests, and animals were destroyed. The effects were devastating throughout a broad swath of the country.1 Collectively, the violence constituted not only a collection of serious war crimes in the context of a non-​international armed conflict.2 The acts were widespread and were part of a systematic plan or policy designed and carried out from the highest echelons of the military governments and the army high command, and therefore met the requirements for crimes against humanity.3 While there is broad consensus on this characterization of the crimes, there is less unanimity as to whether the acts against specific Mayan groups, or the Mayan population as a whole, constituted genocide.4 That issue will be subsequently taken up in detail. Layered on top of the violence committed by the state against its own people are a host of complexities (Arriaza and Roht-​Arriaza, 2008a; 2008b). The country is divided into over 20 language groups that inhabit different, although overlapping, regions, has mountainous valleys with little communication between them, with different histories, social composition, and cultural practices. In some areas, Mayan communities lived next to mixed-​race or non-​indigenous ones, while in others, a non-​indigenous minority held local economic and/​or political power within a largely Mayan town or dominated a county seat surrounded by Mayan communities; in still others, there were no non-​indigenous people. In some areas, land or water disputes were at issue, as were rising tensions between Catholics and Evangelical Christians or between traditionalists and modernizers. In fact, the contours of the conflict varied widely throughout the country, with some regions remaining relatively

1 

Comisión de Esclarecimiento Histórico (CEH) (1999) Guatemala: Memoria del Silencio. Available at http://​shr.aaas.org/​guatemala/​ceh/​mds/​spanish/​ (Accessed: April 5, 2008) (CEH, 1999). 2  Guatemala was a party to the four Geneva Conventions at the time these events took place. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 31(First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 85 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 135 (Third Geneva Convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted August 12, 1949, entered into force October 21, 1950) 75 UNTS 287 (Fourth Geneva Convention). 3  The definition of crimes against humanity, while not detailed in a separate treaty at the time, was considered a crime under customary international law since at least the Nuremberg Trials and related trials under Control Council Law No. 10 after the Second World War. See for example Van Schaack (1998). 4  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention).

882   Naomi Roht-Arriaza untouched by the 1980s political violence, such as the largely ladino eastern region of the country that had been “pacified” during the 1960s counterinsurgency campaign. Other areas were massively attacked or wiped out entirely, and still others experienced more selective state attacks on community leaders. The army played on and exacerbated these pre-​existing divisions as well as personal feuds, for example by issuing ID cards allowing freedom of movement to Evangelicals but not Catholics (who were widely viewed as supporting the insurgency). The military government’s repression was aimed at replacing traditional religious and civic authorities with people aligned with the military, who benefited from their association, obtaining the lands (and sometimes widows) of those killed. Most importantly, the army created para­ military forces known as Civil Defense Patrols (PAC, Patrullas de Autodefensa Civil). These forces served as the eyes and ears of the military in their villages and were used as cannon fodder to sweep areas where the army believed there was guerrilla activity. They also committed many of the atrocities of the period, including some of the worst massacres. Some PAC members voluntarily took advantage of army sponsorship to settle old scores with neighbors or neighboring villages, or to amass wealth and local power. However, substantial numbers of civil patrollers were made up of Mayan men who were intimidated or forced to join on pain of death, or who joined in an effort to save their communities from worse destruction. Most PACs were indigenous while their commanding officers were ladino, often local military commissioners. Thus, “society was transformed by the army’s coerced integration of the rural indigenous majority into its counter-​insurgency design, with negative effects for indigenous and religious practices” (Sieder, 2001, p. 165). Like most internal armed conflicts, the Guatemalan conflict had both “vertical” (state/​citizenry) and “horizontal” (neighbor/​neighbor) aspects, but the relative weight of each varied among localities. In part, this was a question of timing: some communities were active in support of insurgent forces, while in other areas the guerrillas had already been wiped out by the army or had fled before the army came in, and the killings and destruction were more in the nature of reprisals for opposing the government. Adding to this complexity is the intersection of complicity, betrayals, and duress designed by the army to tear apart the bonds holding communities together. Many families had members in both guerrilla groups and the PAC, and many were forced to collaborate or to betray family and friends. PAC members were told that if they did not adequately repress the local population, they themselves would be killed as presumptive insurgent sympathizers. The army in a number of cases forced PAC members to publicly kill other PAC members as supposed guerrilla collaborators.5 Worse, in other instances, PAC and army together forced villagers, and sometimes an entire village, to participate in the public killing or torture of their neighbors or in desecration of their bodies.6 These events continue to divide and traumatize communities even years later (Arriaza and Roht-​Arriaza, 2008a; 2008b).

5 

See the discussion of such events in Cucabaj and Zacualpa, Quiche, in CEH, 1999, pp. 43–​53. See, for example, Illustrative case 107 (Acul massacre) in CEH, 1999; see also the report of a church-​ sponsored commission known as REHMI (1998), described infra (Vol. 1) at 35 (forced collaboration as a way of promoting collective complicity and the normalization of violence). Of course, such practices are not limited to Guatemala, but have been a feature of many recent conflicts. 6 

Guatemala   883 Those rounded up by the military were relocated into “model villages” under military control and indoctrination. Hundreds of thousands of people were displaced, some into the mountains, where they subsisted largely in “resistance communities” until hunger and illness forced them to surrender.7 Others left for refugee camps in Mexico, and some communities immigrated almost en masse to the United States.

3.  Local and international Reactions: Post-​conflict Accords By the early 1990s, the military, seeing itself as victorious, allowed a civilian, the Christian Democrat Vinicio Cerezo, to become president, although a military-​civilian economic elite continued to wield real power. Peace negotiations between the few remnants of the guerrilla force and the military, under UN auspices, led to a set of accords in 1996. Guatemala’s peace accords were wide-​ranging and ambitious, including accords on agriculture and socioeconomics, indigenous identity and rights, constitutional reform, a new role for the army, and human rights.8 The peace process itself was notable because it gave rise, through the 1994 Framework Accord, to the formal participation of an Assembly of Civil Society, consisting of civil society organizations, small business groups, and political parties that provided advice, albeit nonbinding, to the negotiating parties (Jonas, 2000, p. 44, 95). This lent the process some legitimacy and provided a way to channel civil society concerns to the two sets of opposing military commanders from the army and guerrillas. Several of the peace accords were particularly relevant to dealing with atrocity crimes during the internal armed conflict. These included those dealing with human rights, the creation of a historical clarification commission, and the reform of the army and police.

3.1. Truth-​telling One of the most contentious accords concerned the creation of the Commission on Historical Clarification (CEH), which was deliberately not called a Truth and Reconciliation Commission, because civil society groups saw “reconciliation” in prior Latin American commissions as a code word for amnesty. The Commission had a three-​part mission: investigate “the human rights violations and acts of violence that have caused the Guatemalan population to suffer, connected with the armed conflict,”9 write up its conclusions in a public 7  CIDH

(1994) “Informe Especial Sobre la Situación de los Derechos Humanos de las Llamadas ‘Comunidades de Población en Resistencia’ de Guatemala.” Comisión Interamericana de Derechos Humanos. Organización de los Estados Americanos (OEA). Available at: http://​www.cidh.org/​countryrep/​ CPR.94sp/​Informe.htm#_​ftn1 (Accessed: June 4, 2019). 8  United States Institute of Peace (1998) “Peace Agreements: Guatemala,” 20, November. Washington, D.C. Available at https://​www.usip.org/​publications/​1998/​11/​peace-​agreements-​guatemala. (Accessed: October 3, 2019). 9  Agreement on the establishment of the Commission to clarify past human rights violations and acts of violence that have caused the Guatemalan population to suffer (Acuerdo sobre el establecimiento

884   Naomi Roht-Arriaza report, and make recommendations to honor the memory of the victims and create a culture of respect for human rights and democracy. It could not subpoena witnesses or records. A provision in its mandate forbidding the Commission to individualize responsibilities and specifying that its report would not have judicial functions or effects was particularly objectionable to civil society (Balsells, 2001, p. 120). Unlike many subsequent similar commissions created in the wake of an armed conflict elsewhere, the Commission held no public hearings and its testimonies were taken in private to guarantee that witnesses and informants would be protected. The Commission, composed of German law professor Christian Tomuschat and Guatemalans Alfredo Balsells Tojo, a lawyer, and Otilia Lux, a Mayan educator, had a very short period—​initially 6 months, eventually extended to 18 months—​in which to document and analyze 36 years of conflict (1960–​1996) and write a report. In addition to the official Commission, Guatemala had an unofficial truth-​seeking effort. Organized by the Catholic Church, the Recovery of Historical Memory (REHMI) project used some 700 bilingual lay Catholic statement-​takers to interview people throughout the highlands around a number of open-​ended themes. They collected over 5,000 testimonies and produced a four-​volume report, Guatemala Never Again, detailing the kinds of violence, the effects, the history, the first-​person testimonies, and, where possible, the names of both victims and perpetrators.10 The 1998 REHMI report was intended to both feed into, and set a standard for, what was expected to be a much weaker official truth commission. The day after it was publicly unveiled, the country’s archbishop, Juan Gerardi, was murdered (Goldman, 2007). From a weak and much-​criticized start (Sieder, 1998; Wilson, 1998), the recommendations and conclusions of the “official” CEH turned out to be far stronger than had been expected by most human rights organizations, in part due to pressure from civil-​society groups and the existence of the REHMI report. Unable to name individuals, the report11 focused on institutions. The CEH found specific army commands and structures responsible for the vast majority of the violations and presented its investigations on a number of illustrative or emblematic cases. It also used historians and social scientists to investigate the root causes of the armed conflict and its effects on local communities. Finally, it issued wide-​ranging recommendations, including for reparations and structural reforms. The CEH found that “acts of genocide” had been committed in at least four areas of the country: the northern Ixil triangle area, two areas in Quiché province, and the northeastern Rabinal area. A fifth area, in southern Quiché and northern Chimaltenango, was

de la comisión para el esclarecimiento histórico de las violaciones a los derechos humanos y los hechos de violencia que han causado sufrimientos a la población guatemalteca) (1994) Available in English at: https://​www.usip.org/​sites/​default/​files/​file/​resources/​collections/​commissions/​Guatemala-​Charter.pdf (Accessed: March 17, 2020). 10  REHMI (Recovery of Historical Memory Project) (1998) Guatemala Nunca Mas. Guatemala: Office of Human Rights of the Archbishop. Available at http://​www.derechoshumanos.net/​lesahumanidad/​ informes/​guatemala/​informeREMHI-​Tomo1.htm (Accessed: October 3, 2019) (REHMI, 1998). 11  CEH (Historical Clarification Commission) (1999) Memoria del Silencio. Conclusions and Recommendations available at file://​/​Users/​roht-​arriaza/​Downloads/​UNDP_​gt_​PrevyRecu_​ MemoriadelSilencio.pdf (Accessed: July 7, 2021) (CEH, 1999).

Guatemala   885 not included because there was not enough time for the Commission to verify the relevant facts. The CEH found that genocidal acts had occurred against the Mayan-​origin Indigenous groups in those regions,12 including killing, inflicting serious physical and mental harm on the group, deliberate creation of conditions of life aimed at the partial physical destruction of the group, prevention of births within the group (through, i.e., killings of fetuses and pregnant women), and the transfer of children from one group to another through the enslavement and/​or adoption of child massacre survivors. On the crucial question of genocidal intent, the CEH’s rationale, adopted by complainants in the subsequent genocide cases, was that: It is very important to distinguish between “the intent to destroy a group in whole or in part,” that is, the positive determination to do so, and the motives of such an intent. In order to determine genocide, it is only necessary to demonstrate that there exists an intent to destroy the group, regardless of motive. For example, if the motive of the intent to destroy an ethnic group is not a racist orientation but only a military objective, the crime may nevertheless be understood to be genocide. (CEH, 1999, sec. 855)

The CEH report was presented to the government in a multitudinous public event in 1999. The government or the army did not then accept its conclusions, although then-​president Álvaro Arzú made a half-​hearted effort at acknowledgment in 1998 and, a decade later, President Alvaro Colóm did officially apologize for the state’s behavior.13 The CEH report was translated into simpler language for distribution in the countryside, but most large media, including print, radio, and TV, did not widely publicize its findings. In addition to the CEH and REHMI Reports, victim groups have tried to obtain military archives, largely unsuccessfully. There have been some spectacular leaks of military documents, including those used in the “Military Diary” and genocide cases.14 In addition, a chance investigation of an abandoned police station uncovered a treasure trove of police documents which have been archived and digitized for use by family members of the disappeared as well as by prosecutors.15 A number of locally based truth-​seeking, mapping, and historical reconstruction efforts have also taken place in various parts of the country (Arriaza and Roht-​Arriaza, 2008a; 2008b).

12  The groups were maya-​ q’anjob’al, maya-​chuj, maya-​ixil, maya-​k’iche’ y maya-​achi. (CEH, 1999, sec. 853). 13  Impunity Watch/​Convergencia por los DD.HH. (2009) “La Persistencia de la Verdad: A 10 Años del Informe de la CEH,” Impunity Watch: Guatemala. For a general discussion on apologies and their role in redress and reparation movements see Chapter 30 by Stephanie Wolfe in this volume. 14  The “military diary” is a logbook of military intelligence that records the detention and fate of a large number of “disappeared” people in Guatemala. In the 2013 prosecution of former head of state Efrain Ríos Montt, evidence of a systematic plan to attack the civilian population of northern Quiché province, known as “Plan Sofía,” was introduced into evidence. See Doyle, K. (n.d.) “The Military Logbook Dossier,” Available at: www.nsarchive.gwu.edu (Accessed October 3, 2019); “Operation Sofia: Documenting Genocide in Guatemala” (2009) National Security Archives, December 2. Available at: See http://​nsarchive.gwu.edu/​NSAEBB/​NSAEBB297/​(Accessed October 3, 2019). 15   See for example Doyle, K. (2005) “The Guatemalan Police Archives.” National Security Archives. Available at: http://​nsarchive.gwu.edu/​NSAEBB/​NSAEBB170/​ (Accessed: October 3, 2019).

886   Naomi Roht-Arriaza

3.2. Amnesty law The issue of whether the military committed genocide has been central to efforts to bring the military high command to justice for the crimes committed during the internal armed conflict. In the context of the peace accords, Congress passed a new amnesty law abrogating the old one, which had been passed by the military government in 1986 to give itself complete impunity. The new amnesty law, the 1996 National Reconciliation Law (NRL), provided the legal basis for the re-​incorporation of members of the URNG (National Guatemalan Revolutionary Union, the coalition of insurgent groups) into Guatemalan society (Popkin, 1996). The NRL also “extinguish[ed] criminal responsibility” for crimes committed by members of the military, civil patrollers, and politicians between the start of the armed conflict and the date of the law’s passage.16 Various articles of the law apply to both members of the armed insurgency and state actors. Article 2 authorizes amnesty for political crimes against the state committed by the insurgency during the internal armed conflict, while Article 3 establishes the common crimes related to those political crimes that are also eligible for amnesty.17 Article 5 of the law authorizes the courts to grant amnesty to state actors (or members of any other force established by law, e.g., paramilitary civil patrols) for common crimes perpetrated in the armed conflict with the objective of preventing, impeding, pursuing, or repressing the political and related common crimes committed by the insurgents. The relationship between the crimes committed and the preventive goal must be “rational and objective,” and the crimes must not have been committed for personal motives. Article 6 establishes that the amnesty provisions apply to state actors for actions that were ordered, carried out, or not carried out in order to avoid a greater harm, as well as to acts related to the peace negotiations, all of which are to be considered to be of a political nature. Two other articles of the 1996 NRL explicitly recognize international law limitations to its scope. Article 8 states that “exemption from criminal responsibility will not apply to crimes of genocide, torture and forced disappearance” in conformity with internal legislation and international treaties ratified by Guatemala.18 However, the article still leaves cases of extra-​judicial execution by the security forces and deliberate and arbitrary killings by the armed opposition open to the interpretation of the courts regarding the application of amnesty.19 Whether the NRL is applicable is decided on a case-​by-​case basis: Article 11 states that “crimes that are outside the scope of the present law . . . or that do not allow for the extinction of criminal liability [that is, that are not subject to a statute of limitations . . .]” according to the international treaties adopted or ratified by Guatemala will be processed in accordance with the proceedings established in the Guatemalan Code of Criminal Procedure.20

16 

Decreto No. 145-​96, Diario de Centro América, Numero 54 (27 December 1996). Available at: http://​ www.unhcr.org/​refworld/​docid/​3dbe6a606.html). (Accessed: July 11, 2011). 17  Decreto No. 145-​96. Common crimes like murder, rape, or assault were left unenumerated. 18  Decreto No. 145-​96, Diario de Centro América, Numero 5 (27 December 1996). Available at: http://​ www.unhcr.org/​refworld/​docid/​3dbe6a606.html). (Accessed: July 11, 2011). 19  Amnesty International (1997) Guatemala: State of Impunity, April 24, AMR 34/​002/​1997, 3. Available at: http://​www.unhcr.org/​refworld/​docid/​45bf71642.html (Accessed: June 4, 2019). 20  Decreto No. 145-​96, Diario de Centro América, Numero 5 (27 December 1996) Available at: http://​ www.unhcr.org/​refworld/​docid/​3dbe6a606.html). (Accessed: July 11, 2011).

Guatemala   887

3.3.  Prosecutions In the first decade after the accords, the Prosecutors’ office refused to open cases related to the internal armed conflict, and victim groups’ attempts to bring private prosecutions (as permitted by law) ran up against intimidation of judges and inaccessibility of evidence. A few post-​war emblematic human rights cases did go to trial, including the killing of anthropologist Myrna Mack for her work with displaced populations,21 and of Archbishop Juan Gerardi, who had commissioned the REHMI report discussed earlier. But even these cases concerned the triggermen, not the intellectual authors of the crimes (Goldman, 2007; Palacios, 2018). The lack of a serious domestic prosecutions policy began to change due to outside pressure from litigation in Spain (Roht-​Arriaza, 2008), and from the Inter-​American Human Rights System. As these efforts combined with domestic changes and civil-​society pressures, the pace of trials accelerated. At first, trials focused on low-​level perpetrators, including leaders of the paramilitary civil patrols in several parts of the country. Next, and especially after the appointment of a new Prosecutor (described later), military and police officers were prosecuted in emblematic cases like the Dos Erres Massacre of over 200 civilians, the disappearances of student leaders, and the Spanish Embassy firebombing that killed 36 people, including the Spanish Ambassador, in 1980.22 The charges in these cases include enforced disappearance, crimes against humanity, and murder. In all, there have been over a dozen trials in major cases arising from the armed conflict, while many more cases have remained stalled in pre-​trial proceedings. As a result, some of the planners and leaders of the atrocities of the internal armed conflict have been brought to justice, while others have died of natural causes before they could be indicted.

3.3.1. The genocide trials The most well-​known prosecution was the 2013 genocide trial of former military junta head Efrain Ríos Montt and his chief of intelligence. The trial represents the first time a genocide charge against a former head of state has been heard in a domestic court in Latin America about crimes committed on national territory. The long road to trial began in 2001, when the Center for Human Rights Legal Action (CALDH) brought a complaint alleging genocide and “crimes against duties to humanity” against several members of the army high command during the internal armed conflict on behalf of victim associations. The case went nowhere for years, but when Ríos Montt lost his parliamentary immunity in 2012, a window of opportunity opened up. The joint trial of former head of state Ríos Montt and Intelligence Chief Rodriguez Sánchez began on March 21  A good summary of the case can be found in the proceedings before the Inter-​American Court of Human Rights: Myrna Mack Chang v. Guatemala (Sentencia) Series C No. 101 (23 November 2003). 22 “Dos Erres Massacre: Ex-​ Soldier Sentenced For Killing 171” (2018) BBC News, November 22. Available at: https://​www.bbc.com/​news/​world-​latin-​america-​46302000 (Accessed: October 3, 2019); Doyle, K., and Willard, E. (2011) “27 Years Later, Justice for Fernando García” National Security Archive. Available at: https://​nsarchive2.gwu.edu/​NSAEBB/​NSAEBB337/​ (Accessed: October 3, 2019); “Guatemala Ex-​Police Chief Sentenced Over Embassy Attack,” (2015), BBC News, January 20, at https://​ www.bbc.com/​news/​world-​latin-​america-​30895524 (Accessed: June 4, 2019).

888   Naomi Roht-Arriaza 19, 2013. In some ways, it was legally straightforward. The charges against the two former military leaders are based on the Guatemalan penal code. Since at least 1973, the penal code has contained provisions on genocide and “crimes against obligations to humanity.”23 Because these provisions have long been part of Guatemalan law, unlike in other Latin American cases, the trial raised no issues of lack of international crimes in the Penal Code or the application of retrospective law. Moreover, as mentioned, Guatemala’s 1996 amnesty law specifically excludes genocide and other international crimes, and although Ríos Montt tried to claim that he was covered by an earlier amnesty law, to date the courts have rejected that argument.24 The case was filed in 2001, just within the domestic 20-​year statute of limitations for genocide. While the case in Guatemala stalled, in 1999, Nobel Prize winner and indigenous rights advocate Rigoberta Menchú brought a complaint in the Spanish national court against a large number of military and security force members, including Ríos Montt, for genocide and other crimes. After years of wrangling over jurisdiction, (Roht-​Arriaza, 2008) the Spanish judge allowed expert witnesses to testify as to the causes, patterns, targets, and perpetrators of genocide. The judge also received key military documentation. Those expert testimonies and key documents were transferred to Guatemala when a domestic trial possibility opened up, and some of the same experts were used during the 2013 trial. The trial in Guatemala was facilitated by the earlier creation of “high-​risk” courts for complex criminal cases, which provided extra security to judges along with more training, and centralized controversial or risky cases in Guatemala City in a single court with three-​ judge panels presiding. The chief judge of the Ríos Montt panel, Judge Yassmin Barrios, had previously been a judge in the Myrna Mack and Archbishop Gerardi cases. A key change was the 2010 appointment of Claudia Paz y Paz as Chief Prosecutor; Paz y Paz came from a human rights and international criminal law background and strengthened the Human Rights unit at the Prosecutor’s office. The trial began in March 2013, with 1,771 murders and 29,000 people forcibly displaced in the indictment. Defense counsel argued that there was no genocide, because the intent was to destroy a political insurgency, not an ethnic group, and the army had acted to protect, not harm, the civilian population. There were no written orders to attack civilians, and the military plans that had been presented showed no such orders. Massacres were lamentable “excesses” of war and had been committed by both sides, so the defense claimed it was unfair to try only one side. In any case, they argued, there was no proof that either defendant personally ordered, supervised, implemented, or indeed was in an operational position where he could have ordered the massacres. The defense presented few witnesses, and those who appeared had little concrete evidence to present. Rather, the defense strategy relied on delay and procedural wrangling to tie the trial up in knots. The strategy, unfortunately, was ultimately successful. 23 Although

the latter crime sounds like crimes against humanity, its text actually implements Guatemala’s obligations under the 1949 Geneva Conventions. Articles 376 and 378 of the Penal Code, Decreto 17-​73, Available at https://​www.un.org/​Depts/​los/​LEGISLATIONANDTREATIES/​PDFFILES/​ GTM_​codigo_​penal.pdf (Accessed: October 3, 2019). 24  Rios Montt v. Guatemala (Judgement Summary of the Constitutional Court of Guatemala) (2013) Available at: https://​www.prensacomunitaria.org/​no-​aplica-​amnistia-​en-​los-​delitos-​de-​genocidio-​y-​ violaciones-​graves-​de-​derechos-​humanos/​#_​ftn2 (Accessed: October 3, 2019).

Guatemala   889 Meanwhile, the prosecution’s strategy relied on a combination of military documents and reports, eyewitnesses and experts, including dozens of forensics experts who had conducted exhumations of graves in the area of northern Guatemala where most Ixiles lived. Nearly 100 eyewitnesses and survivors of massacres, mass rape, and other forms of gender-​based violence, torture, and destruction testified to repeated patterns of gruesome killings, torture, rape, destruction, and persecution throughout the Ixil region, which could not have been the result of lower-​level officials’ independent decisions. In a day of dramatic testimony, 10 women, their names withheld and their faces covered with their shawls, told of repeated rape in their communities and sexual slavery at military bases. The prosecution entered into evidence military plans that discussed eliminating “internal enemies,” and a specific set of military plans and communications, known as Plan Sofía, that included detailed reports from the field of military patrols killing civilians (children are referred to as “chocolates” in the documents) and plans for scorched-​earth tactics throughout the Ixil region. One of these plans explained that “the lives of women and children should be respected to the extent possible,” leaving open the possibility of killing civilians.25 In all, close to 50 experts testified for the prosecution, most of them on the results of exhumations of bodies from the region. The nature of the expert testimony set a high standard. One expert testified about massive forced displacement and about attacks on the displaced that made clear that they were a target, even when any conceivable military necessity had passed. Another talked about her research on elite attitudes toward indigenous Guatemalans and how pervasive and long-​standing racism had set the stage for genocide. Another expert used statistics to show that the disproportional number of indigenous versus non-​indigenous deaths in the region during the genocide years could not possibly be random; military experts testified to the chain of command and communications, while anthropologists discussed the structure and culture of the target communities and the effect of the anti-​Ixil campaigns. A U.S.-​based filmmaker showed footage of Ríos Montt, interviewed in 1982, affirming that he knew and controlled everything the military was doing. Many of the experts were foreigners, thought to present less of a security risk than residents of Guatemala. The prosecutor’s original strategy had involved bringing genocide charges against Ríos Montt’s former chief of staff and minister of defense as well, but they were excused from trial on grounds of ill health. Given the advanced age of the defendants and the existing political polarization and fragile security situation in Guatemala, the prosecutor’s office chose to focus on the best-​documented of the several areas where the CEH had indicated that genocide occurred, rather than to try to encompass them in a single, larger case. In the end, organized groups of victims from elsewhere supported the limited prosecution, seeing themselves represented in the overall charges. All the prosecution’s evidence was extensively reproduced in the May 10, 2013 verdict. The judges explained, in almost 800 pages, why each piece of evidence showed the necessary elements of genocide. The panel of judges found Ríos Montt guilty on both counts for organizing and ordering the plans, and for failing to stop the acts, despite necessarily

25  Tribunal Primero de Sentencia Penal,Narcoactividad y Delitos Contra el Ambiente “A” (First Court of Criminal Justice, Drug Trafficking and Environmental Crimes “A” Chamber) (Sentencia) No. C-​01078-​ 2011-​00015 (19 May 2013), p. 16.

890   Naomi Roht-Arriaza knowing of them. He was also convicted of crimes against humanity under Guatemalan law and sentenced to a total of 80 years in prison. His intelligence chief, Rodriguez Sánchez, was acquitted on both counts on grounds that he had no operational responsibilities and so could not have ordered or stopped the crimes. The prosecution’s theory of the case, which the trial court accepted, was that there was intent to destroy the Ixil-​Maya people, in part—​that is, those who refused to submit to army domination. The Ixil-​Maya were easily characterized as an ethnic group who speak their own language (many testified in Ixil) and have their own territory and customs. The prosecution put on evidence that they were killed, wounded, subjected to unbearable conditions of life, and their children were transferred to another group—​all acts constituting genocide. The unbearable conditions of life involved the months, and in some cases years, that people spent hiding in the jungle, with little or nothing to eat, no medical care or shelter, and under constant bombardment and threat. The transfer of children took place during military attacks, when some children were pulled aside by the military or PAC members and used as domestic servants, sometimes for years. The court put particular emphasis on the mental harm caused by both the destruction of the communities, goods, crops, and animals, and by the continuing attacks on survivors and the internally displaced as they fled. On the key question of specific intent to destroy the group, the prosecution argued (and the court found) a backdrop of racism and suspicion against all indigenous people and against the Ixiles in particular due to their resistance to colonial and post-​colonial domination.26 In its zeal to eradicate leftist guerrillas from the area, and given this backdrop, the army defined the entire Ixil people as an “internal enemy” to be subdued or destroyed. While the motive may have been counterinsurgency, the intent was genocidal. The key evidence of that intent was the systematic rape, mutilation, and sexual slavery of women, a practice the court found would not have occurred if the goal of the army offensive were simply to destroy an insurgent force. The judgment finds that Ríos Montt supervised, allowed, and authorized systematic attacks on the Ixil population, in a planned and organized fashion. The Army carried out the massacres using the same patterns of conduct, as part of a state policy aimed at the elimination in part of an ethnic group, which was considered the “internal enemy.” Ríos Montt never slowed or impeded these acts, despite having the ability to do so as the head of state. The judgment finds him individually criminally responsible, as the de facto head of state and commander in chief of the army. It points to specific acts that he implemented to continue and strengthen the policy of counterinsurgency, authorizing and knowing of the implementation of military plans like Victory 82, Firmness 83, and Plan Sofía (a regional

26  Caso Genocidio Ixil I, Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente “A” (Sentencia) No. C-​01078-​2011-​00015 (19 May 2013). For English summaries of the trial and judgement, see International Justice Monitor (2013) available at: https://​www.ijmonitor.org/​2013/​ 05/​rios-​montt-​convicted-​of-​genocide-​and-​crimes-​against-​humanity-​the-​sentence-​and-​its-​aftermath/​ (Accessed: March 17, 2020) A copy of the full 800-​plus-​page judgement is available in Spanish, in book form, published by the Center for Legal Action on Human Rights, see also caldh.org.gt. A summary is available in English, along with the Constitutional Court judgement annulling the conviction, Open Society Foundation (2013) Judging a Dictator: The Trial of Rios Montt. Available at https://​ www.opensocietyfoundations.org/ ​ publications/ ​ judging-​ d ictator-​ t rial-​ g uatemala-​ s -​ r ios-​ m ontt. (Accessed: October 3, 2019).

Guatemala   891 military plan for the Ixil region). “He knew about everything that was happening in the villages of Quiché Province, all the massacres that were being committed and he didn’t stop them, even though he had the power to do so” (cited in Burt, 2013). The verdict was widely disseminated, but short-​lived. On May 20, 2013, the Constitutional Court ordered the sentence annulled and held that the trial must restart from where it stood on April 19, when a lower court accepted one of multiple defense protests that Ríos Montt’s due process rights were being violated. The order came after defense attempts to derail the proceedings through over a hundred motions and claims of constitutional violations (known as amparo), many of them apparently manufactured just to throw sand in the gears of the proceedings. The Constitutional Court’s three-​to-​two decision vacating the proceedings was based on claims of due process violations.27 The dissenting judges noted that since a verdict had already been issued, the proper recourse for alleged improprieties was through an appeal, not an interim constitutional challenge. Eventually, the same court ruled that the trial had to start again; because they had already ruled, the existing panel of judges recused themselves. With no final judgment, previously acquitted chief of intelligence Rodriguez Sánchez too had to be retried. After several years of delays caused in part by Ríos Montt’s diagnosis of dementia and motions by both sides, the courts held that while Ríos Montt was incapable of understanding a public trial and so had to be tried under the secret procedure provided for such cases (which would result in no jail time if convicted), Rodriguez Sánchez should be tried in open court. A strange, bifurcated procedure followed, with witnesses testifying once a week behind closed doors in the morning, and in the afternoon to the same judges in public hearings. Many of the same witnesses from 2013 testified, although some were then so old and weak that the court journeyed to the Ixil area to hear their testimony. The proceedings against Ríos Montt ended when he died in April 2018. Attention then turned to the remaining defendant. On September 26, 2018, a three-​judge panel confirmed once again that genocide had been committed in the Ixil area. The panel unanimously found that the civilian population had been treated like an “internal enemy” and that there was intent to exterminate the population. Acts including massacres, rapes, killing of children and elders, and attacks on fleeing communities were again part of the court’s judgment. And yet, when it came to convicting the individual defendant, the panel split two to one. The majority found Rodríguez Sánchez not guilty, because his role as intelligence chief was not part of the chain of command and he had advisory, rather than operational, duties. The dissenting judge, Sarah Yoc Yoc, filed an impassioned dissenting opinion, finding that Rodríguez Sánchez had chosen the targets and made the determinations as to who was an internal enemy and, therefore, was responsible for the high number of deaths. The result, as one survivor observed, is that “genocide was committed but somehow no one is responsible” (Burt, 2018). Some of the architects of the genocide have been tried and convicted for other crimes. For example, Benedicto Lucas García, former Army Chief of Staff and Minister of Defense, who was key to the creation of the PAC, was finally convicted in a notorious case of enforced disappearance of a 14-​year-​old boy in 1981 and the illegal detention, torture, and rape

27  Corte Constitucional, sobre Amparo de la Tercera Cámera de Apelaciones de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente, Case 1904-​201 (20 May 2013).

892   Naomi Roht-Arriaza of his older sister, who was detained in a military sweep and held in a barracks. She escaped, and troops searching for her took away her little brother, who has never been found. Along with Lucas García, former head of military intelligence Manuel Callejas y Callejas, long known as one of the powers-​that-​be in Guatemala and head of a military intelligence-​based organized crime ring called the Cofradía, was also convicted after a two-​month trial in May 2018 (Burt and Estrada, 2018). The same two defendants, along with retired Colonel César Octavio Noguera Argueta, former chief of military operations, are currently in pre-​trial proceedings related to genocide in the Ixil area during the period immediately before Ríos Montt became head of state, under the regime of General Romeo Lucas García (Benedicto’s brother) (Burt and Estrada, 2020).

3.3.2. Reaction and counterreaction to the genocide charge The 2013 genocide trial gave rise to strong reactions on both sides. The military, predictably, denied that there was any genocide, although they admitted that there might have been lamentable excesses, and eventually, that there might have been war crimes. Civilian elites, including a number of people who had been involved in the peace process, decried the proceedings as stigmatizing Guatemala in the international community and unfairly mischaracterizing a counterinsurgency war as genocide. Many of these critics admitted that crimes against humanity had indeed been committed, but strenuously objected to the characterization of it as genocide. The far right, led by the so-​called Foundation against Terrorism, attacked the judges, the prosecutors and plaintiffs’ attorneys, and the social activists who witnessed the trial. After the verdict, the backlash was not long in coming. Chief Prosecutor Paz y Paz’s term was cut short, Judge Barrios was the subject of a bar association complaint (only much later dismissed) for insulting one of the defense lawyers, and attacks on human rights defenders intensified. The Congress periodically proposes a new amnesty for those convicted in cases connected to past human rights violations (as well as those implicated in corruption). On the other hand, the trial opened up discussions about what had happened, especially for young people and those urban dwellers who had no direct experience of the atrocities. Although the CEH was an important precursor of the trial, its limitations were also clear: due to continuing danger to potential witnesses, the CEH had held no public hearings. The report itself, after the massive presentation in the capital, had been buried and was not widely known to new generations. Even within families, the history of those years was largely silenced. The voices and stories of the victims of genocide had not been directly heard—​until now. Posters appeared on billboards, walls, and buses all over the capital city, affirming that “sí hubo genocidio”—​genocide happened. Why would the prosecutors’ office and the lawyers for the victims insist on calling the crime genocide? After all, a verdict of crimes against humanity would have put the defendants in prison for 30 years, a life sentence at their age. It would have been less risky and garnered support from a greater segment of society. There are at least two answers. First, from a legal perspective, the framing of the case as genocide, despite the obvious difficulties, had a few advantages. It allowed discussion of overall patterns of repression in the Ixil region and beyond, and a focus on the massive nature of the Army’s actions. The framing of “crimes against duties of humanity” in the Guatemalan penal code refers to

Guatemala   893 inhumane acts against civilian populations but does not require that those acts be widespread or systematic. Second, and more importantly, the victims’ organizations insisted that the trial be for genocide. According to indigenous scholars, from the Spanish conquest until the current period there have been three genocides; the trial was concerned with the fourth. The victims stressed the continuity of genocidal practice from 1524 until present, including the creation of a racialized state and the dispossession of indigenous lands and resources (Velásquez Nimatuj, 2014). They wanted that narrative to be at the center of the trial. Indeed, in the victims’ petition for reparations, the key demand (not granted by the court) was for return of lands and resources. However, the court did order a series of symbolic reparations.

3.4.  Reparations The CEH had recommended a national reparations program, including both individual and collective reparations, with a focus on widows, the elderly, and other vulnerable groups (Balsells, 2001, p. 139). Political opposition stalled its implementation until 2005. On paper, the National Reparations Program (Programa Nacional de Resarcimiento, PNR) sounded impressive. It originally had a 10-​year mandate from 2003 to 2013, with a planned annual budget of 300 million Quetzales (about $37.5 million). The categories of violations to be repaired include forced disappearances, summary executions, physical or mental torture, forced displacement, forced recruiting of child soldiers, sexual violence and crimes against children, and massacres; massacres and forced displacement allowed victims to file for collective reparations.28 The PNR also, in theory, proposed to approach reparations from five integrated angles: material restitution, individual economic reparations, cultural restitution, measures to dignify victims, and psycho-​social reparation. In practice, difficulties arose. First, the reparations issue became conflated with the question of payments to former paramilitary PAC (civil patrol) members for services rendered to the military. Organized and vocal groups of ex-​PAC members claimed that the state owed them millions of dollars in unpaid wages and reparations for their own suffering during the internal armed conflict. This outraged the victim groups, and the government finally agreed to exclude PACs, as well as ex-​guerrilla fighters, from the PNR but would pay PACs from a separate fund.29 From a ground’s-​eye view, it looked to many people like the government was distributing checks right and left; all efforts to use reparations as a means of dignifying the victims, rather than a simple handout, were lost in the infighting, strategic opportunism, and confusion over who constitutes a “victim” and why. Moreover, many of the PAC members had been forced to join, and their families had been attacked and killed,

28  Acuerdo Gubernativo 258-​2003, May 7, 2003; Acuerdo Gubernativo 188-​2004, July 7, 2004 contains the basic structure and definitions of the program. 29 Impunity Watch (2008) Reconociendo el Pasado: Desafios para Combatir la Impunidad en Guatemala. Nov. 2008. Available at: http://​www.impunitywatch.org/​docs/​Guatemala_​BCR_​Summary_​ Spanish.pdf. (Accessed: October 3, 2019).

894   Naomi Roht-Arriaza yet once they were on a register as PAC members, they were excluded from the PNR despite their losses. This created a sense of unfairness (Viaene, 2011). In 2006 the executive changed the governing structure of the PNR and opened regional field offices throughout the country. The focus remained on individual economic compensation. Compensation for loss of a loved one came to about US $3,000, with the maximum for an individual’s losses capped at US $6,800. At first, checks were distributed in part in areas where either the government party or intermediary NGOs had a constituency, leading to charges of patronage in the program. Eventually, the program became just another development program, used to shore up support for the government.30 The question of collective reparations for atrocity and the close relationship between reparations (especially when seen as restitution and compensation) and development has been a source of considerable academic debate (Roht-​Arriaza and Orlovsky, 2009). In part this is because individual monetary reparations have been problematic, rejected by survivors who felt that the life of their family members has no price, and that therefore it was highly problematic to frame resarcimiento in terms of paying for the loss of life, creating feelings of guilt and dissatisfaction.31 Guatemala turned to using “collective reparations” to implement livelihood, agriculture, and other development-​type projects in highly impacted areas as a more cost-​effective use of reparations monies, although in practice not much was done.32 Other types of reparations, both prior to and under the auspices of the PNR, have been less problematic. For example, communities have taken the lead in the exhumation and reburial of those killed during the conflict. Guatemala is riddled with clandestine and unmarked graves. As is true in other places, the lack of appropriate burial ceremonies and of a place to mourn and remember the dead has been a source of anguish (Stover and Shigkane, 2005), especially since the local culture posits a continuing relationship between the dead and the living that requires proper attention to the dead. As elsewhere, one of the most common needs of survivors is to recover the body and rebury it with the appropriate (Catholic, Mayan, Protestant, or a combination) ceremonies. Once bodies have been exhumed and—​when possible—​identified, many local communities have organized massive public reburial ceremonies. Along with forensic anthropology, a number of groups specializing in dealing with trauma, using Western or Mayan methodologies (or a combination of the two) have provided useful psycho-​social help to survivors. Some communities have been rebuilt near the original hamlet where they lived before the massacres, leaving the ruins of the old one as a mute history lesson for new generations. While official school curricula barely mention the internal armed conflict, much less refer to it as genocide, there have been a significant number of local initiatives aimed at remembering, commemorating, and teaching the new generation about what happened (Arriaza and Roht-​Arriaza, 2008b). 30 In

addition to the PNR, several Guatemalan communities have received reparations through judgements of the Inter-​American Court of Human Rights. These reparations, although considerably larger on average than those of the PNR, have also caused divisions within communities and families. See generally Due Process of Law Foundation (2007) Victims Unsilenced (Washington, D.C.: DPLF). 31  This is not unique to Guatemala. The Mothers of the Plaza de Mayo in Argentina, for example, long considered payments for their disappeared children to be “blood money” (Guembe, 2006). 32  See the Program’s website, www.pnr.gov.gt, for examples.

Guatemala   895

3.5. Institutional reform Immediately after the peace accords, the military was reduced in size, the most notorious security forces were disbanded, and a new police force was created to ensure internal security. In the absence of robust peacetime job opportunities, many former military men opened private security firms, while others took their skills and knowledge to the drug cartels just then establishing routes through Central America to the United States. The judiciary was never reviewed or vetted, but in the mid-​2000s, specially trained and vetted judges were concentrated into “high-​risk courts” hearing organized crime, atrocity, and other sensitive cases in Guatemala City. Most of the institutional reforms have concerned the fight against corruption and impunity, including through the International Commission against Impunity established in 2007 (Gavigan, 2016).33

4.  Conclusion During the period from 1960 to 1996, and especially during the early 1980s, a wide range of war crimes, crimes against humanity, and, in several areas of the country, genocide, were committed in Guatemala. The context was a series of counterinsurgency campaigns pitting military rulers against both a civic opposition and a coalition of armed insurgents. After the war ended through a peace agreement, reforms to the courts combined with international pressure led—​almost two decades later—​to a few emblematic and important trials, including the trial of the former head of state Ríos Montt for genocide. The trial was key in bringing first-​hand accounts of the army’s conduct to a new generation, and in establishing the connections of that conduct to a long history of discrimination and attacks on indigenous people there. A few subsequent trials have contributed further to clarifying events during the war years, including trials focusing on sexual violence and on forced disappearance.34 Those trials have created a backlash that continues at the time of writing. 33  See also Washington Office on Latin America (2015) Report on The International Commission Against Impunity in Guatemala. Available at: https://​www.wola.org/​analysis/​wola-​report-​on-​the-​ international-​commission-​against-​impunity-​in-​guatemala-​cicig/​ (Accessed: October 3, 2019). While beyond the scope of this chapter, the subsequent fight for rule of law in Guatemala centered around the Commission against Impunity in Guatemala (CICIG), a body created in 2007 by agreement between the government and the United Nations. CICIG’s mandate was to “investigate the existence of illicit security forces and clandestine security organizations that commit crimes that affect the fundamental human rights of the citizens of Guatemala, and identify the structures of these illegal groups (including the links between such groups and State officials) as well as their activities, operating modalities and sources of financing,” dismantle and help investigate and punish such networks, and recommend legal and constitutional changes (CICIG, 2018). Faced with intense opposition from its targets, including the president at the time, it finished its work in 2019. See for example Washington Office on Latin America (2015) and Gavigan (2016). 34  The Sepur Zarco trial in 2016 and the Molina Theissen trial in 2017 were particularly important with respect to crimes of sexual violence, and the Molina Theissen case also focused on the responsibility of the army high command for forced disappearances. A third case, involving a mass grave of over 500 people found on an army base, is in pre-​trial proceedings. Sepur Zarco case, C-​01076-​2012-​00021OF.2º. First Court for Criminal Justice, Drug Trafficking and Environmental Crimes “A” (26 Feb. 2016); Molina

896   Naomi Roht-Arriaza Despite a series of legal victories, in the rural areas where genocide was committed, indigenous communities continue to fight against mining projects and hydroelectric dams that will displace large numbers, kill fish and wildlife, and ruin water quality. The results of these efforts have been mixed. Meanwhile, efforts to legitimize indigenous justice systems have failed—​twice.35 Many indigenous areas have been overrun with drug production and transport cartels with the resulting violence. Entire communities in northern Guatemala, driven by hunger and insecurity, have immigrated to the United States. The legacy of genocide, then, is ongoing. For many of the people of the Ixil region and their indigenous authorities, the genocide trials were a vindication of sorts, an official acknowledgment that they had been wronged. For others, the decisions were an oversimplification and a misreading of what actually happened. Whether they have a long-​term dissuasive effect, in the face of new attacks on judges, advocates, human rights and environmental defenders, remains to be seen.

References Arriaza, L., and Roht-​ Arriaza, N. (2008a), “Social Reconstruction as a Local Process.” International Journal of Transitional Justice 2, pp. 152–​172. Arriaza, L., and Roht-​Arriaza, N. (2008b) “Social Repair at the Local Level: The Case of Guatemala.” In: McEvoy, K., and Macgregor, L. (eds.) Transitional Justice From Below. London: Hart Publishing, pp. 143–​166. Balsells Tojo, E. (2001) Olvido o Memoria. Guatemala City: F&G Editores. Burt, J.M. (2013) “Rios Montt Convicted of Genocide and Crimes Against Humanity: The Sentence and Its Aftermath.” International Justice Monitor, May 13. Available at: https://​ www.ijmonitor.org/ ​ 2 013/ ​ 05/ ​ r ios- ​ montt- ​ c onvicted-​ of-​ genocide-​ and-​ c rimes-​ against-​ humanity-​the-​sentence-​and-​its-​aftermath/​ (Accessed: June 4, 2019). Burt, J.M. (2018) “Imperfect Justice in Guatemala,” NACLA, October 12. Available at: https://​ nacla.org/​news/​2018/​10/​12/​imperfect-​justice-​guatemala (Accessed: June 4, 2019). Burt, J.M., and Estrada, P. (2018) “The Molina-​Theissen Judgement, Part III, Reactions.” International Justice Monitor, August 7. Available at: https://​www.ijmonitor.org/​2018/​08/​ the-​molina-​theissen-​judgement-​part-​iii-​reactions/​ (Accessed: June 4, 2019). Burt, J.M., and Estrada, P (2020) “No One Told This to Me. I Saw It with My Own Eyes.” Survivor Addresses Court As Evidentiary Phase of Maya Ixil Genocide Case Nears Conclusion,” International Justice Monitor, March 17. Available at: https://​www.ijmonitor.org/​2020/​ 03/​no-​one-​told-​this-​to-​me-​i-​saw-​it-​with-​my-​own-​e yes-​survivor-​addresses-​court-​as-​ evidentiary-​phase-​of-​maya-​ixil-​genocide-​case-​nears-​conclusion/​ (Accessed: March 18, 2020). Casaus Arzú, M. (2007) Guatemala, Linaje y Racismo. 4th ed. Guatemala City: F&G Editores.

Theissen case, C-​01077-​1998-​00002 OF.1ro, First Court for Criminal Justice, Drug Trafficking and Environmental Crimes “C” (22 May 2018). The Military Diary case, described earlier, went to trial in May 2021. 35  Referendum on a constitutional amendment failed in 1999. In 2017, Indigenous authorities withdrew a proposal to recognize Indigenous justice for fear that it would sink a package of unrelated judicial and prosecutorial reform measures.

Guatemala   897 Doyle, K., and Willard, E. (2011) “27 Years Later, Justice for Fernando García.” National Security Archive. Available at: https://​nsarchive2.gwu.edu/​NSAEBB/​NSAEBB337/​ (Accessed: October 3, 2019). Falla, R. (1985, 2007) Masacres de la Selva. Guatemala City: Editorial Universitaria. Gavigan, P. (2016) Against the Odds: CICIG in Guatemala. New York: Open Society Justice Initiative. Goldman, F. (2007) The Art of Political Murder: Who Killed the Bishop? New York: Grove Press. Grandin, G. (2000) The Blood of Guatemala: A History of Race and Nation. Durham, NC: Duke University Press. Grandin, G. (2009) “Politics by Other Means.” In Higonnet, E. (ed). Quiet Genocide: Guatemala 1981–​83. Abingdon: Transaction, pp. 1–​16. Guembe, M.J. (2006) “Economic Reparations for Grave Human Rights Violations; The Argentine Experience.” In: de Grieff, P. (ed.) The Handbook of Reparations. New York: Oxford University Press, pp. 21–​54. Higonnet, E., ed. (2009) Quiet Genocide: Guatemala 1981–​83. Abingdon: Transaction. Jonas, S. (2000) Of Centaurs and Doves: Guatemala’s Peace Process. Boulder, CO: Westview Press. Kinzer, S. (2005) Bitter Fruit: The Story of the American Coup in Guatemala. Revised 2nd ed. Boston: Harvard University Press. LaFeber, W. (1984) Inevitable Revolutions: The United States in Central America. New York: WW. Norton. Manz, B. (2004) Paradise in Ashes. Berkeley: University of California Press. McGill, W. (1989) The Guatemalan Counter-​Insurgency Strategy. Carlyle Barracks, PA: U.S. Army War College. Available at: https://​apps.dtic.mil/​dtic/​tr/​fulltext/​u2/​a208050.pdf (Accessed: June 4, 2019). Palacios, C. (2018) “Por qué 20 Años Después no Sabemos Quién Mató a Monseñor Gerardi?” Nómada, April 26. Available at https://​nomada.gt/​identidades/​de-​donde-​venimos/​las-​ deudas-​del-​mp-​p ara-​d ar-​con-​los-​autores-​intelectuales-​del-​asesinato-​de-​monsenor-​ gerardi/​(Accessed: October 3, 2019). Popkin, M. (1996) “Guatemala’s National Reconciliation Law: Combating Impunity or Continuing It?” Revista IIDH 24, pp.174-​184. Roht-​Arriaza, N. (2008) “Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-​Armed Conflict Guatemala.” Chicago Journal of International Law 1(9), pp. 79–​108. Roht-​Arriaza, N., and Orlovsky, K. (2009) “Reparations and Development: A Complementary Relationship.” In: De Greiff, P., and Duthie, R. (eds.) Transitional Justice and Development. New York: SSRC. pp. 15–​35. Sanford, V. (2003) Buried Secrets: Truth and Human Rights in Guatemala. New York: Palgrave McMillan. Sieder, R. (1998) “Conclusions.” In: Sieder, R., ed., Guatemala after the Peace Accords. London: Institute for Latin American Studies, pp. 245–​255. Sieder, R. (2001) “War, Peace, Memory Politics in Central America.” In: Barahona de Brito, A., González-​Enríquez, C., and Aguilar, P. (eds.) The Politics of Memory: Transitional Justice in Democratizing Societies. New York: Oxford University Press, pp. 161–​190. Stover, E., and Shigkane, R. (2005) “Exhumation of Mass Graves: Balancing Legal and Humanitarian Needs.” In: Stover, E., and Weinstein, H. (eds.) My Neighbor, My Enemy (Cambridge: Cambridge University Press), pp. 85–​103. Van Schaack, B. (1998). “The Definition of Crimes against Humanity: Resolving the Incoherence.” 37 Columbia. Journal of Transnational Law 37, pp. 787–​850.

898   Naomi Roht-Arriaza Velasquez Nimatuj, I.A. (2014) “El Genocidio Frente a la Historia y la Memoria.” Plaza Publica, January 22. Available at: https://​www.plazapublica.com.gt/​content/​el-​genocidio-​frente-​la-​ historia-​y-​la-​memoria (Accessed: June 4, 2019). Viaene, L. (2011) “Dealing with the Legacy of Gross Human Rights Violations in Guatemala: Grasping the Mismatch Between Post-​Conflict Macro Level Policies and Micro Level Processes.” International Journal of Human Rights 15(7), pp. 1160–​1181. Wilson, R. (1998) “The Politics of Remembering and Forgetting in Guatemala.” In: Sieder, R. (ed.) Guatemala After the Peace Accords. London: Institute of Latin American Studies, University of London, 1998, pp. 181–​195.

CHAPTER 37

Ge no cide aga i nst t h e Êzidî s in I raq The Sinjār Massacre and its Aftermath Kjell Anderson 1.  Introduction—​Sinjār: The Aftermath On a winter day in January 2016, I stood atop Mount Sinjār. It had been a mere two months since a coalition of local Iraqi, Syrian, and Turkish Kurdish forces had wrested control of the town of Sinjār back from the Islamic State of Iraq and the Levant (ISIS, Islamic State). It was a scene of utter devastation. There was not much city left to speak of, and the remnants of successive episodes of mass violence were arrayed before me. At the peak there was a hastily erected concrete monument to the Peshmerga’s valiant defense of the city—​a concrete “technical” (a pickup truck with a mounted machine gun, a ubiquitous weapons platform in the ISIS conflict).1 The battle had scarcely ended, but the KDP (Kurdish Democratic Party) was moving quickly to (re)write the history of Sinjār and its aftermath. In the foreground, the dusty slope was littered with strewn clothing, personal effects, and rusted trucks abandoned in the desperate uphill scramble of Êzidî2 families fleeing from the Islamic State, a world in which they did not belong. Past this dumping ground, the ruins of the city itself were visible—​scarcely a building left standing amid piles of rubble. There were still bodies in the streets, seared in the heat of falling bombs and scavenged by dogs. Someone had erected a crooked white cross in the ruins of a demolished church. Past the ruined city stood the border of the Islamic State, marked by earthwork fortifications populated by Peshmerga and mannequin alike (placed in the ramparts to absorb sniper’s bullets and to give the impression of greater numbers). Beyond this frontier a town burned, the cobalt blue sky punctuated by streaming black smoke. Borders are often arbitrary and ephemeral, but this border was all too real for many Êzidî—​a hard line in the soil between

1 

The term “Peshmerga” is a blanket term used for all Kurdish military forces in Iraq. I have chosen to use the term “Êzidî,” rather than “Yazidi,” as this is the preferred nomenclature of the Êzidîs themselves. 2 

900   Kjell Anderson the Êzidî homeland and a brutal Islamist theocracy, between community, and, for many Êzidî women, enslavement. The silence was punctuated by distant thunder, not portending rain to nourish parched soil, but aerial bombardment against IS positions in Syria. What had happened in Sinjār? The Sinjār Massacre commenced on August 4, 2014. The Êzidî religious minority were driven by the Islamic State from their sacred homeland in the Sinjār Mountains of northwestern Iraq, enslaved, forced to convert to Islam, and killed if they refused. The massacre was systematic: openly discussed by the perpetrators as a matter of policy, informed by their stated ideology, and targeting all Êzidîs in regions under their effective control (Moradi and Anderson, 2016). In this chapter I will analyze the Êzidî Genocide in Sinjār. In particular, I will examine the situation of the Sinjār Êzidîs before, during, and after the massacre and associated violence. To speak of the Êzidîs after violence is premature, in some ways, as there are still Êzidis enslaved to Islamic State fighters, and the effects of the violence certainly continue into the present day. I will focus on the Sinjār area as the homeland of the Êzidî and analyze the character of Islamic State violence against Êzidîs in this region. First, this chapter examines Sinjār before ISIS—​giving a concise background of the Êzidî religion, culture, and intercommunal relations prior to the arrival of ISIS. Second, the Sinjār massacre will be examined in terms of pattern and character of attacks by ISIS against the Êzidîs. Third, the legal characterization of the attacks will be considered—​why can we characterize the treatment of the Êzidî by ISIS a genocide? Finally, I will consider the impacts of the massacre in terms of victim trauma and legal accountability. I will draw from interviews conducted by myself in northern Iraq in January 2016,3 and by anthropologist Fazil Moradi in September 2014 (Moradi and Anderson, 2016), as well as a range of secondary sources and primary documents. I will begin, however, by introducing the Êzidî.

2. The Êzidî The Êzidî are a little-​known religious group. ISIS’ atrocities against the Êzidî have paradoxically brought them some temporary notoriety, while also imperiling their continued existence. There are different accounts as to the origin of the “Êzidî” or “Yazidi/​Yezidi” (as they are often termed by outsiders). Some argue that the name is derived from Yazid ibn Muawiya, the second caliph of the Omayyad Dynasty, while others locate the term in the Middle

3  These interviews with 20 respondents were conducted as part of a January 2016 NGO/​scholarly fact-​finding trip on Islamic State atrocities against minorities in northern Iraq. This trip was facilitated by Êzidî and Christian NGOs in Europe and Iraq and included myself, Elissa von Joeden Forgey of Keene State College, and Irene Victoria Massimino of Universidad Nacional de Tres de Febrero. Beyond interviewing victims in refugee camps and other locations, we also visited sites of violence such as Sinjar and several mass graves in the region. Interviews were conducted with the aid of a translator and interview subjects were, in some cases, randomly selected, and in other cases recommended by NGO intermediaries.

Genocide against the Êzidîs in Iraq    901 Persian term yazad (“divine being”).4 The implications of these versions of history are significant in terms of how outsiders view the Êzidî—​are they a reformist/​heretical offshoot of Islam or an ancient religious group from Iran? Both of these origin stories, however, are likely overly simplistic. Êzidî cosmologies hold that God created the universe from a pearl and entrusted Earth’s protection to seven angels, the most important of which was Tawsi Melek, the Peacock Angel.5 Tawsi Melek was an angel who defied God, a story reminiscent of “fallen angels” like the Christian Lucifer and the Muslim Iblis, but, unlike Lucifer or Iblis, Melek’s story is one of redemption; he was forgiven by God and came to serve as an intermediary between God and Man and a force of good in the world. Tawsi Melek became indivisible from God, in a similar manner to the Christian Holy Trinity of God, Jesus, and the Holy Spirit. Tawsi Melek first landed on Earth at Lalish (near Duhok, in northwestern Iraq), which is now the holiest site of Êzidîsm alongside the Sinjār Mountains. The temple complex centers on the tomb of Sufi mystic Sheikh Adi ibn Musafir, who died in the 12th century. Abu Ibn Musafir was said to be an incarnation of Tawsi Malek and is considered one of the founders of Êzidîsm. All Êzidîs are expected to make a pilgrimage to Lalish at some point in their lives (Holland, 2017). Over time, the followers of Sheikh Musafir increasingly incorporated elements of older Persian traditions into their beliefs and practices, and this alienated them from Islam and, ultimately, other monotheistic religions (Otten, 2017). Êzidî practices include, for example, praying five times a day while facing the sun, and setting aside Wednesday as a day of worship. The Êzidî also maintain a belief in reincarnation. These beliefs are maintained through oral transmission (stories).

3. Sinjār before ISIS: The Persecution of the Êzidî The persecution of Êzidîsm at the hands of other faiths has become fundamental to Êzidî identity. For example, a year after an 1837 Ottoman attack led by governor Hafiz Pasha, which resulted in forced conversions and enslavement of Êzidîs, a foreign observer noted Êzidîs sitting around a campfire “smoking and singing a song of lament for the taking of Sinjār, in which the name of Hafiz Pasha was introduced at the end of each verse” (Otten, 2017, p. 20). The current atrocities in Sinjār have joined a list of some 74 purported genocides (Fermān) suffered by the Êzidîs.6 The Sinjār Mountains have long served as an Êzidî stronghold to survive these cataclysms. An Êzidî couple interviewed by anthropologist Fazil Moradi in 2014 recounted: “Although Dāʿsh [Arabic abbreviation of IS] tried to kill us, we still felt safe and protected on Mount

4  Syrian Accountability Project (2017) Report on the Yazidi Genocide: Mapping Atrocity in Iraq and Syria. Available at: http://​www.iamsyria.org/​uploads/​1/​3/​0/​2/​13025755/​sap_​yazidi_​conflict_​map_​2017_​_​ 1_​.pdf (Accessed:May 10, 2019) (Syrian Accountability Project 2017), p. 3. 5  Syrian Accountability Project 2017. 6  The term “Fermān” literally means “order of extermination” in Kurdish.

902   Kjell Anderson Şingāl [Sinjār]. It carries and testifies to our history of persecutions. It is our witness. It is our home. Here we live as if we do not exist. We have lost everything” (Moradi and Anderson, 2016, p. 129). The Êzidî strive to maintain their identity in transitory circumstances. A 2011 estimate numbered the Êzidî community in Iraq at approximately 500,000 to 600,000 individuals with a further diaspora population of 200,000.7 Persecution has altered these numbers since the estimate was made; thousands of Êzidî have been killed and hundreds of thousands have been internally displaced or made refugees in the atrocities committed by ISIS.8 The Êzidîs were vulnerable even before ISIS attacked. Saddam Hussein’s “Arabization” policy sought to entrench central rule by increasing the Arab (rather than Kurdish) presence in the north, forcibly displacing many Êzidîs (among a quarter of a million Kurds) to concrete villages in the valley floors, surrounded by Sunni Arab farmlands. This was presented as a modernization project but also furthered government control (Otten, 2017). Êzidîs are endogamous, and marriage between the three Êzidî castes is also prohibited, as is conversion to Êzidîsm.9 In the past, contact with outsiders was further restricted (such as the sharing of drinking vessels) to minimize spiritual pollution. While these practices may have preserved the faith, they also likely fostered communal misunderstandings. In Sinjār, communal relations were ensured by the kreef system which bound Êzidî and non-​ Êzidî families together. Each child had a kreef—​a godparent (who was often a Sunni Arab)—​ and male children would be circumcised on the lap of this kreef. A local Sunni Arab recounts, “if anyone fought with [the Êzidîs] the kreef would come and stand at their door and say ‘my blood for your blood’’’ (Otten, 2017, p. 44). Although intercommunal relations were largely positive in a day-​to-​day sense, there was a significant amount of resentment toward the Êzidîs by many Sunni Arabs. Kurdish moves to control the region meant that Arabs from surrounding areas had to pass through Peshmerga checkpoints, answer questions, and show identification in order to visit Sinjār and other predominantly Êzidî towns (Otten, 2017). Intercommunal relations were worsened after a 2007 honor killing in Bashiqa (Nineveh province) when Dua Khalil Aswad, a 17-​year-​old Êzidî girl, was stoned to death in public by members of the Êzidî community because she had purportedly converted to Islam to run away with a local Sunni boy. Êzidî students were driven from Mosul University by Muslims angry with the perceived slight, and, in a separate incident, 23 Êzidîs were taken off a bus in Mosul and shot. Later that year, there were four coordinated Islamist suicide bombings in Êzidî communities near Mosul; the attacks significantly worsened relations between Êzidîs and Muslims and undermined the relations between kreefs and their “families” (Otten, 2017). Genocide was not inevitable in Sinjār, but the escalation in violence accompanying the rise of the Islamic State strained intercommunal solidarity and drove some Muslims in northern Iraq into collaboration with ISIS.10

7 

Syrian Accountability Project 2017, p. 3. United Nations Human Rights Council (2016) “ ‘They Came to Destroy:’ ISIS Crimes Against the Yazidis.” A/​HRC/​32/​CRP.2 (United National Human Rights Council 2016). 9  There are three castes among Êzidîs: the Murids, to which most Êzidî belong; the Sheiks, from which Ezidi secular and religious leaders are drawn; and the Pirs, who are the Êzidî clerics. 10  ISIS originated as 1999 as Jama’at al-​Tawhid wal-​Jihad, an offshoot of al-​Qaeda. It participated in the insurgency against American occupation forces in Iraq before splitting from Al-​Qaeda in 2013 over 8 

Genocide against the Êzidîs in Iraq    903

4.  ISIS and the Atrocity Crimes against the Êzidî 4.1. The attack on Sinjār Against this backdrop of increasing intercommunal tensions and the seizure of Mosul in June 2014, ISIS forces swept into Sinjār at dawn on August 3, 2014. The Sinjār region was only a few kilometers from Islamic State–​controlled areas of Syria, so it was quite exposed to attack. Moreover, Sinjār was targeted by the ISIS for ideological reasons—​as the homeland of the Êzidî, the purging of Sinjār was deemed necessary to cleanse the Earth of non-​believers. There was little initial resistance, as the attack seemed to have caught the Peshmerga and local population by surprise. In some villages Êzidî men took up arms to mount a defense, but they did little to stop the onslaught. One Êzidî survivor of the Sinjār attack remembers, “we thought ISIS was going to attack the government, not the civilians . . . we were not prepared.”11 The attack on Sinjār was preceded by the sudden and nearly complete withdrawal of Kurdish Peshmerga forces. This placed the Êzidî in a situation of fundamental vulnerability; they had been promised protection by the KRG (Kurdish Regional Government) forces and coaxed into remaining in Sinjār (Otten, 2017). The abruptness of the withdrawal made it very difficult for Êzidîs to prepare any kind of self-​defense.12 Civilians fled up the mountainside, in many cases abandoning their vehicles as they ran out of fuel or became stuck in traffic.13 Those who reached the upper plateau of Mount Sinjār were besieged by ISIS forces, who did not risk confronting the Êzidî forces. Rather, they starved them out by trapping the population in precarious conditions, firing at aircraft that were attempting to drop humanitarian aid and evacuate the sick and injured.14 On the plateau there was little shelter from the climate; consequently, 40 children died from exposure.15 After the initial attack, ISIS’ treatment of the Êzidîs shifted to a new phase, focused on applying its version of Islamic order onto the local population. This involved distinguishing the “People of the Book” (authentic Muslims) from non-​Muslims. The Êzidî were seen as

doctrinal and tactical differences (Turner, 2015). In 2014, ISIS declared itself an Islamic caliphate after gaining significant territory in both Syria and Iraq. 11 

Interview with Christian man from Sinjār (January 2016), Erbil, Iraq. Several of my respondents opined that the exposure of the Êzidî was a deliberate and sinister plan by the KRG to allow ISIS to eliminate its troublesome minorities. The KRG, on the other hand, explains its sudden withdrawal from the Sinjār area as being the product of a rapid shift in the facts on the ground; according to one Peshmerga: “Many of our forces were mortared, killed, captured but we didn’t have the reinforcements to send. . . . It was very hard at the beginning: it was a new fight. . . . ISIS had a lot of equipment from the Iraqi army” (Otten, 2017, p. 58). 13  Interview with Christian man from Sinjār (January 2016), Erbil, Iraq. 14  United Nations Human Rights Council 2016, p. 7. 15  Syrian Accountability Project 2017. 12 

904   Kjell Anderson heretical, and the Islamic State sought their destruction as part of its divine mission to cleanse the Earth of non-​believers (Moradi and Anderson, 2016). I will analyze several forms of violence in what follows, including killing, forced conscription, forced marriage (conjugal slavery), and the destruction of the built environment, before proceeding to a discussion of the crime of genocide.

4.2.  Killing The ISIS divided the Êzidî population according to religious status, gender, and age. The Êzidî men and older boys captured by ISIS faced a stark choice: convert or die. Those who refused to convert were often summarily executed. These executions eliminated those considered a threat to ISIS, communicated the power of ISIS over its subject populations, and drove forced conversions. Killing was typically carried out through gunshots or throat cutting.16 A 16-​year-​old Êzidî girl describes one such scene: “After we were captured, ISIS forced us to watch them beheading some of our Yazidi men. They made the men kneel in a line in the street, with their hands tied behind their backs. The ISIS fighters took knives and cut their throats.”17 The bodies of those killed were often left in public in order to further intimidate the local population. Beyond these killings of individuals and small groups, there are also instances of larger massacres such as those that occurred in Qani and Kocho villages.18 Those men and boys who “converted” to Islam faced a different fate. They were transferred to Tel Afar, Mosul, and Baaj to do forced labor; they were also forced to adhere to all Islamic State tenets. Those who escaped capture were executed if recaptured.19 Once ISIS was satisfied that the men had converted (and could recite the Koran), they were often conscripted as ISIS fighters. From the spring of 2015 onward, however, the ISIS began to reject Êzidî conversions as insincere, and many men disappeared after this point. Hundreds of men and boys from Kocho village were massacred by the Islamic State on August 3, 2014. They had refused ISIS ultimatums to convert to Islam. According to one massacre survivor named Khaled: The men were divided into groups and driven away by two pickups. . . . I saw that they brought other groups to sites not far from us. No one was left in the village. They turned the village into an open cemetery. They told us to stretch on the ground and to put our hands behind our heads. I did not know where I was when I woke up but saw that my left arm was bleeding. All that I remember is that I was in search of a place to hide—​it was as if the bleeding arm was not mine. It took a while before I felt pain. I did not see anyone around, and the village was absolutely silent and empty. I walked for about two kilometers to a neighboring village; I hid myself inside a cattle pen from 11 a.m. to 8 p.m. I left when it was really dark. I felt that I couldn’t breathe; I had lost a lot of blood. I felt thirsty and there was no water.

16 

United Nations Human Rights Council 2016. United Nations Human Rights Council 2016, p. 8. 18  United Nations Human Rights Council 2016. 19  United Nations Human Rights Council 2016. 17 

Genocide against the Êzidîs in Iraq    905 I reached a farm at around 11 p.m. While hiding there I found my own brother and another person from our village also looking for a place to hide. They had also survived a massacre. (Moradi and Anderson, 2016, p. 129)

The massacre at Kocho village is supported by significant evidence, though full forensic exhumations and examinations have only recently commenced (Cetorelli and Ashraph, 2019). After the massacre of men from Kocho village, the women and girls were taken to the Solagh Technical Institute site (near Sinjār). The younger women were moved to Galaxy Hall (a wedding hall) in Mosul. The older women—​whom ISIS fighters considered unsuitable as wives or slaves—​were executed on August 15, 2014, and buried outside the institute in an empty swimming pool. The younger women who were awaiting transfer to Tel Afar and Mosul heard the gunshots and screams of the victims (Yazda, 2016). According to the detailed demographic work of Valeria Cetorelli and Sareta Ashraph (2019, p. 16), in Kocho, “nearly the entire population was either killed or kidnapped.” Out of a total population of 1,200 individuals in Kocho at the time of the attack, they have identified 1,161 victims, of which 628 were enslaved and subsequently rescued, and 533 are dead or missing (Cetorelli and Ashraph, 2019). This is indicative of the nature of the attack as one that targeted all of the Kocho villagers, and all Êzidî.

4.3. Forced conscription Adult men could sometimes escape massacre through forced conversion. Older boys (over the age of 10) were also forced to convert and subjected to conscription. There was a former orphanage in the Zuhur neighborhood of Mosul that was used as a training facility for Êzidî and Shia boys. As part of their conversion they were forced to pray several times a day and to recite Koranic passages. A 12-​year-​old boy recalls that “they told us that we had to become good Muslims and fight for Islam. They showed us videos of beheadings, killing and ISIS battles. [My instructor] said ‘You have to kill kuffars even if they are your fathers and brothers, because they belong to the wrong religion and they don’t worship God.’ ”20 The education of these boys was total, encompassing not just military and ideological training but also such elements as personal hygiene, sex education, and genetics (Mikhail, 2018). Groups of boys arrived every few weeks, with older children being sent directly to intensive combat training in Tel Afar (Otten, 2017). There were also training camps in Mosul and Baaj in Iraq, and Raqqa City, Tabqa, Tel Abyad, and Suluk in Syria.21 The boys’ training environment was totally immersive—​they were cut off from contacting their families and given new “Islamic” names. It is difficult to estimate exactly how many boys suffered this treatment, but it was at least several hundred.22

20 

United Nations Human Rights Council 2016, p. 18. United Nations Human Rights Council 2016. 22  United Nations Human Rights Council 2016. 21 

906   Kjell Anderson

4.4. Forced marriage Married females were separated from unmarried females, with girls under the age of eight being allowed to remain with their mothers. The unmarried females over eight were vulnerable to enslavement and forced marriage, so they often took steps to mask their unmarried status. One family in captivity pleaded with a man to have sex with their daughter so they could feign marriage and demonstrate that the daughter was not a virgin (Otten, 2017). Often, they would try to make themselves unappealing by rubbing dirt and ashes on their faces, ceasing to bathe, or intentionally injuring themselves. Members of Sinjār’s Arab community assisted the ISIS at times in identifying women feigning married status.23 Many of the victims were assigned numbers and had their photographs taken by the regime (Otten, 2017). The slave markets (souk sabaya) involved women being forced to walk a catwalk, where they would be displayed before being purchased. When a woman was desired by many men, the market would run a computer-​based lottery to pick the purchaser (Otten, 2017). In an interview with two Êzidî women, both held as sexual slaves by the Islamic State, they recounted being moved to Syria in a meat cooler truck before being taken to a secret prison formerly used by the Assad regime. They were sold in a slave market, where four or five women per night were paraded around men sitting in chairs in a humiliating and grim spectacle: “It was like a fashion show. The men tapped their foot when they wanted to buy that one.”24 These same two women were eventually purchased by their families, through intermediaries, for 22,000 and 24,000 USD, respectively. Captured Êzidî women were openly considered to be slaves (sabaya) by the Islamic State. They were the “spoils of war.” Therefore, it was forbidden to sell Êzidî “slaves” to non-​ Muslims, and the “property rights” of masters over their slaves were respected. Islamic State rules prohibited the sale of slaves between brothers, or until after a woman’s menstrual cycle (ensuring she was not pregnant). Those who sold Êzidî women to outsiders risked capital punishment, yet the significant financial rewards (up to 40,000 USD being offered by some Êzidî families) were enough to incentivize rule violation (Mikhail 2018).25 Beyond being forced into sexual acts, Êzidî women held in slavery were often kept in darkness and filth, beaten, and forced to perform laborious tasks. One woman, held near Dayr Az-​Zawr, was sold eight times, raped hundreds of times, and drugged, before being sold to her family (through an intermediary) for more than 20,000 USD.26 When girls turned the age of 9 they were taken from their mothers to be sold as slaves (boys over the age of seven were also taken to be forcibly conscripted as child soldiers). Girls under the age of nine were also sometimes taken from their families and only returned once they converted to Islam and proved that they could recite Koranic passages.27 Converts of

23 

United Nations Human Rights Council 2016. Interview with Êzidî woman (January 2016), refugee camp near Dohuk, Iraq. 25  Many women have been purchased by “middlemen” on behalf of benefactors in Iraq and elsewhere who were seeking to free the women from captivity. They were sometimes reimbursed by the KRG’s Office of Kidnap Affairs, and the smuggling of women out of the Islamic State (both those “legally purchased,” in the eyes of the ISIS, and those not) has become a lucrative, though dangerous trade. (Mikhail (2018) estimates that around a quarter of these handovers end in ISIS ambush.) 26  United Nations Human Rights Council 2016. 27  Interview with Êzidî girl (January 2016), refugee camp near Dohuk, Iraq. 24 

Genocide against the Êzidîs in Iraq    907 all ages were also given special identification cards indicating their status. As of mid-​2016, 2,590 women and children had escaped the caliphate, and a further 3,973 remained in captivity (Otten, 2017).

4.5. The destruction of the built environment and cultural heritage Beyond forced conversion, slavery, killing, and forced conscription, the elimination of Êzidî identity involved material destruction. After being forcibly displaced, Êzidî houses were marked by ISIS fighters, looted, and, in some cases, destroyed. The initial attack also included the destruction of, at least, 10 religious and ceremonial sites in Sinjār and Bahzānê (Moradi and Anderson, 2016). For example, ISIS executed 14 elderly Êzidî men at the Sheikh Mand Shrine in Jidala, before destroying the shrine.28 This direct targeting of symbolically important objects by the ISIS constitutes a war crime, while also demonstrating the intention of the ISIS to destroy Êzidî social existence in its entirety.

5.  Was the Campaign against the Êzidîs Genocide? In the preceding analysis, I have outlined clearly patterned religious and gendered violence against Êzidîs consisting of killing, assault, forced conversion, and enslavement. The scale of the violence and its discernment (the fact that it targeted Êzidîs specifically) presents a prima facie case for the genocidal nature of ISIS’ campaign against the Êzidî. In the following, I will attempt to succinctly break down the violence in terms of the apparent actus reus (criminal acts) and mens rea (criminal intent) of the crime of genocide. I will also touch on other possible legal characterizations of the violence, particularly the crimes against humanity of sexual slavery and persecution. The violence against the Êzidî was large scale and organized. A study done by the Center for Humanitarian Health at Johns Hopkins University estimated that 2.5 percent of the Êzidî population in the Sinjār area was killed or kidnapped in the initial attack on Sinjār, amounting to 9,900 people. This was broken down into 3,100 killed (mostly executed through being shot, beheaded, or burned alive), and 6,800 people kidnapped out of a total populated estimated at 400,000 people (Cetorelli et al., 2017). Children were disproportionately affected. They were as likely as adults to be murdered, but much more likely to die of exposure (93 percent of those who died of exposure on the mountain were children) and less likely to escape captivity (Cetorelli et al., 2017). The Islamic State’s attack also resulted in mass displacement of the Êzidî population with more than 20,000 Êzidî fleeing to Turkey, 400,000 to the Kurdish region, and thousands more to Europe and North America (Kizilhan and Noll-​Hussong, 2017).

28 

Syrian Accountability Project 2017.

908   Kjell Anderson Genocide, as set out in article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,29 must be directed against an ethnic, racial, national, or religious group. The status of Êzidîsm as a religion is well established both in terms of the self-​ identification of Êzidîs and ascription—​the identification of Êzidîsm as a socially relevant category by other groups. The perpetrator group, the Islamic State, has clearly and repeatedly identified Êzidî religious and cultural practices as heretical and deserving of differential (negative) treatment under their interpretation of Islamic law.30 When one considers the scale of the attack against Êzidî civilians, its systematic nature, and consistent treatment meted out to Êzidîs by ISIS fighters, it is clear that the attack was planned and that the “intent to destroy” the Êzidî was communicated to Islamic State fighters and institutions (even though not all of these individuals may have shared the intent to destroy). Individual Êzidî victims were registered and transferred between institutions within the Islamic State system with clear design. These institutions included, for example, primary and secondary holding sites, slave markets, and combat training schools. In many cases, ISIS’ capture of villages and towns would result in the head of the village (Mūkhtār) being summoned and presented an ultimatum that the villagers must convert to Islam or die; the destruction of the Êzidî would be accomplished in either case (Moradi and Anderson, 2016). Those who refused to convert to Islam were normally killed.

5.1. Genocidal acts The full extent of ISIS’ killings of the Êzidî and other groups is probably still unknown. The estimate of 3,100 killed that I presented earlier is a low estimate, and likely suffers from both survivor bias as well as not including numerous unaccounted-​for individuals as well as victims not included in the initial attack (Cetorelli et al., 2017). In 2015, for example, the ISIS stopped forced conversions of Êzidîs in Tel Afar and sent the women and children to Syria, while several hundred men went missing and were reportedly executed.31 Beyond victimization surveys, there is also significant forensic archaeological evidence of mass killing. Yazda, an Êzidî NGO based in the United States (with a field office in Duhok), has verified 19 mass graves based on physical evidence and witness testimonies.32 They have also identified a further dozen possible mass graves. Only limited forensic examinations have been conducted thus far, and many mass graves are at risk of being disturbed through human interventions or environmental exposure. Moreover, exhumations continue to be

29  Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277 (Genocide Convention). 30  ICTY and ICTR jurisprudence recognizes that the perspective of the perpetrator group is crucial in determining the existence of the group and membership within the group for the purposes of the crime of genocide and the crime against humanity of persecution (Stakić (Appeals Judgment) IT-​97-​24 (31 July 2003), para. 25). 31  “Islamic State: Militants ‘Kill 300 Yazidi Captives.’ ” (2015) BBC News, May 2. Available at: https://​ www.bbc.com/​news/​world-​middle-​east-​32565809 (Accessed: January 20, 2019). 32  Yazda (2016) “Mass Graves of Yazidis Killed by the Islamic State Organization or Local Affiliates on or After August 3, 2014.” Available at: https://​354a2745-​cd89-​499d-​8ac2-​0340313e364f.filesusr.com/​ugd/​ 92f016_​7ce9af13e1c64a768fc320aae544d323.pdf (Accessed: May 12, 2019).

Genocide against the Êzidîs in Iraq    909 dangerous—​many graves and killing sites have been booby-​trapped by ISIS through improvised explosive devices and land mines. I witnessed both of these phenomena first-​hand in visiting several mass graves in the Sinjār area; there were land mines present (even in ostensibly demined areas), as well as signs of human intervention (such as stacked bones). Moreover, at the Solagh site (where older women from Kocho were executed) the combination of shallow burial and soil erosion caused by wind and rain resulted in bodies rising to the surface, where they would be further exposed to the elements. The relatively limited scale of the killings does not mean the perpetrators lacked the intent to destroy the Êzidîs. The ISIS’ campaign against the Êzidî involved a multiplicity of methods committed with genocidal intent. The systematic forced marriage and sexual violence against Êzidî women may also be in furtherance of a campaign of genocide, particularly in terms of the Genocide Convention articles 2(b) “causing serious bodily or mental harm to members of the group;” 2(d) “imposing measures intended to prevent births within the group;” and 2(e) “forcibly transferring children of the group to another group.” Êzidîsm requires that children have two Êzidî parents, so by forcing children to adopt the identity of their new father/​master, effectively the children cease to be Êzidî. Thus, over time, the kidnapping of Êzidî women and girls and their subsequent forced marriages (and pregnancies) has the effect of ensuring that the next generation are not Êzidî but Muslim. This was set out systematically in the Islamic State’s regulations and propaganda. For example, Dabiq magazine, an official propaganda outlet of ISIS, states that the product of these forced marriages “have the status of her master over herself . . .” and that the child will be “a free man like his father” (i.e., Muslim rather than Êzidî).33 The forcible transfer of children also occurred when the young children of Êzidî mothers were absorbed into (new) Muslim families. In other cases, children, between the ages of 9 and 18, were subject to forced marriage or conscription. Similarly, rape may constitute the prevention of births under article 2(d) of the Genocide Convention when it is accompanied by genocidal intent and where the rape contributes to cultural, psychological, or physical impediments to procreation. Rape, in the context of forced marriage, can legally constitute the prevention of births through both: the non-​Êzidî identities of the children of Êzidî-​Muslim forced marriages, and the possibility that, even if they manage to escape, the women who were forced into marriages with Muslim men may be unable to produce children due to physical injuries, cultural isolation (being sexually stigmatized and cast out of their own group), or psychological trauma (leading to an aversion to sex or abnormal social responses). The forced marriages of Êzidî women and girls may also be classified as crimes against humanity through the underlying act of sexual slavery (under article 7(1)(g) of the Rome Statute)34 or “other inhumane acts” (under article 7(1)(k)).35

33 

“The Failed Crusade.” (2014) Dabiq Magazine 4, October 11, pp. 1–​56. Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 90 (Rome Statute). 35  Although the elements of sexual slavery (that the perpetrator “exercised any or all of the powers attaching to the right of ownership . . .” and that they “caused such person or person(s) to engage in one or more acts of a sexual nature”) are clearly met in the case of Êzidî forced into marriages with Muslims, recent practice in international criminal law establishes forced marriage as a discrete crime against humanity, under the rubric of “other inhumane acts.” See for example, the Brima et al. Appeals Judgement at the Special Court for Sierra Leone (Brima et al. (Appeals Judgment) SCSL-​04-​16-​A (22 34 

910   Kjell Anderson Finally, the ISIS’ siege of Êzidî civilians on Mount Sinjār may constitute article 2(c) of the Genocide Convention, which involves “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” The Islamic State took active measures to prevent the delivery of humanitarian aid to the population stranded in the mountains, and this directly resulted in Êzidî deaths.

5.2. Genocidal intent The ideological underpinnings of the Islamic State are genocidal in that they divide the world into a binary between “righteous Muslims and perverse infidels, apostates, or idolaters”36 (Moradi and Anderson, 2016, p. 123). The Êzidî were classified as polytheists (mushrikun) and devil worshipers, thus subject to the cleansing violence of the Islamic State, which sought to ultimately eliminate supposed non-​believers. Moreover, all remnants of non-​Sunni religions, including buildings and artifacts, were also subject to destruction in order to create the “Abode of Islam.” ISIS fighters, as representatives of this vision, are believed by the ISIS to have a complete monopoly of legitimate violence; moreover, the commands of the leaders of ISIS are said to be the commands of God, thus total and immediate acquiescence and self-​sacrifice are expected (Moradi and Anderson, 2016). The campaign against the Êzidîs was specifically set out in Islamic State publications which stated that: Upon conquering the region of Sinjār . . . the IS faced a population of Yazidis, a pagan minority existent for ages in the region of Iraq and Shām [Syria]. Their continual existence to this day is a matter that Muslims should question [emphasis added] as they will be asked about it on Judgment Day. . . . Upon . . . research it was determined that this group is one that existed since pre-​Islamic jāhiliyyah [age of ignorance] . . . they never accepted Islam nor claimed to have adopted it. Accordingly, the IS dealt with this group as the majority of fuqahā’ [Islamic jurists] have indicated how mushrikīn should be dealt with. Unlike the Jews and Christians, there was no room for jizyah payment. . . . After capture, the Yazidi women and children were then divided according to the Sharīʿah among the fighters of the Islamic State who participated in the Sinjār operations, after one fifth of the slaves were transferred to the Islamic State’s authority to be divided as khums. The enslaved Yazidi families are now sold by the Islamic State soldiers as the mushrikīn were sold by the Companions. . . . Many of the

February 2008), the Case 002 judgement of the Extraordinary Chambers in the Courts of Cambodia (ECCC) (Case 002/​02 against Nuon Chea and Khieu Samphan (Judgment) Case 002/​02 (28 March 2019), and the confirmation of charges in Dominic Ongwen at the ICC (Ongwen (Decision on the Confirmation of charges against Dominic Ongwen) ICC 02/​ 04-​ 01/​ 15-​ 422-​ Red (23 March 2016). The primary distinction between forced marriage and sexual slavery is the ongoing spousal relationship, involving obligations for both parties. The Iraqi Penal Code lacks a provision for sexual slavery but forced marriage (as an ordinary crime) is prohibited under the code, as are many other forms of sexual violence. This is especially relevant in the likely event that the ISIS crimes against the Êzidî are prosecuted domestically, rather than at the ICC or an international tribunal. Prosecutor v. Ongwen, Case No. ICC-​02/​04-​01/​15, Judgement, pp. 959-​963 (4 February 2021), https://​www.icc-​cpi.int/​CourtRecords/​CR2021_​01026.PDF. 36 

“The Flood.” (2014) Dabiq Magazine 2, July 27, pp. 1–​44.

Genocide against the Êzidîs in Iraq    911 mushrik women and children have willingly accepted Islam and now race to practice it with evident sincerity after their exit from the darkness of shirk [emphasis added].37

The fact that there was “no room for jizyah payment” means that the presence of the Êzidî would not be tolerated (unlike Christians who could, at least in theory, pay a special tax to be allowed to remain). The Êzidî are described as living in darkness and ignorance and their “continual existence” is presented as an “unanswered question.” A 2014 pamphlet issued by the Islamic State’s Diwan al-​’Iftaa wa al-​Buhuth (Fatwa Issuing and Research Department) sets out justifications for slavery, particularly the keeping of concubines: There is no doubt that the captivity and enslavement of the women of the disbelievers at war and their offspring are among the greatest forms of the honour of Islam and its Shari’a, as it is a clear affirmation showing the supremacy of the people of Shari’a. . . . For God has struck the disbelievers who have violated the command of God and the command of His Messenger with lowering and humiliation, and among the sins of this humiliation imposed on them is the captivity and enslavement of their women and the permissibility of their genitals. [emphasis added]38

Although this pamphlet was issued after the main attack on Sinjār, many Êzidî remained in captivity and it is indicative of the ideological underpinnings of the Islamic State’s policy toward Êzidî women. The New York Times reports that some ISIS fighters would even pray before acts of rape, imbuing the violence with a sacramental character, signifying again that sexual violence was in furtherance of ideological goals, namely the distribution of the spoils of war and the destruction of the Êzidî as heretical non-​believers (Callimachi, 2018b). The ISIS’ specific targeting of Êzidîs actualizes these statements of intent. Kurdish non-​ Êzidîs were subject to more favorable treatment at the hands of ISIS.39 This was echoed in an interview I did with a man in the Christian village of Al Faf (near Mosul), who recalled receiving a Facebook message from an ISIS member saying, “[w]‌e wished we’d done to you what we did to the Êzidî.”40 The intent of the perpetrators gives meaning and shape to their acts, indicating that ISIS’ treatment of the Êzidî was dictated by ideology. Forced conversion is not listed explicitly among the acts of genocide in the Genocide Convention, or among most other definitions of genocide. Thus, forced conversion, taken in isolation, does not constitute an act of genocide, though it may constitute the crime against humanity of persecution (if it can be said to constitute a severe deprivation of fundamental rights on the basis of the group’s identity, as stipulated in, for example, article 7(2) (g) of the Rome Statute). However, when read in light of the pattern of violence, the practice

37 

“The Failed Crusade.” (2014) Dabiq Magazine 4, October 11, pp. 14–​15. The reference to “khums”—​ the spoils of war—​indicates that one-​fifth of the slaves were not subject to distribution among the fighters, rather, they were paid as “tax” toward the Islamic State for sale and further distribution. 38 Translated and reproduced by Aymenn Jawad Al-​ Tamimi (2015). Available at: http://​ www.aymennjawad.org/​2015/​12/​unseen-​islamic-​state-​pamphlet-​on-​slavery (Accessed: March 7, 2020). 39  Yazda (2016) “Mass Graves of Yazidis Killed by the Islamic State Organization or Local Affiliates on or After August 3, 2014.” https://​354a2745-​cd89-​499d-​8ac2-​0340313e364f.filesusr.com/​ugd/​92f016_​ 7ce9af13e1c64a768fc320aae544d323.pdf (Accessed: May 12, 2019). 40  Interview with Christian man (January 2016), Al Faf, Iraq.

912   Kjell Anderson of forced conversion reinforces the perpetrators’ intent to destroy the group. With the elimination of Êzidî religious identity, the Êzidî effectively cease to exist as a religious group.

6.  The Perpetrators of the Êzidî Genocide The perpetrators of the Êzidî Genocide were diverse. Rather than a single typical perpetrator, genocides and other mass atrocities are usually committed by “perpetrator coalitions” who have divergent motives and contribute to the shared enterprise of genocide for their own reasons (Anderson, 2018, p. 99). There were individuals who were true believers in ISIS’ mission to create a caliphate; there were others who were not very religious but who still supported the ISIS as a political alternative to the KRG or Iraq; there were pragmatists who responded to the “facts on the ground” once the ISIS occupied their area; and there were foreign fighters who traveled to the caliphate in pursuit of adventure or an Islamic paradise (Weiss and Hassan, 2015). For the true believers, the ISIS had achieved something no other Islamist group had, namely, the creation of a state based on their idea of pure Islam. In a remarkable interview with Fazil Moradi, one Islamic State fighter explains: Let me tell you. We as mujaḥedīn are doing nothing but Jihād, because we want to clear this earth from infidels and idolaters like the Satan-​worshiper Êzîdîs (Êzîdîye shayṭān parestakān). The Prophet, may Allāh’s blessing be upon him, and the Law of God says we should have no mercy for the enemy of Islam. Satan-​worshipers are the true enemy of Islam. Every real Muslim must follow the Law of God. Our heart beats for Islam, which is made for all time and all places, and therefore our heart beats for Jihād because Jihad is a testimony of martyrdom and the path to paradise. Moradi (M): It seems to me that you are very much concerned about paradise and the divine reward. The Islamic caliphate is confident that its mujaḥedīn are the true Muslims and thus they deserve a place in paradise. Do you agree? G: Of course, I agree. The paradise is not for the infidels. M: Let me then ask you. What do you think would happen when every member of Islamic caliphate is killed and has entered paradise? Would not that make you and all of your brothers happy? And does not that also mean the end of the Islamic caliphate, because there will simply be no one left to implement the words of God. G: Wait. Wait. I have to stop you. You have now committed a great sin. May God help you in the Day of Judgment. I know that the light of God has not reached your heart. You must know that we have been fighting ever since the time of the Prophet, may Allāh’s blessing be upon him, and God willing, we will not die before the entire world population has become true Muslims. God is watching every single step we take, and God willing, he will make sure that the fight continues until the infidels have converted to Islam or been cleared from the face of the earth (Moradi and Anderson, 2016, p. 125).

Thus, the divine and urgent mission of ISIS is to “clear” the earth of non-​believers through violence. There was significant support for the ISIS among both Arabs and Kurds in northern Iraq. Many of those who joined the ISIS for political reasons were Sunni Arabs who felt alienated from both the KRG and central government, which had become increasingly Shiite and

Genocide against the Êzidîs in Iraq    913 sectarian. Populations in communities that are ethnically or religiously mixed may be particularly susceptible to ISIS’ appeals (Weiss and Hassan, 2015). They may be acting less out of religiosity and more out of a desire for representation. There has been much attention paid to foreign fighters in the media and scholarship on the Islamic State. While they are a significant factor in the conflicts in Iraq and Syria (there are estimates of as many as 10,000 foreign fighters participating as of 2014), they are a more transient group, detached in many ways from local conflicts. With the recent retreat of the ISIS there has been an accompanying mass exodus of foreign fighters who have sought to return to their states of origin. The motivations of this category of fighter and perpetrator are also diverse, although they are not rooted in local sectarian or ethnic cleavages. Rather, foreign fighters appear to be motivated by varying degrees of religious commitment and adventurism (Day and Kleinman, 2017). ISIS fighters are often leaving relatively homogenous societies where they have difficulty assimilating (Benmelech and Klor, 2016). However, the reality of violence often did not live up to the promise of ISIS’ vision. In understanding the atrocities in Sinjār, we must go beyond simplistic understandings of Muslim extremist perpetrators. The rise of the ISIS was facilitated by the de-​Baathification policy following the removal of Saddam Hussein, which effectively marginalized tens of thousands of experienced administrators and military officers. The forces that attacked Sinjār were, in part, composed of such individuals. The commander of the Sinjār attack is believed to have most likely been Abu Muslim al-​ Turkmani—​an ethnic Iraqi Turk from Tal Afar (in Nineveh, the same province as Sinjār) and former Iraqi army officer (Otten, 2017). He had experience in atrocities as a Lieutenant Colonel in the Iraqi military’s intelligence unit Istikhbarat (Directorate of General Military Intelligence). Turkmani fought in the insurgency against American forces in Iraq and eventually rose to become the military second in command of the ISIS and the governor of its territories in Iraq. He also spent time in Camp Bucca, an American prison in southern Iraq, where he may have become radicalized. Many of the leadership of ISIS were at one time or another detained in the camp, including ISIS leader Abu Bakr al-​Baghdadi (McCoy, 2014). The forces that took control of Sinjār were not just foreign extremists sweeping across the Syrian desert, as is often presented in the media; rather, they had close ties and cooperation with local Sunni Arab and Baathist insurgent groups and were likely aided by sleeper cells from within the community (Otten, 2017). The attack on Kocho was led by a man with the nom de guerre “Abu Hamza,” who was reportedly a local man (Cetorelli and Ashraph, 2019). One survivor of the genocide remembers, “our first shock was seeing men we knew among them” (Mikhail, 2018, p. 62).

7.  The Victims of the Êzidî Genocide The consequences of the genocide for Êzidî victims have been severe. Êzidî victims of the Islamic State have faced multiple forms of individual and collective trauma. German psychoanalysts Kizilhan and Noll-​Hussong (2017, p. 2) argue that recent research on Êzidî

914   Kjell Anderson victims indicates comparable “behaviour patterns” to Holocaust survivors, such as “feelings of insecurity, tension, worry about their children’s survival, and feelings of powerlessness and helplessness.” Beyond a range of physical ailments, female victims have also experienced “chronic mental illness” and psychosomatic symptoms such as skin rashes, asthma, and pain (Kizilhan and Noll-​Hussong, 2017, p. 2). Being held in captivity, such as sexual slavery, often correlates with Complex Post-​ Traumatic Stress Disorder (CPTSD). A recent psychiatric study indicates that CPTSD “is associated with prolonged trauma when a person’s destiny is under the control of other people and escape is unfeasible” (Grossman et al., 2019, p. 161). Such conditions certainly appear to be present for women held as sexual slaves who experienced prolonged and recurring trauma, both in terms of direct violence, as well as through ongoing fear, shame, and isolation. CPTSD diagnoses encompass classic PTSD symptoms (like intrusive memories and heightened arousal), as well as dysregulation (poorly modulated emotional responses), negative self-​concept, and disturbed relationships (Grossman et al., 2019, p. 161). The same study noted, when controlling for PTSD, that there are higher rates of insomnia among Êzidî victims of sexual slavery versus Êzidî victims of other crimes. This indicates that CPTSD is a distinct form of trauma from PTSD, thus that Êzidî victims of sexual slavery may need different treatment interventions than other victims (Grossman et al., pp. 164–​165). Treatment must also be culturally appropriate (Kizilhan and Noll-​ Hussong, 2017).41 Sex with a non-​Êzidî would traditionally mean a woman would be cast out of the group. Nevertheless, the head of the Êzidî religion, the Baba Sheikh, declared that women who were raped or forced to convert to Islam should be welcomed back to the group, saying, “[w]‌e are not happy if anyone insults them” (Otten, 2017, p. 137). This return has been formalized through a ceremony in Lalish, where the women are blessed with holy water from the spring beneath the temple. The women also meet the spiritual council, where they are told, “[y]ou had to, they forced you, and you will be fine” (Otten, 2017, p. 138). Some women receive further treatment and counseling in Iraq or Germany (over 1,000 women have been treated in Germany alone). Beyond psychological trauma, many women suffer from physical ailments like irregular periods, urinary tract infections, and pelvic infections (Otten, 2017). Still, despite the welcoming approach of Êzidî authorities, it is likely that some women still face ostracism within their families and communities on return. Tragically, some women who feared both their treatment by their “husbands,” and their rejection upon return, committed suicide in captivity. Concerns about “saving face” often generate considerable shame and anxiety among victims (Kizilhan and Noll-​Hussong, 2017). Child survivors of the ISIS genocide suffer from headaches, wetting themselves, and typical PTSD symptoms like hyper-​arousal (jumpiness) (Kizilhan and Noll-​Hussong, 2017). They may also have difficulty building relationships and be mistrustful of strangers (as well as exhibit CPTSD symptoms). An Êzidî woman who witnessed a massacre described her one-​year-​old son as “afraid of humans” and said that “all that bothers me now is how to

41 This may mean that, in some cases interventions like exposure therapy may be ineffective or counterproductive. It may be that suppression and avoidance are more effective in collectivist cultures, like the Êzidî, which prioritize social harmony.

Genocide against the Êzidîs in Iraq    915 live on” (Moradi and Anderson, 2016, p. 134). The emotional dysregulation and disturbed relationship symptoms of children held in captivity or forcibly conscripted are directly related to ISIS indoctrination strategies. These strategies inculcate a new worldview and identity in the children through negative reinforcement (i.e., punishment for continued self-​identification as an Êzidî). For example, one Êzidî mother, held in captivity, recalled that her son chants the Takbīr (“Allāhu akbar” or “God is great”) as a conditioned response whenever he becomes afraid.42 Furthermore, she recounted that her daughter told her one day, “[i]‌f you are going to continue to pray to Tawsi Melek (the “peacock angel”), I’m going to leave . . . there is no future for Êzidîs.” Some rescued Êzidî children have even refused to return to their parents (Anderson, 2016; Sly, 2019). The boys who were kidnapped by the ISIS and forced to serve as child soldiers have received relatively little attention, despite their trauma at being separated from their family, forced conversion, and involvement in violence. One recent study determined that, when compared with a control group of non-​child-​soldier Êzidî victims, the former child soldiers were significantly more likely to suffer from PTSD, anxiety, somatoform disorders, and depression (Kizilhan and Noll-​Hussong, 2018, p. 425). In some cases, it appears that the ISIS phoned victims’ families to taunt them about their family member’s continued captivity; this likely intensified the victimization of these secondary and tertiary victims. Several victims, in separate interviews conducted by the author, have recounted such stories, yet it has (apparently) not appeared to date in the literature on Islamic State atrocities.

8.  Reaction to and Aftermath of the Êzidî Genocide The survival of the Êzidî is precarious in the aftermath of the genocide. Beyond trauma treatment and humanitarian assistance, responses to the genocide must significantly reduce the risk of further violence against the group; this may be achieved through ensuring Êzidî autonomy and access to justice. The KRG often claims that the violence in northern Iraq represented a “Kurdish genocide” rather than an Êzidî genocide, a narrative that undermines the distinctive character of Êzidî victimization. For example, while receiving a delegation from the KRG in the ruins of the municipal building in Sinjār, our group was told explicitly that “the only way for Sinjār to be secure was for it to become part of Kurdistan.” Even if the Êzidî are Kurds, it is also abundantly clear that they form a distinct religious community. The competition between Kurdish political parties for influence and territory in the Sinjār area has delayed the reconstruction of Sinjār and the return of the Êzidî population. There is an apparent fear that returning Êzidîs may support the Kurdish Worker’s Party (PKK) (rather than the Kurdistan Democratic Party, or KDP) and further weaken the influence of the KDP in the area.43 These factional divisions are also present among the Êzidî militias, 42 

Interview with Êzidî girl (January 2016), refugee camp near Dohuk, Iraq. (2016) “Mass Graves of Yazidis Killed by the Islamic State Organization or Local Affiliates on or After August 3, 2014.” https://​354a2745-​cd89-​499d-​8ac2-​0340313e364f.filesusr.com/​ugd/​92f016_​ 43  Yazda

916   Kjell Anderson some of which are aligned with the KDP (like the HPE, Êzidîxan Protection Force), and some of which are allied with the PKK (like the YBS or Yekîneyên Berxwedana Şengalê). The Kurdish political parties have used the fluid borders in northern Iraq to annex areas to Kurdish control. This was reversed when, in September 2017, Iraqi Kurds voted in favor of independence, and the Iraqi government responded by seizing control of the Nineveh Governorate, the area containing Sinjār. The competing claims over Sinjār, not least claims to Êzidî autonomy, are unresolved and pose a risk of further violence.44 The future status of Êzidî areas in northern Iraq may take different forms, such as Êzidî autonomy, or absorption within Iraq or within the KRG. Some form of Êzidî autonomy (either within Iraq or the KRG) will help to ensure the continued viability of the Êzidî. Moreover, there is a dire need for long-​term assistance in order to rebuild the areas where the Êzidî reside. The destruction of the physical infrastructure in Sinjār city has been near total, much of this destruction occurring during the retaking of the town by KRG and PKK forces (backed by coalition airstrikes). Physical infrastructure is essential to ensure the continuing return of Êzidî refugees and internally displaced persons.

8.1. The prospects of justice To date, there has been limited legal accountability for the Êzidî genocide and related atrocities. However, the prosecution of mass atrocities often moves quite slowly (if it occurs at all) and there are institutional challenges to overcome in the prosecution of ISIS’ crimes. Both Syria and Iraq are state parties to the 1948 Genocide Convention, but not to the Rome Statute of the ICC. However, the ICC could address the Êzidî situation with a referral from the UN Security Council. Such a referral for Iraq and other Middle Eastern countries has proven to be impossible in the face of opposition from Russia and China.45 However, significant progress was made when the UN Security Council passed Resolution 2379 in September 2017 authorizing the creation of an international investigative team known as the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/​Islamic State in Iraq and the Levant (UNITAD).led by a special adviser, to gather evidence on international crimes committed by ISIS in Iraq.46 A similar mechanism had been created by the UN General Assembly in 2015 for Syria. UNITAD is not an independent court or tribunal, rather it will operate in and alongside Iraq’s courts.

7ce9af13e1c64a768fc320aae544d323.pdf (Accessed: May 12, 2019). Although the ideology of the PKK does not necessarily mesh well with the worldview of many Êzidîs, the group has gained popularity for its actions in protecting the Êzidî through the creation of a safe corridor into Syria and the humanitarian aid it provided to fleeing Êzidî refugees. 44 

International Crisis Group (2015) “Arming Iraq’s Kurds: Fighting IS, Inviting Conflict.” Middle East Report No. 158. 45  For example, see the veto by Russia and China of a May 2014 Security Council resolution to refer the Syria situation to the ICC. 46 UNSC Res 2379 (21 September 2017) on establishment of an Investigative Team to Support Domestic Efforts to Hold the Islamic State in Iraq and the Levant Accountable for Its Actions in Iraq, UN Doc S/​RES/​2379 (UNSC Res 2379).

Genocide against the Êzidîs in Iraq    917 It has taken around a year and a half for the terms of reference (TOR) for UNITAD’swork to be agreed upon, largely due to tensions around Iraq’s use of the death penalty.47 Both UNSC Resolution 2379 and the TOR refer to Iraqi authorities as the “primary intended recipient” of gathered evidence, making clear that this investigative unit will support Iraqi courts.48 This was a necessary compromise to ensure the cooperation of the Iraqi government and KRG. The initial letter from the Government of Iraq requesting Security Council assistance in investigations emphasized that “Iraq must maintain its national sovereignty and retain jurisdiction. . . .”49 UNITAD is focused solely on crimes committed by the IS, rather than Iraqi forces, the Peshmerga, or other parastatal and paramilitary forces. There is also some debate around which perpetrators should be the focus of accountability. Although there is a preambular reference to concentrating on senior leadership, there is no other reference in UNSC Resolution 2379 or the TOR limiting jurisdiction to those who are “the most responsible,” as is often the case with international tribunals (Van Schaack, 2018a). In trials for international crimes, duress would normally be considered in sentence mitigation or as a ground for exclusion of criminal responsibility. The mere membership in the ISIS should be insufficient grounds for conviction—​absent direct connection to criminal conduct. The mistakes of the de-​Baathification policy must not be repeated. Unfortunately, the approach taken to transitional justice in Iraq thus far seems counterproductive. According to Human Rights Watch, the thousands of trials of ISIS suspects that have taken place thus far have been based on ISIS “membership” rather than any notion of overall responsibility or even direct connection to crimes.50 The Iraqi Penal Code51 also has a number of shortcomings, such as not including international crimes such as war crimes, genocide, and crimes against humanity. Many ISIS crimes could be prosecuted as “ordinary” crimes, such as assault, murder, or rape, but this ignores the collective dimension of harm of the violence (Van Schaak, 2018a).52 UNITAD also has a capacity-​building 47 

UNSG Terms of Reference of the Investigative Team to Support Domestic Efforts to Hold ISIL (Da’esh) Accountable of Acts that May Amount to War Crimes, Crimes against Humanity, and Genocide Committed in Iraq, established pursuant to Security Council resolution 2379 (2017) (9 February 2018). Available at: https://​www.justsecurity.org/​wp-​content/​uploads/​2018/​02/​2018-​02-​09-​TORs-​UN-​iraq-​investigative-​ mechanism.pdf (Accessed: March 7, 2020) (UNSG TOR 2018). The IT was formed at the request of the Government of Iraq as a means of gaining international assistance (and perhaps legitimacy) for the investigation of ISIS crimes. The work of the IT has been complicated by the poor relations between the central government in Iraq and the Kurdish Regional Government. The memorandum of understanding was negotiated among the KRG, the Government of Iraq, and the UN. The TOR also avoided mention of applicable sentences after trial (particularly the death penalty, which is used in Iraq and is still on the books in the KRG), rather, in language echoing UNSCR 2379 it speaks of “fair and independent criminal proceedings, consistent with applicable international law . . .” (UNSG TOR 2018. p.1). 48  UNSC Res 2379, para. 5. 49 UNSC, Letter Dated 14 August 2017 from the Chargé d’affairs a.i. of the Permanent Mission of Iraq to the United Nations addressed to the President of the Security Council (14 August 2017) UN Doc S/​2017/​ 710, p. 1. 50  Human Rights Watch. (2017) Flawed Justice: Accountability for ISIS Crimes in Iraq. Available at: https://​www.hrw.org/​sites/​default/​files/​report_​pdf/​iraq1217web.pdf (Accessed: June 23, 2019). 51  Iraq Penal Code (entered into force July 1969) No. 111 of 1969 (The Iraqi Penal Code) 52  The provisions on rape in the Iraqi Penal Code also do not adhere to international standards. Rape is nullified in cases where the perpetrator subsequently marries the victim; however, this may be partly neutralized by Iraq’s 1959 Personal Status Law, which prohibits forced marriage (Van Schaack, 2018a). The retroactive application of “new” crimes in a prospective revised Iraqi Penal Code could pose nullem

918   Kjell Anderson mandate, and penal reform may be one positive outcome of its work.53 UNITAD is also gathering evidence according to international standards, remedying potential methodological shortcomings of NGO efforts in aspects like chain of custody and improper excavation of mass graves. There have been trials against ISIS fighters in several national courts, such as in Iraq, Germany, and Switzerland, and it is likely that the evidence collected by UNITAD may spur further extra-​territorial trials. Trials abroad may, however, prove to be unsatisfactory to victims who will have limited ability to access these trials (Van Schaak, 2018a). It may also still be possible that a hybrid or ad hoc international tribunal could be created with jurisdiction over all ISIS crimes, but such a tribunal would have difficulty securing the cooperation of both Syria and Iraq. The Special Adviser, who heads UNITAD, also has the power to “report to the Security Council any significant issue that arises in the implementation of the mandate,”54 but it is unclear whether the UNSC will use its authority to enforce cooperation with UNITAD.55 In its most recent report to the Security Council (May 2021) UNITAD indicates that it has completed a case brief on genocide against the Êzidî in Sinjar.56

9.  Conclusion As this chapter has laid out, there is a strong case that the Islamic State committed genocide against the Êzidîs in the Sinjār region. This conclusion arises from witness testimonies, emerging forensic evidence, and ISIS’ public statements. However, there is much further research required. Although NGOs have systematically gathered survivor testimonies, these may not be suitable for use as evidence in criminal trials.57 Future accountability efforts crimen sine lege concerns. However, in its nullem crimen sine lege provision, the International Covenant on Civil and Political Rights (article 15(2)) also stipulates that “nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” This provision recognizing the customary status of many international crimes is replicated in many countries’ constitutions and penal codes. International Covenant on Civil and Political Rights (adopted December 16, 1966, entered into force March 23, 1976) 999 UNTS 171. 53 

UNSG TOR 2018, para. 41. UNSG TOR 2018. para. 47. 55 In a report to the UNSC, the adviser, Karim Asad Ahmad Khan, noted several investigative challenges, foremost among these the “cross-​border nature of ISIL command structures at the time of the commission of key criminal acts.” UNSC Second Report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/​Islamic State in Iraq and the Levant (17 May 2019) UN Doc S/​2019/​407, p. 19. 56  Sixth report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/​Islamic State in Iraq and the Levant (3 May 2021) UN Doc S/​2021/​419, p. 2. 57  The 2016 United Nations Human Rights Council Report is based on 45 interviews from survivors and experts, as well as documentary sources, and satellite photographs. Much of this research is still preliminary and lacking the systematicity of criminal investigations. The broader literature on the genocide is similarly limited, comprising several studies of survivor trauma, conceptual pieces on criminal responsibility (including my own 2016 piece co-​authored by Fazil Moradi), Nadia Morad’s memoir, as well as the account written by journalist Cathy Otten. 54 

Genocide against the Êzidîs in Iraq    919 will likely be centered in Iraqi courts which, unfortunately, have sometimes been overly politicized and lacking basic due process safeguards. The story of the Êzidî genocide will be crafted through jurisprudence, but it will equally be a product of socio-​historical research and, crucially, the stories told by the survivors themselves. The resonance of these stories is no more assured than the responsibility of the “international community” to protect the Êzidî from genocide. I will end this chapter with the imploring words of an Êzidî monk in Lalish: “There are many beautiful flowers in this world. We are but one color. Don’t let us disappear.”58

References Anderson, K. (2016) “Cubs of the Caliphate:” The Systematic Recruitment, Training, and Use of Children in the Islamic State. Available at: https://​www.ict.org.il/​Article/​1629/​Cubs-​of-​ the-​Caliphate#gsc.tab=0 (Accessed: March 15, 2019). Anderson, K. (2018) Perpetrating Genocide: A Criminological Account. London: Routledge. Benmelech, E., and Klor, E. (2016) “What Explains the Flow of Foreign Fighters to ISIS?” National Bureau of Economic Research. Working Paper No. 22190. Available here: https://​ www.nber.org/​papers/​w22190.pdf (Accessed March 7, 2020). Callimachi, R. (2018a) “Chapter 5: The Heart.” Caliphate [Podcast], September 20. Available at: https://​www.nytimes.com/​2018/​09/​20/​podcasts/​caliphate-​transcript-​chapter-​five-​the-​ heart.html. (Accessed: March 6, 2020). Callimachi, R. (2018b) “Chapter 9: Prisoners, Part 1.” Caliphate (Podcast), September 20. Available at: https://​www.nytimes.com/​2018/​09/​20/​podcasts/​caliphate-​transcript-​chapter-​ nine-​prisoners-​part-​one.html. (Accessed March 6, 2020). Cetorelli, V., and Ashraph, S. (2019) A Demographic Documentation of ISIS’s Attack on the Yazidi Village of Kocho. London: London School of Economics: Middle East Centre. Cetorelli, V., Sasson, I., Shabila, N., and Burnham, G. (2017) “Mortality and Kidnapping Estimates for the Yazidi Population in the Area of Mount Sinjar, Iraq, in August 2014: A Retrospective Household Survey.” PLOS Medicine 14(5), pp. 1–​15. Day, J., and Kleinmann, S. (2017) “Countering the Cult of ISIS: A Social Approach to Countering Violent Extremism.” Review of Faith & International Affairs 15(3), pp. 14–​23. Grossman, E.S., Hoffman, Y.S.G., Shrira, A., Kedar, M., Ben-​Ezra, M., Dinnayi, M., and Zivotofsky, A. (2019) “Preliminary Evidence Linking Complex-​PTSD to Insomnia in a Sample of Yazidi Genocide Survivors.” Psychiatry Research 271, pp. 161–​166. Holland, R. (2017) “Inside Lalish, The Heart of the Yazidi Faith.” The Independent, May 11. Available at: https://​www.independent.co.uk/​travel/​middle-​east/​lalish-​yazidi-​kurdistan-​ sheikh-​adi-​ibn-​musafir-​erbil-​peacock-​angel-​sinjar-​isis-​a7726486.html (Accessed: May 10, 2019). Kizilhan, J., and Noll-​Hussong, M. (2017) “Individual, Collective, and Transgenerational Traumatization in the Yazidi.” BMC Medicine 15(1), p. 198. Kizilhan, J., and Noll-​Hussong, M. (2018) “Post-​Traumatic Stress Disorder among Former Islamic State Child Soldiers in Northern Iraq.” The British Journal of Psychiatry 213(1), pp. 425–​429.

58 

Interview with Ezidi Monk (2016), Lalish, Iraq.

920   Kjell Anderson McCoy, T. (2014) “Camp Bucca: The US Prison that Became the Birthplace of ISIS.” The Independent, November 4. Available at https://​www.independent.co.uk/​news/​world/​ middle-​east/​camp-​bucca-​the-​us-​prison-​that-​became-​the-​birthplace-​of-​isis-​9838905.html (Accessed: May 12, 2019). Mikhail, D. (2018) The Beekeeper: Rescuing the Stolen Women of Iraq. New York: New Directions. Moradi, F., and Anderson, K. (2016) “The Islamic State’s Êzidî Genocide in Iraq: The Sinjār Operations.” Genocide Studies International 10(2), pp. 121–​138. Otten, C. (2017) With Ash on Their Faces: Yezidi Women and the Islamic State. New York: OR Books. Sly, L. (2019) “The Kidnapped Yazidi Children Who Don’t Want to Be Rescued from ISIS.” Washington Post, June 14. Available at: https://​www.washingtonpost.com/​world/​the-​ kidnapped-​yazidi-​children-​who-​dont-​want-​to-​be-​rescued-​from-​isis/​2019/​06/​13/​ef051578-​ 87a1-​11e9-​9d73-​e2ba6bbf1b9b_​story.html?utm_​term=.cf3d763bd012 (Accessed: June 21, 2019). Turner, J. (2015) “Strategic Differences: Al Qaeda’s Split with the Islamic State of Iraq and al-​ Sham.” Small Wars and Insurgencies 26(2), pp. 208–​225. Van Schaack, B. (2018a) “The Iraq Investigative Team and Prospects for Justice for the Yazidi Genocide.” Journal of International Criminal Justice 16(1), pp. 113–​139. Van Schaack, B. (2018b) UN Releases Guidelines for Team Investigating ISIS Crimes in Iraq. Just Security, February 19. Available at: https://​www.justsecurity.org/​52628/​iraqi-​ investigative-​team-​terms-​reference-​released-​death-​penalty-​debate-​dodged/​ (Accessed: May 12, 2019). Weiss, M., and Hassan, H. (2015) ISIS: Inside the Army of Terror. New York: Regan Arts. Yazda (2016) “Mass Graves of Yazidis Killed by the Islamic State Organization or Local Affiliates on or After August 3, 2014.” https://​354a2745-​cd89-​499d-​8ac2-​0340313e364f.filesusr.com/​ ugd/​92f016_​7ce9af13e1c64a768fc320aae544d323.pdf (Accessed: May 12, 2019).

Index

Due to the use of para id indexing, indexed terms that span two pages (e.g., 52–​53) may, on occasion, appear on only one of those pages. Tables and figures are indicated by t and f following the page number Abu Ghraib, 294, 427–​28 accessorial liability for complicity in war crimes, 76–​77 Adis Ababa massacre, Ethiopia, 859 Afghanistan civil war, 89 mortality estimates data, 496 profitability of violence, 170 reduced use of child soldiers, 354–​55 rejection of criminal investigation of crimes, 545–​46 transitional processes in, 597 use of child solders, 354–​55, 356 use of community-​based healing processes, 704 Africa. See also Algeria; Angola; Ethiopia; Rwanda/​Rwandan Genocide; South Africa Central African Republic, 82–​83, 214, 354–​55, 445 child mortality data, 484 colonial expansion/​violent atrocities, 167–​68 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention), 536–​37, 548–​49, 550 customary justice practices, 704 democratic practices, 191n.11 German South West Africa, 430–​31 Herero genocide, German South West Africa, 427–​28, 430–​31 Islamic State of Iraq and Syria attacks, 384 Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa, 541–​42

racist tropes of New Barbarism, 162 Southwest Africa, 427–​28 state-​sponsored mass violence, 174 sub-​Saharan Africa, 161–​62, 707, 779, 794 targeting of tribes in, 63 trans-​Atlantic slave trade, 28, 739–​40, 744 use of child soldiers, 355, 361 violence in sub-​Saharan Africa, 161–​62 West Africa, 515–​16 African Charter on the Rights and Welfare of the Child, 367, 367n.33 African Court of Justice and Human Rights, 396–​97 African National Congress, 386 African Union’s mandate for Somalia (AMISOM), 452–​53 African World War, 395–​96 Alawites, 107–​8 Albright, Madeline, 101–​2 Aleppo, Syria, 1 Algeria enforced disappearances, 261 Front de Libération Nationale, 375 Islamist insurgency in, 214 1950s war, 260–​61 systematic repression of civilians, 586 UN Working Group on Enforced or Involuntary Disappearances list, 261 al-​Qaeda, 151–​52, 360, 373, 384 American Civil War, 585 American Indian and Alaska Native (AIAN) communities, 562, 567–​68 Amin, Idi, 100–​1, 621–​22

922   index amnesties, 676–​83 for Angola war crimes, 19–​20, 783–​87, 790, 794 arguments for and against, 676, 679–​80 The Belfast Guidelines on Amnesty and Accountability, 678 blanket/​unlimited amnesty, 677 in Colombia, 593–​94 comparison with pardons, 676–​77 compatibility with international, domestic law, 680–​81 conditional amnesties, 677–​78 conditions for a legitimate amnesty, 682–​83 definitions, 676–​77 Geneva Convention, Additional Protocol II, promotion of, 680 impact on truth commissions, 686–​87 interactions wtih International Criminal Court, 682 Inter-​American Court of Human Rights opposition to/​challenges of, 594n.36, 680–​82 International Committee of the Red Cross view on, 680 in Latin America, 272, 683 in Northern Ireland, 593 opposition by the Inter-​American Court of Human Rights, 594n.36 Peace Agreement Database on, 682–​83 positive vs. negative views on, 676 post-​World War II global data, 593 Princeton Principles on Universal Jurisdiction on, 678 role in restorative justice, 593 seeming unfairness for serious offenders, 64–​65 in South Africa, 593, 687–​88 Special Court for Sierra Leone on, 679 stealth Holocaust-​related amnesties, 272 Transitional Justice Database on, 682–​83 truth commissions and, 18, 66, 677–​78, 684–​85 in Uganda, 593 United Nations position on, 678, 679, 680–​81 in Uruguay, 594n.36 Amnesty International, 261, 273–​74, 765 “17–​Point Program for a Convention on Crimes against Humanity, 629n.39

Angola, 775–​96 “a limpeza“ (clean-​up), masscres and tortures, 776n.3 Angolan Civil War (1975-​2002), 19–​20, 775–​76, 777–​82, 785–​86, 791 commemoration/​memorialization of, 791–​92 DDR programs for child soldiers, 783 forced recruitment of child soldiers, 355, 779–​80 “forgetting approach” of, 20 Frente de Libertação de Cabinda (FLEC), 776 Frente Nacional de Libertação de Angola (FNLA), 777–​79, 785–​86, 791–​92 granting of amnesty, 783–​87, 790, 794 increasing levels of war crimes, 776 internally displaced persons (IDPs) data, 776, 781, 790, 793 Movimento Popular de Libertação de Angola (MPLA), 777–​80, 782–​83, 784–​ 87, 790, 791–​92, 794 providing knowledge about, in schools, 783 reactions fot the crimes, 791–​94 União Nacional para a Independência total de Angola (UNITA), 777–​81, 782–​83, 784–​85, 789, 790–​92, 794, 796 violence against civilians, 169, 173 War of Independence (1961-​1974), 776 Annan, Kofi on child soldiers, 366 role in putting R2P into practice, 442–​43 anthropological theories of crime, 52 Arab Spring, 443 Arameans, 66–​67 Arendt, Hannah, 284, 293, 331, 425–​26, 731–​32 Argentina amnesties for police/​security officers, 272 death flights (1970s, early 1980s), 84 Dirty War (1975-​1981), 219–​20 enforced disappearances from, 256–​57 exhumation of mass graves, 497–​98 prosecution of mass atrocities, 617 repressive regime in, 256 role of justice cascade in, 395–​96 terror apparatus collaborations, 258n.9 Truth Commission report, 587 Aristotle, 84, 474

index   923 armed conflict Bosnia/​Herzegovina, 38 armed conflicts, 60, 119. See also international armed conflict; non-​international armed conflict collapse of law and order during, 120 conflict analysis, 106, 153–​54 entrepreneurs of violence and, 149–​50 the environment as a tool of, 516 the environment as a victim of, 517–​18 the environment as cause of, 514–​16 framing/​constructing of “the Other,” 153–​54 groupness/​social categories, 144 human rights during, 57, 124–​25, 128 identity groups, 143–​45 non-​crime-​related violations, 124 non-​international armed conflict, 30, 82n.12, 127–​28, 544–​45, 881 permissibility of killing in, 127–​28 power dynamics of atrocities, 141–​55 regulation of by international humanitarian law, 28, 115 right to life and, 122 role of alliances, 151–​53 rules for protection of cultural buildings, 88–​89 states vs. non-​state actors, 142 structural violence and, 146–​48, 565–​66n.18, 571, 602–​3 violence as performance and, 148–​49 war vs. peace dichotomies, 147 Armenian Genocide, 4, 31, 42–​43, 98–​99, 104–​31, 427–​28 Arms Trade Treaty (2013), 448 atrocious organizations, 12, 255–​74. See also corporate involvement in atrocity crimes administrative violence by, 258–​59 cleansing operations, 267–​68, 269–​70 definition/​characteristics of, 257–​58, 258n.10, 262 enforced disappearance issues, 256–​57, 258–​59, 260, 261, 262–​63, 266–​67, 268, 271, 273 extra-​judicial killings, 256, 258–​59, 262–​63, 272, 273–​74 factionalism and power struggles, 267 foot soldiers, 268 forcing of confessions, 250, 251–​52, 264

Gestapo (Secret State Police) (Germany), 256, 260, 265, 396–​97 gold-​collar commanders, 268 gray-​collar workers, 270 Guatemala National Police, 262, 266 hierarchical order of groups, 268–​70 historical/​contemporary crime patterns, 260–​61 mass detentions by, 258–​59, 260–​61, 262, 263–​64, 266, 267–​68, 269–​70, 272, 842, 858–​59 modus operandi of, 262–​64 normalization of atrocity crimes, 262 repressive operations by, 256–​62, 263, 264, 266–​67 role of institutions of criminal justice, 263 role of police, security forces, criminal justice agencies, 258–​59 South African police force, 237–​38, 258–​59, 260–​61, 267 SS (Schutzstaffel) (Germany), 76–​77, 79, 86, 256, 260, 263–​64, 265, 269n.36, 272–​73 targeted persecutions of, 262–​63 transformation from normal to atrocious, 265–​68 types of crimes committed by, 257–​59 white-​collar bureaucrats, 268, 269 Atrocity Crimes Framework (United Nations), 6, 255–​56 atrocity studies, 7–​8 atrocity triangle, 12, 304–​6, 305f, 307, 311–​12 Australia commemorative rituals, 768 customary justice practices, 704 off-​shore detention center, 394 Austria, recruitment/​training of child soldiers, 356 authoritarianism/​authoritarian regimes, 78, 89–​90 Bogart’s comment on, 193 collaboration with corporations, 395–​96, 399–​400, 407–​8, 409, 417 in Latin America, 260–​61, 262–​63, 399–​400 repression in the Soviet Union, 224 “right-​wing authoritarianism,” 222 role in instigating mass violence, 289 in Rwanda, 346

924   index autocracy, 192–​93 autonomous self, 462–​63, 468–​69   banality of evil, 284, 293, 425–​26 banality of opportunism, 9–​10, 86–​87, 91 Barbie, Klaus, 282 The Belfast Guidelines on Amnesty and Accountability, 678 Beltrán-​Leyva (Mexican drug cartel), 379 Bessarabia, 219–​20 Bettelheim, Bruno, 470 Bijeljina massacre, Bosnia, 148–​49 biological experimentation on civilians, 30 Blackwater Security Consulting, 373 blood diamonds, 167–​68, 169–​70 Boko Haram, 452 Bolsonaro, Jair, 588 Bosnia and Herzegovina (BiH) atrocity crime reports in, 267 Bijeljina massacre, Bosnia, 148–​49 categories of death, 484 civil registration data collection, 489 conflict-​related deaths database, 495 criminal enterprises in, 265 data from exhumations, 497 electoral lists data collection, 495 five categories of death (1992-​1995), 484, 496 ICTY population project, Office of the Prosecutor, 500–​5 legal vs. political solutions, 36–​37 lists of missing and dead persons, 501 multiple systems estimation data, 499 numbers of death, 486–​87 Srebrenica massacre, 39, 134n.91, 135, 441, 484, 497, 501–​4, 504t, 628–​29, 659–​60 Srebrenica memorial, Bosnia, 767 torture in, 38, 39, 265–​66, 269–​70 U.S. failure to prevent/​react to, 103 use of child soldiers, 356 use of sports stadiums for detention, 430–​31 war death estimates, 486–​87 Bosnian Book of the Dead (BBD), 57, 496 Brandt, Willy, 586–​87 Brazil amnesties for police/​security officers, 272 establishment of truth commissions, 683–​84

exhumation of mass graves, 497–​98 repressive regime in, 256 British East India Company, 395 Burma, use of child solders, 356 Burundi genocide, 100 enforced disappearances, 261 miscategorization of atrocities in, 144 reduced use of child soldiers, 354–​55 truth commissions, 694 bystander continuum, 13, 308f bystanders (side-​standers, stand-​asiders). See also individuals as bystanders atrocity triangle and, 12, 304–​6, 305f, 307, 311–​12 bystander continuum, 13, 308f bystander effect, 313–​15 classification of, 309–​11 description, 83 individuals as, 303–​24 types of, 309–​11   Calley, William, 106–​7 Cambodia/​Cambodian genocide. See also Khmer Rouge commemorative rituals, 768 communist mass violence processes, 248–​52 deaths of the Chaims, 103–​4 delay in U.S. intervention in, 36–​37 detention center S-​21, 263 excess deaths data, 485, 491 Extraordinary Chambers in the Courts of Cambodia, 97, 263–​64, 282, 393, 620n.7, 649, 909–​10n.35 interrogations under torture, 264 Khmer Rouge’s atrocities in, 79–​80, 97–​98, 214, 248–​52, 256–​57, 258 Khmer Rouge’s “super great leap forward” in, 12, 248–​49 “killing fields” tactics/​violent deaths data, 499, 586 mortality estimate method, 58 population pyramid (2000), 493f torture in, 251, 264, 434, 663–​64 Vietnamese deaths in, 103–​4 Canada customary justice practices, 704 Indigenous law in, 709

index   925 Truth and Reconciliation Commission, 760 Vancouver Principles, 353 Cape Town Principles, definition of child soldiers, 352 capture-​recapture research method, 55–​56, 59–​60 CAT. See Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment causal analysis (U.S. State Failure Task Force), 106–8 CEDAW. See Convention on the Elimination of All Forms of Discrimination against Women Central African Republic, 82–83, 149–50, 214, 354–55, 445 Central Asia, 704 Centro de Investigación y Educación Popular (CINEP) (NGO), 814 Chad, use of child soldiers, 354–55 Chaims, deaths in Cambodia, 103–4 Chechnya, use of child soldiers, 356 “check the box” approach to transitional justice, 598 child mortality in Africa, 484 children associated with armed forces. See child soldiers Child Soldier International, 354–55 child soldiers, 5–6, 12, 13–14 advocacy groups on, 354–55 in Angola, 355, 779–80 Cape Town Principles, definition, 352 in Chechnya, 356 Coalition to Stop the Use of Child Soldiers, 354–55, 356 in Colombia, 355–56, 357–58, 366 disarmament, demobilization, reintegration (DDR) programming, 359–60 Geneva Conventions prohibition, 351–52 global realities/​global demobilization programs, 354–56 in Guatemala, 355–56 Hollywood documentary films on, 365–66 increased Western media interest, 363–66 in Lord’s Resistance Army, Uganda, 332, 353–54 New Barbarism and, 161–62

Paris Principles broadened designation, 352–53 persistence of reductive portrayals of, 366 post-​war challenges for girl soldiers, 362–63 re-​integration of, 358–59 rights violations during/​following armed conflict, 357–58 Roméo Dallaire Child Soldiers Initiative, 353 stigma and community rejection, 360–61 term derivation/​variations, 353–54 treatment as victims, 352–54 UN Convention on the Rights of the Child prohibition, 352, 357 unique victimization experiences of girls, 361–62, 365 Vancouver Principles focus on prevention, 353 various roles of, 356 Western media/​heroic representations of, 365 Western media portrayals of, 363–65 Chile amnesties for police/​security officers, 272 enforced disappearances from, 256–57 establishment of truth commissions, 587 exhumation of mass graves, 497–98 Museum of Memory and Human Rights, 760 public executions in, 258–59 repressive regime in, 256 torture by the DINA in isolated basements, 84 2003 Truth Commission, 272–73 China corporate involvement in genocide, 394 Cultural Revolution, 263 Great Leap Forward, 244–45 killings/​state-​induced starvation, 586 mass detentions, 262 meso-​level pattern of mass killings, 243 systematic repression, 586 use of environment as a tool of war, 516 Christian Assyrians, 66–67 Christian Jews, 62–63 civil wars in Afghanistan, 89 in Angola, 19–20, 775–76, 779, 781–82, 785–86, 791

926   index civil wars (cont.) in Bangladesh, 491 in Burundi, 565 in Central African Republic, 214 in Côte d’Ivoire, 444 creation of displacement camps, 245 in Democratic Republic of Congo, 170–72, 414 in El Salvador, 651 in England, 89 findings of macro-​level studies, 168–69 in Guatemala, 214, 259 in Indonesia, 399–400 in Iraq, 384 in Ireland, 377–78 in Latin America, 20, 399–400 in Lebanon, 89 in Liberia, 89 micro-​level studies on resources, rebel governance, atrocity crimes, 168–69 multifunctional role of violence in, 151 natural resources and, 167 New Barbarism and, 162–63 in Papua New Guinea, 399–400 in Rwanda, 334, 340–41, 344 in Sierra Leone, 224, 434–35 in Sudan, 433 in Syria, 164, 224, 515 in Uganda, 710–11 in the United States, 29–30, 89, 365, 430–31, 492 climate change natural resources and, 159–61, 163, 164–66, 175–76 urbanization and, 11 Clinton, Bill, 98, 497–98 Coalition for the International Criminal Court, 619n.6 Cockburn, P., 151–52 cognitive dissonance, 285, 290, 316–17, 832 Cold War defining ideologies of, 778–79 impact of collapse of Soviet Union, 36–37 influences on military/​security/​police force practices and trainings, 260–61 post-​Cold War era, legal definitions, 36–38 post-​Cold War norm cascade, proliferation of atrocity crime trials, 732–33

post-​Cold War organized violence, 210–11 post-​Cold War upsurge in mass atrocity crimes, 14, 373 post-​Cold War violence in Indonesia, 214 realpolitik-​induced silence of, 27 collective memory, 202, 568, 761, 762, 763–64, 807–8 collective nature of mass atrocity, 76–77 Collier, Paul, 169 Colombia, war crime, atrocities, and resistance, 801–20 Center for Historical Memory (CHM), 810 Commission for the Clarification of Truth, Coexistence, and No Repetition (CEV), 818 comparative perspective atrocities, 801–3, 819–20 crimes by paramilitary groups, 257–58 decapitation of victims, 809–10 displaced persons data, 515, 515n.11 emergence of paramilitarism, 807 enforced disappearances, 256–57 ethnocide/​genocidal assault against Indigenous groups, 813 exhumation of mass graves, 497–98 “False positives,” 813 Fuerzas Armadas Revolucionarias de Colombia (FARC), 652, 694, 801, 803, 806, 808, 811, 813, 817–18, 819, 820 granting of amnesties, 593–94, 694 homicide rate, 805f Indigenous Quintin Lame Armed Movement (MAQL), 806 key atrocity episodes, 812–13 massacres, 801–2, 808, 809f, 815, 819 Medellín and Cali cartels drug trafficking, 807–8 membership in International Criminal Court, 818 memorialization, 759 National Center for Historical Memory (CNMH), 816–17 National Commission on Reparation and Reconciliation, 816–17 National Liberation Army (ELN), 806 19th of April Movement (M-​19), 806, 816 patterns of atrocities, 808–11 peace process, 600–1, 694

index   927 political/​narco-​related violence in, 776 politicide of the Patriotic Union Party (UP), 812 Popular Liberation Army (EPL), 806 resistance to atrocities/​institutional and community reactions, 814–19 role of justice cascade in, 395–96 role of women/​LGBTI organizations in peace processes, 600–1 rural area concentration of crimes, 260–61 selective political violence in, 776 Self-​Defense Forces of Córdoba and Urabá(ACCU), 807 “social cleansing” campaigns, 813 Special Jurisdiction for Peace, 809–10, 817 torture of civilians, 809–10 transitional justice program, 20, 597 truth and reconciliation commissions, 498, 694 United Self-​Defense Forces of Colombia (AUC), 807 unresolved cases of disappearance, 260–61 use of child soldiers, 355–56, 357–58, 366 use of sexual violence, 811 victimizers and victims, 806–8 Victims and Land Restitution Law, 816–17 violence against civilians, 169 Commission for the Identification of the Truth, Coexistence, and Non-​Repetition (Colombia), 694 Commission of Inquiry into Post-​Election Violence (CIPEV) (Kenya), 62 Commission on the Investigation of Disappeared Persons, Truth and Reconciliation Act (Nepal), 693–94 Committee to Protect Journalists, 765 Communist Party of Cuba, 375 Complex Post-​Traumatic Stress Disorder (CPTSD), 914–15 Comprehensive System of Truth, Justice, Reparation, and Non-​Repetition (Colombia), 694 conceptual disruptors, 27, 43–44, 45 Conference on War and National Responsibility, 523–24 confessions, forced false, 250, 251–52, 264 conflict analysis, 106, 153–54

conflict entrepreneurs declaratory international criminal procedure and, 82–83 defined, 80 exhortation of violence by, 84 Congo Free State, 5 control theory, 87–88 Convention against Discrimination in Education (UNESCO), 123 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (CAT), 117, 122 conventional crime comparison to extraordinary international crimes, 86–91 defined, 77 types of, 78 Convention Concerning the Protection of the World Cultural and Natural Heritage (UNESCO), 123 Convention Concerning the Status of Refugees Coming from Germany, 540 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (Geneva Convention), 30n.5 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention), 536–37, 548–49 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 117–18, 123–24 Convention on the Prevention and Punishment of Genocide (1948) (United Nations), 32–34, 38–39, 143–44, 447–48 adoption of legal definition of genocide, 4, 104, 130–31, 189 Article II (article 2), 33–34, 189n.5 Article VIII, 447–48 description as a crime suppression treaty, 129 emphasis on membership in specifically defined groups, 97–98 Ethiopia as leading protagonist of, 803, 872 on the forcible transfer of children from one group to another, 543–44 identification of vulnerable groups, 107–8 as ill-​fit within the international human rights system, 129

928   index Convention on the Prevention and Punishment of Genocide (1948) (United Nations) (cont.) inclusion of ecocide, 524–25 inclusion of rape, 41, 909 intent of, 38–39 Nazi Holocaust association, 37–38, 98–99 non-​state actors and, 105 potential for adverse effects on political will, civilian protection, 43–44 scope of, 129 UN General Assembly adoption of, 29n.4, 32–33 Convention Relating to the International Status of Refugees (1933), 540 corporate involvement in atrocity crimes, 393–418 bystander corporations, 303n.1 case studies: Democratic Republic of the Congo, 414–16 case studies: Holocaust/​Nazi Germany, 411–14 collaboration with authoritarian regimes, 395–96, 399–400, 407–8, 409, 417 collective actors in a collective enterprise, 396–98 collective criminality theory and, 396–97 corporate complicity data, actors and partners, 405t corporate fraud, 78 crimes against humanity, 401, 402t crime scripts of, 406–10 criminal charges at Nuremberg Trials, 395 criminological aspects of, 258 gains/​benefits data, 409t genocide, 394, 403t German corporations, 395 global regions data, 20th/​21st century, 400f in the Holocaust, 256, 399n.13 host and home countries of corporations, 401f industry sectors data, 404t Malabo Protocol and, 396–97, 416 multi-​national corporations, 375 role in shaping legitimation of actions, choices, 258 role of justice cascade in accountability norms, 394, 395–96, 416

time span of involvement, 401 types of indirect involvement data, 407t types of state-​corporate crime, 397, 405, 413–14, 416–17 types/​prevalence of crimes, 398–405 war crimes, 402t COVID-​19 pandemic, 492 CRC. See United Nations Convention on the Rights of the Child (Article 38) (CRC) crime of aggression, 6, 35–36 defined/​Rome Statute, 6, 35–36 as focus of the International Military Tribunals, 35–36 historic development of, 35–36 crimes against humanity, 2–6, 34–35. See also enforced disappearance; enslavement; rape; sexual slavery; sexual violence; torture causes of, 213 corporate involvement, 401, 402t defined, Article 7, Rome Statute, 35, 342n.17 description, 145–46 distinction from genocide/​war crimes, 88–89 enforced disappearance, 5, 116, 123 in Ethiopia, 854–58 historic development of, 34–35 human rights and, 133–34 in Indonesia, 829–47 large-​scale/​widespread/​systematic violence, 5, 39, 44, 145–46 limited doctrinal controversies, 629 misuse of data on, 498 persecution as, 121–22 role of non-​state actors in, 221, 377 shared features with war crimes, 35 skeptical perspectives on, 213–16 triggers for, 854–55 crime scripts, of corporate involvement, 406–10, 407t, 409t crimes of obedience, 285, 293 criminal justice system (CJS), 54 Criminal Law Forum, 619n.4 criminological domains of study etiology, 52, 60–63 prevalence, 52, 57–60 reaction, 52, 64–66 victims/​societies, 59, 66–69

index   929 criminology description, 7 supranational criminology, 7–8, 285–86, 461, 795 Croatia, exhumation of mass graves, 497–98 Crude Mortality Ratio (CMR), 58 Cultural Revolution, China, 214 customary justice, 703–20 applicability to atrocity crimes, 706 common characteristics of, 707 defined/​described, 703–7 distinction between law and justice, 703n.1, 705 in Fiji Islands, 712–14 future prospects in application to atrocity crimes, 718–20 gamba spirit ceremony, Mozambique, 705 global practice of, 704 invisible difficulties, 714–17 legal pluralism phenomenon, 708–9 relationship with formal law, 708–9 role in community life, 707 transitional justice and, 706–7 in Uganda, 706, 710–12   Dallaire, Romeo, 110 Darfur, Sudan genocide air attacks on villages, 430 al-​Bashir’s indirect genocides, 430–31 atrocity crimes by Janjaweed militia fighters, 245, 425, 429, 443–44 enforced disappearances, 261 group-​making through violence/​fear of violence, 149–50 meso-​level dynamics, 247–48 state-​level coordination of, 425 targeting of African villages, 63 U.S. death toll survey for, 59 U.S. failure to prevent/​react to, 103 use of child soldiers, 354–55 use of satellites for mapping burning of villages, 60 dark number crimes description, 54 double dark number, 57 triple dark number, 60, 69 DDR. See disarmament, demobilization, reintegration (DDR) programming

Delalić, Zejnil, 38 delegitimation process, 272–73 Delić, Hazim, 38 Demjanjuk, John, 76–77 democide, 42–43, 189 democracy dictatorships and, 191–94 explanation of atrocity crimes in, 196–97 Freedom House index data on decline, 187, 192–93, 193n.16 illiberal democracy, 193 non-​state actors in, 191 term derivation, 191 war crimes, 191–94 Democratic Republic of the Congo (DRC) civil wars/​various related conflicts, 414 corporate involvement in atrocity crimes, 395–96, 414–16 crime scripts for involvement in atrocity crimes, 416 DRC v. Uganda legal case, 127, 135 exhumation of mass graves, 497–98 First and Second Congo Wars, 414–15 Lubanga judgment and, 515–16 massacre by the Lord’s Resistance Army (LRA), 382 Ntaganda’s leadership, 82n.12 perpetration of atrocities, 342 population-​based surveys, 60 rape by soldiers, 653 reduced use of child soldiers, 354–55 resource-​related greed in, 170 truth commission, 693 UN approach to crises in, 445 UN’s multidimensional peace operations, 452 use of child soldiers, 354–55 use of terror tactics, 170 Demographic and Health Surveys (DHS) (USAID), 66–67 dictatorships (dictatorial regimes). See also authoritarianism/​authoritarian regimes; totalitarianism/​totalitarian regimes in Africa, 865 Arab Spring and, 399–400 in Argentina, 395–96, 686 in Chile, 34n.15, 736n.43, 760 creation of crises by the elite, 199

930   index dictatorships (dictatorial regimes) (cont.) democracies and, 191–94 diverging definitions of, 188–89 in Egypt, 34 explanation of atrocity crimes in, 196–97 in Guatemala, 267–68, 879 Hutu dictatorship in Egypt, 104–5 in Latin America, 34, 262–63, 283, 417, 865 in Libya, 444 life integrity violations and, 190–92, 191n.9, 194–95, 196, 201–2 in Myanmar, 399–400 non-​state actors in, 191 reasons for negative opinion of, 187 repression and, 187, 189, 190–91, 193–97, 199, 200–1 spectrum/​range of, 193–94 term derivation, 191–92 Dillon, Michael, 148 disarmament, demobilization, reintegration (DDR) programming in Angola, 783 of child soldiers, 354, 359–60 critiques of, 360 need for expanded programs, 368 in Sierra Leone, 359–60 Vancouver Princples, 368 disciplinary silos, 11, 159–60 discrimination-​based violence, 88 displaced persons. See internally displaced persons (IDPs) doctrines of ethnic superiority, 107 justification of killings, 107 donor fatigue, 111–12 double-​blind randomized controlled trials, 53 Douglas, Lawrence, 595–96 Downes, D., 87 Draft Codes of Crimes against the Peace and Security of Mankind (the Code), 525–26, 526n.45, 528 drug cartel wars, 148 Dunant, Henry, 29–30 Durban Racism Conference (United Nations’ World Conference against Racisim, Racial Discrimination, Xenophobia and Related Intolerance), 739 Dutch East India Company, 395 duty to rescue doctrine, 322–23, 322n.41

early warning systems of genocides, politicides. See also predicting/​early warning (EW) systems of genocides, politicides (geno/​politicides) Forum of Early Warning and Early Response, 110 goals of, 110–11 Humanitarian Early Warning System, 110 U.S. State Failure Task Force models, 105–9 East Timor/​East Timor genocide East Timor Special Panels, 82–83 exhumation of mass graves, 497–98 transitional processes in, 597 Eav, Kaing Guek, 282 ecocide, 511–28. See also environment as atrocity crime, 523–26 Convention on Ecocidal War, Sweden, 524 definitions, 523–24, 526 ICC statement on, 512 impact of inhumane weapons, 512 impact of the human imprint on the environment, 513 practices and prosecutions, 522–23 Principle 24, Rio Declaration on the Environment and Development, 511–18 Vietnam War as, 524 war crimes and the environment, 521–22 “economics gap” in genocide studies, 159–60 ECtHR. See European Court of Human Rights Egypt, 34, 107–8, 261, 543–44 Eichmann, Adolf, 282, 425–26, 543n.31 El Salvador deaths from armed conflicts, 490–91 enforced disappearances from, 256–57 intergenerational cultural transmission, 566 rapes/​massacres, 651 truth commissions, 683–84 truth-​seeking bodies in, 683–84 use of child soldiers, 355–56 validation of amnesty laws, 680 women-​driven transitional justice initiatives, 600 enforced disappearance, 5, 116, 123, 133, 256–57, 258–59, 260, 261, 262–63, 266–67, 268, 271, 273. See also forced migration (forced displacement) enforced prostitution, 664 enforced sterilization, 402t, 664

index   931 enslavement, 5, 35, 101, 126–27, 381, 382–83, 664–65, 836–37, 840–41 entrepreneurs of violence, 149–50 environment. See also ecocide; natural resources African Union’s criminalization for crimes against, 396–97 and atrocity crimes, future research, 175 as cause of armed conflicts, 514–16 environmental determinism, 159–60 environmental harm in the Anthropocene era, 512–13 impact of genocide and civil war violence, 175 international criminal law’s limitations in protectiing, 523–24 interplay of dictatorial regimes and, 198 resource conflicts, 514 resource scarcity and, 162 role of corporations in exploitation, 406, 409–10 Rome Statute environmental crime perspective prohibitions, 519–21 as a tool of armed conflicts, 516 as a victim of armed conflicts, 517–18 war crimes and, 521–22 environmental determinsm, 159–60 environmental harm in the Anthropocene era, 512–13 Erdemović, Dražen, 82–83 Erdoğan, Recep Tayyip, 588 Ethiopia, 853–72 Adis Ababa massacre, 859 Anuak-​Nuwer trials, 868 atrocity crime trials in Ethiopia, 865–69 atrocity crime trials outside of Ethiopia, 869–71 child soldiers in, 366 Coalition for Unity and Democracy (CUD), 868 colonial violence era, 858–59 Communist violence era, 859–61 crimes against humanity in, 854–58 Criminal Code (2004), 857 death by hunger/​famine, 861 ethnic violence, 862–64 Federal High Court (FHC), 868

forced deportations, 858–59 international/​domestic reactions, 864–71 Italy’s atrocities against, 858–59 kushuk campaign, 860 mass atrocity time period (1935-​2019), 858 mass detentions, 858–59 mass graves, 858–59 punishment of perpetrators, 20–21 rape, 858–59 “Rape of Ethiopia,” 858–59 ratification of the UN Convention on the Prevention and Punishment of the Crime of Genocide, 855–56 Red Terror/​Red Terror Trials, 860, 865–66, 870–71 Revolutionary Defense Squads, 860 Special Prosecutor’s Office (SPO), 865–70, 872 torture in, 853–54, 860, 862–63, 865, 867, 870 transitional justice in, 20–21 waves of ethnic/​intercommunal violence, 853–54 White Terror (guerilla-​style urban warfare), 860 ethnic cleansing in Bosnia and Herzegovina, 500n.29, 628 definitions, 6, 143–44, 856–57 in Ethiopia, 853–54 forced migration and, 535 in the former Yugoslavia, 6 mass rape and, 650 of Muslim population by the Anti-​Balaka, 546 perpetrator’s belief in rightness of, 84 rape as an instrumental of, 432n.12 rationale for targeting certain groups, 214 responsibility to protect (R2P) doctrine and, 441–42, 549, 550, 582n.2 by Russian Federation of ethnic Georgians, 435 ethnic superiority doctrines, 107 European Court of Human Rights (ECtHR) Al-​Skeini and Al-​Jedda cases, 124–25 examination of relevant IHL cases, 124–25 evidentiary impediments, 635–37 exclusionary ideologies, 106–7, 216, 223–24 exhumations of mass graves, 497–98

932   index Extended Genealogical Method, 488 extra-​judicial killings, 256, 258–59, 262–63, 272, 273–74 Extraordinary African Chambers, 649, 659n.23, 669 Extraordinary Chambers in the Courts of Cambodia (ECCC), 97, 263–64, 282, 393, 620n.7, 649, 909–10n.35 Êzidîs (Yazidis) genocide. See Iraq, Êzidîs (Yazidis) genocide   false confessions, 250, 251–52, 264 La Familia Michoacana (Mexican drug cartel), 379 Farabundo Martí National Liberation Front (El Salvador), 651 Fariss, C. J., 259 fascism, 27, 104–5, 107 Fearon, J. D., 145 Fein, Helen, 129, 190, 285 Fellowship of Reconciliation (NGO), 814 Ferencz, Ben, 620 fertility patterns, impacts of conflict on, 67 field and trend monitoring, 102 Fiji Islands, customary justice practices, 712–14 forced abortion, 664 forced marriage, 40, 536–37 forced migration (forced displacement), 16, 20, 21–22, 255–56, 258–59. See also internally displaced persons (IDPs) Armenian Arrangement, 539–40 causes of, 16 criminalization of, 542–45 global data (2020), 16, 535 historical treatment of, 537–38 Huguenot flight from France (1685), 537–38 human rights abuses and, 535 internally displaced persons, 58, 429, 547–49 international response to, 536 misuse of data on, 498 “Nansen Passports,” 539 Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa, 541–42 Refugee Convention (1951) protections, 535–36, 541–42

refugees/​refugee protection, 539 role of international tribunals, International Criminal Court, 545–47 Russian Arrangement, 539–40 shifting international response to, 536–37 United Kingdom, Aliens Acts (1793, 1798), 538 UN Nations High Commissioner for Refugees Statute, 536, 541, 547 forced pregnancy, 402t forced silence, 316n.28 Ford, Gerald, 678 fored nudity, 650 Forum of Early Warning and Early Response (FEWER), 110 Fourth Geneva Convention (1949), 351 “Framework for Analysis of Atrocity Crimes” (United Nations), 3, 255–56 France BNP Pasibas Bank’s involvement in Rwandan genocide, 394 recruitment/​training of child soldiers, 356 French Revolution, 100–1 Frente de Libertação de Cabinda (FLEC) (Angola), 776 Frente de Libertação de Moçambique (Mozambique), 366 Frente Nacional de Libertação de Angola (FNLA), 777–79, 785–86, 791–92 Front de Libération Nationale, Algeria, 375 Fuerzas Armadas Revolucionarias de Colombia (FARC), 355–56, 652, 694, 801, 803, 806, 808, 811, 813, 817–18, 819, 820   Gacaca courts, 79–80, 294n.22, 330n.2, 343, 343n.18, 344, 345, 596–97, 705 Gaddafi, Muammar, 444 gang rape, 653, 654 gang violence (gang-​related delinquency), 78, 87–88 Garton Ash, Timothy, 583, 584 Gbagbo, Laurent, 444 Geneva Conventions Additional Protocols, 30, 30n.9, 351–52, 593, 680 adoption of, 481–82 Common Article 1, 447–48

index   933 Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 630n.41, 656–57n.11 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 30n.5, 630n.41, 656–57n.11 Convention Relative to the Protection of Civilian Persons in Time of War, 30n.8, 630n.41, 656–57n.11 Convention Relative to the Protection of Civilians in Time of War, 30, 40, 351, 455 Convention Relative to the Treatment of Prisoners of War, 629–30, 630n.41, 656–57n.11 Convention respecting the Laws and Customs of War on Land and its annex, 30 definitions/​types of violence, 376–77 Law of Occupation, 455 Relating to the Protection of Victims of International Armed Conflicts, 29n.3 genocide, 4. See also genocide, archetypes and alternatives; Genocide Convention; genocide/​politicide (geno/​politicide) Armenian Genocide, 31 in Biafra, 100 in Burundi, 100 conceptual disruptors, 27, 43–44, 45 corporate involvement, 394, 401, 403t definitions, 4, 41, 42–43, 98–99, 104, 130–31, 627–28 democide vs., 42–43, 189 distinction from war crimes/​crimes against humanity, 88–89 early warning (EW) systems of, 98 in East Timor, 100 economic and political factors, 197–201 genocides of conquest, 101 as group-​centric vs. individual-​centered atrocity, 38 in Guatemala, 879, 881, 884–86 historic development of, 31–34 human rights and, 129–33 international criminal law and, 627–29 labeling of intentional murder as, 97–98 legal definition, 189 legal vs. operational definitions, 104–5 Lemkin’s role in criminalization of, 31, 32

Malthusian formulations and, 164 military participation in, 427–28 military/​policing agencies participation, 424 misuse of data on, 498 overlapping fields of study, 159–60 perpetrators escape from punishment, 97 post-​colonial genocides, 100 post-​coup and post-​revolutionary genocides, 100–1 post-​war-​post-​imperial genocides, 100 post-​World War II identification of 46 genocides, 100 rank-​and-​file perpetrators, 83, 212, 213–14 rape as an act genocide, 41 role of NSAs in committing, 377 in Southern Sudan, 100 state involvement in, 423–24 structural and early warning (EW) models, 105–6 temporal progression of human rights violations, 131–33 genocide, archetypes and alternatives, 335–46 guilty perpetrator, 343–46 heroic combatant, 340–43 innocent victim/​survivor, 337–40 Genocide Convention. See Convention on the Prevention and Punishment of Genocide (1948) (United Nations) genocide museums, 762 genocide/​politicide (geno/​politicide) defined, 99 derivation of terminology, 189 early warning (EW) systems of, 103 post-​World War II lives lost, 101 risk assessments, 101–3, 110 genocide/​politicide (geno/​politicide), typologies, 100–1 genocides of conquest, 101 inclusion of “utilitarian” mass killings, 174 national upheaval concept, 100 post-​colonial genocides, 100 post-​coup and post-​revolutionary genocides, 100–1 post-​war-​post-​imperial genocides, 100 Genovese, Kitty, 313–16, 313–14n.24 Georgia (country), 356, 435, 526n.45, 870 German Reserve Police Battalion 101, 331–32

934   index Germany. See also Holocaust; Nazis/​Nazi Germany attack on neutral Belgium, 30n.7 conviction of octogenarians/​nonagenarians for Holocaust-​era crimes, 76–77 emergence of ethno-​nationalism, 107 International Military Tribunals focus on, 35–36 Luxembourg Agreement with Israel, 729– 30, 729n.16, 732 population pyramid (1960), 494f Gestapo (Secret State Police) (Nazi Germany), 256, 260, 265, 269n.36, 396–97 Global South amnesties and, 676 consequences of the failure to address colonialism’s legacy, 595 origination of transitional justice processes, 604–5 support for accountability/​criminal trials, 676 use of imagery of children used in humanitarian emergencies, 364 use of truth commissions, 683 wars over territorial disputes, 514–15 Global Witness organization, 765 Gobodo-​Madikizela, Pumla, 296 Goebbels, Joseph, 282, 283–84 Gore, Al, 98 Göring, Hermann, 283–84, 296 Göth, Amon, 85 government one-​sided violence (Kreutz), 190 Graeber, David, 474–75 Graziani, Rodolfo, 865 Great Britain, 29, 34, 540 Great Leap Forward, China, 244–45 Greek torture school, 289–90 Greenpeace (NGO), 375 grievances collective grievances, 142 environmental scarcity, 163–64 intergroup hatreds, 169 political grievances, 162, 169 urban grievances, 164 Groening, Oskar, 76–77 group boundaries across criminal categories, 38–39

Guatemala, 879–96 armed conflict (1960-​1996), 21 child soldiers in, 355–56 “cleansing operations” of police, 267–68 Commission on Historical Clarification (CEH) report, 883–85 data collection by truth and reconclilation commissions, 498 enforced disappearances from, 256–57, 267 exhumation of mass graves, 497–98 genocide, 879, 881, 884–86 genocide trials, reactions/​counterreactions, 887–93 granting of amnesties, 272, 686–87 Guatemala Never Again report, 884 Guatemalan National Revolutionary Unity (URNG)perpetrators, 880 history of the conflict, 879–83 institutional reforms, 895 National Police of Guatemala, 257n.6, 262–63, 266 National Reconciation Law (NRL) amnesty law, 886 National Reparations Program, 893–94 police/​security forces/​military, as perpetrators, 256, 259 Recovery of Historical Memory (REHMI) project report, 884–85 recruitment of informers, 270 repressive regime in, 256 Rio Negro Massacres (1982), 488 torture in, 880–81, 882, 886, 889, 893 transitional justice tribunals in, 596–97 truth and reconciliation commissions, 498 use of child soldiers, 355–56 Guatemalan Civil War, 214 guilty perpetrator archetype, 343–46 Guiora, A. N., 305–6, 307n.10, 320–21 Gulf Cartel (Mexican drug cartel), 375–76 Guterres, António, 447–48   Habyarimana, Juvénal, 334 Hague Conventions (1899, 1907), 5–6, 29, 30, 629–30, 728 Hanning, Reinhold, 76–77 hate speech as a cover for self-​serving violence, 213–14 role in disseminating atrocities, 209

index   935 as a warning sign/​cause of atrocity, 211–12, 220 herd instinct, 107 Herero genocide, German South West Africa, 427–28, 430–31 heroic combatant archetype, 340–43 Higgins, Polly, 526 Himmler, Heinrich, 282, 283–84, 290–91 Hirondelle News Agency, 619–20 “Historical Roots of Our Ecological Crisis” (White), 527 Hitler, Adolf, 282, 283–84, 289, 522–23, 728 Hoess, Rudolf, 287–88 Holocaust (Nazi Holocaust) absence from being mentioned at the UN General Assembly, 129 Brandt’s apology/​commemoration of the murder of Jews, 586–87 corporate involvement, 399n.11, 399n.13, 403–4, 411–14 data on number of murders of Jews, 481 Eichmann’s role in rounding up/​ deportation of Jews, 425–26, 543n.31 as the epitome of atrocity crimes, 256–57 Genocide Convention and, 37–38, 43 German Reserve Police Battalion 101 round up/​execution of Jews, 282–83, 331–32 Germany’s conviction of octogenarians/​ nonagenarians for Holocaust-​era crimes, 76–77 ghettoization/​deportations/​extermination of peoples by Nazis, 33 “inmate” collaboration in Nazi concentration camps, 81–82 making Jews complicit in deportation/​ murder of other Jews, 339, 469 mass internments/​killings of Jews in occupied Poland, 263–64, 267–68 Nuremberg Trials prosecution of perpetrators, 256 qualitative studies of second-​generation survivors, 68 rape of Jewish women, 767 Schindler’s help in rescuing Jews, 308 Sophie’s choice paradigm, 468–69 transferring of Jewish property into “Aryan” hands, 411–12 as trigger for scholarly interest in atrocity crimes, 282

“true believers” in, 214 use of ghettoes and camps, 430–31 HRC, Human Rights Council Humanitarian Early Warning System (HEWS), 110 humanitarian intervention doctrine, 146–47, 442, 448–49 Human Rights Council (UN), 118–19 human rights /​human rights law, 115–36 during armed conflicts, 128 crackdowns by authoritarian regimes, 187 crimes against humanity and, 133–34 definitional variations on violations, 188n.3, 189–91 documented violations in Syria, 57 enactment into domestic law, 115 ethnic cleansing, 6 forced migration and, 535 genocide and, 129–33 human rights movement, 19, 602, 603, 765–66 influence on international humanitarian law, 124 International Court of Justice protections, 127 misuse of data on abuses, 498 need for more direct engagmement with international criminal justice, 135 as prevention, 119–20 recognition of civilian-​targeted abuses, 32–33 repression and, 189 restrictions with derogations, 126 restrictions with no derogations, 126–27 temporal progression of genocide violations, 131–33 terminology used to denote violations, 189–91 top-​down violations of, 84 violations against the Rohingya of Myanmar, 121n.24 violations within state borders, 195n.22 war crimes and, 124–28 Human Rights Watch, 2n.2, 69–70, 620n.7, 814 human trafficking, 78, 130 Hundred Years War, 29 Hungary, emergence of ethno-​nationalism, 107 Hussein, Saddam, 36–37, 84

936   index ICC. See International Criminal Court ICCPR. See International Covenant on Civil and Political Rights ICESCR. See International Covenant on Economic, Social, and Cultural Rights ICRC. See International Committee of the Red Cross ICTR. See International Criminal Tribunal for Rwanda ICTY. See International Criminal Tribunal for the former Yugoslavia ideologies, identities, and speech, 209–26. See also hate speech commonplace moral aims and claims, 222 control of natural resources, 213–14 disagreements over the roles of, 220 jihadist groups (radical groups), 213, 384–86 local rivalries, animosities, community interests, 213 moral disengagement of perpetrators (ideology), 221 most meaningful forms, 220–23 motivation role of, 221–22 qualitative studies and findings, 216–18 quantitative analyses and findings, 216, 217 radicalization toward atrocity crimes, 223–25 rank-​and-​file perpetrators, 83, 212, 213–14 reasons for the powerfulness of, 218–19 revisionist perspective, 216–20 skeptical perspectives, 213–16, 218 strategic material motives, 214 terminology profusion related to, 220–21 traditionalists’ perspective, 212, 221 true believers, 214 types of extreme speech, 209 ideology (ideologies). See also authoritarianism/​authoritarian regimes; dictatorships (dictatorial regimes); totalitarianism/​totalitarian regimes activist vs. opportunistic groups, 172–73 deceit by marketers of ideologies, 107 destructive, of dictatorial regimes, 198, 202–3 divisions created by superpowers, 103–4 ethnic eliminationism motive of actors, 89 exclusionary ideologies, 106–7, 197, 202–3

extremist ideologies and human rights, 119 fascism/​Soviet-​style Marxism, 104–5 groups that benefit ideologically from atrocities, 83 ideological purity niche, 78 intergroup hatreds and, 169, 212 motivations for legitimating frameworks for violence, 119, 218 nationalist ideology, 100 natural resources and, 167–69, 174 New Barbarism, 161–63 private vs. public motives for wrongdoing, 89 IHL. See international humanitarian law India enforced disappearances, 261 group-​making through violence/​fear of violence, 149–50 intercommunal violence in, 214 use of child solders, 356 indigenous groups (populations) attacks by Zetas in Mexico, 380–81 Brazil/​anti-​indigenous violence, 174 in Canada, 709, 760 Colombia displaced data, 515 Fijian community, 712–14 genocide in Guatemala, 21, 259 impact of environmental devastation on, 519, 520–21 Quintin Lame Armed Movement (MAQL) (Colombia), 806 South Africa/​California, settler violence against, 237–38 UN transitional justice report on regard for, 706–7 indirect questioning methods, 55, 55n.3 indirect violence, 141, 235 defined, 235, 258–59 portrayals of, 141 individuals as bystanders, 303–24 atrocity triangle and, 12, 304–6, 305f, 307, 311–12 bystander effect, 313–15 career bystander, 310n.17 defining the role of, 304–7 distant bystander, 309–11 distinguished helpers, 309–11 duty to rescue doctrine and, 322–23, 322n.41 emotionally-​related bystander, 309–11

index   937 enlightened bystander, 310–11n.18 explanation of, 319–20 forced silence and, 316n.28 ideologically-​oriented bystander, 309–11 imposed bystander, 309–11 institutionally-​rational-​bystanders, 309–11 moral/​legal responsibilities of, 320–23 opportunist bystander, 309–11 other hating bystander, 310n.17 personality characteristics, 311–13 professional bystander, 309–11 street-​bystanders, 309–11 transitional justice and, 323 types of bystanders, 309–11 individuals as perpetrators, 281–96. See also perpetrators of mass atrocity core debates, 292–93 current state of research, 288–92 historical overview, 282–83 inter-​/​multidisciplinary area of research, 283–88 questions/​conditions for future research, 293–95 research on perpetrators of international crimes, 295 Indonesia campaign for the release of prisoners, 273–74 civil society’s push for redress, 845–46 Communist Group, 831, 834, 835 data on political detention camps, 829 democratic transition/​decline of democracy, 829–30 documentary evidence of military actions, 257n.6 enforced disappearances, 844 enslavement/​forced labor, 840–41 exterminations/​systematic killings of prisoners, 839 forced deportations to internment camps, 841 imprisonment, 841–42 killings as crimes against humanity, 829–47 Komas Nasional Hak Asasi Manusia, 830–32, 836–37, 838–39, 840, 841, 843–44, 845, 846–47 mass killings, 1965, 243n.8 mass murder of unarmed civilians, 829

murders during detentions, 838 murders during interrogations, 838 National Human Rights Commission (Komas HAM), 830–32, 836–37, 838–39, 840, 841, 843–44, 845, 846–47 national network of death squads, 835n.18 Northern Maluku Province intercommuncal atrocities, 217–18 perpetrators and victims, 834–35 persecution, 843–44 post-​Cold War violence, 214 public killings/​“spectacular violence,” 838–39 reformasi period, 829–30 sexual violence, 843 targeted groups, 835 torture in, 260–61, 264, 831, 836–37, 838, 841–43, 846 truth commission (2004), 693 use of child solders, 356 use of death lists, 840 Indonesian Communist Party (PKI, Partai Komunis Indonesia), 829, 832–34, 835, 838, 840, 841, 843–44 Indonesian National Commission for Human Rights report, 20 Indonesia-​Timor-​Leste Commission on Truth and Friendship (CTF), 690–91 innocent victim/​survivor archetype, 337–40 Institute of War and Peace Reporting, 619–20 Inter-​American Convention to Prevent and Punish Torture (1987), 271–72 Inter-​American Court of Human Rights, opposition to amnesties, 594n.36, 681–82 Inter-​faith Commission for Peace and Justice, 814 intergenerational transmission of trauma and violence, 555–71 attachment research and theory, 560, 560n.9 biological mechanisms of trauma transmission, 562–63 broadening of orientations, perspectives, 563–64 children of Holocaust survivors, 558, 562–63 “chosen amnesia,” 561–62, 562n.13 “chosen trauma,” 568–69

938   index intergenerational transmission of trauma and violence (cont.) combat trauma, 557 conceptual/​methodological challenges, 556, 556n.3 conflict trap, 569–71 conspiracy of silence, 561–62 defining the problem, 558–60 description, 555–56 enforced silence, 562n.12 familial mechanisms, 560–62, 566–67 genocide and war-​affected contexts, 557–58 growth of research on, 11, 52–53 historical background, 557 “historical trauma” of American Indian and Alaska Native (AIAN) communities, 562, 567–68 impact on social relationships and society, 557–58 inconclusiveness of evidence on, 68 mass atrocity violence and group identity, 567–69 from mass violence to “cycle of violence,” 564–65 mechanisms of cultural transmission, 566–67 mechanisms of transmission, 560–63 new developments, 563–69 posts-​traumatic stress disorder, 558–59, 559n.6, 561 psychic trauma, 557–58, 569 “secondary traumatization”/​“vicarious traumatization, 558–59 study of Vietnam War veteran’s families, 557, 561 internally displaced persons (IDPs) in Angola, 776, 781, 790, 793 camp lists, 58 sexual violence against, 62 specific protections for, 536–37, 547–49, 550 in Syria, 810–11 internal triangulation, in interviewing perpetrators, 61 international armed conflict Article 8, Rome Statute and, 28 Bosnia/​Herzegovina and, 38 corporate involvement data, 403t crimes against humanity and, 28n.2

Yugoslav/​Rwandan tribunals and, 35, 37n.17 International Commission of Jurists, 273–74 International Commission on Intervention and State Sovereignty (ICISS), 442 International Commission on Missing Persons (ICMP), 497–98 International Committee of the Red Cross, 455 collection of information from persons who’ve lost contact with famiy members, 496–97 view on amnesties, 680 international community, 441–55. See also Responsiblity to Protect (R2P) doctrine awareness of Apartheid regime of South Africa, 395–96 bystander innocence and, 78 development of instruments to address atrocity crimes, 271–72, 273–74 early warning challenges, 271 efforts against atrocious organizations, 273–74 expectations in holding perpetrators responsible, 2–3 failure to prevent the Rwandan genocide, 98, 103 failure to prevent the Ugandan genocide, 100–1 indeterminacy on issues, 450 need for greater effort on behalf of girls, 360 prosecution of extraordinary international crimes, 91 responsibilities of non-​state armed groups, 452–55 International Convention on the Crime of Ecocide, 524 International Court of Justice (ICJ) protections of human rights, 127 ruling on applicability of the International Covenant on Civil and Political Rights, 128 ruling on the concept of deprivation of life in wartime, 127–28 International Covenant on Civil and Political Rights (ICCPR), 129, 584, 602 protection of cultural rights, 123 right to a fair trial, 123 right to life, 120, 122 treaty rights of, 117–18

index   939 International Covenant on Economic, Social, and Cultural Rights (ICESCR) origin of, 129 treaty rights of, 117–18 International Crime Victim Survey (ICVS), 54n.1 International Criminal Court (ICC), 4. See also Rome Statute of the International Criminal Court Appeals Chamber, 628n.35 convictions for war crimes, 88–89 crimes against humanity, defined, 342n.17 establishment of, 393 failures of the U.S./​China/​Russia in joining, 595 interactions with amnesties, 682 jurisdiction over crimes of aggression, 6 Office of the Prosecutor, 424–25, 659 Ongwen’s trial for war crimes, crimes against humanity, 332 prosecutorial limitations, 36 pursuit of charges against Ngaïssona and Yekatom, 546 statement on ecocide, 512 international criminal justice (ICJ), 617–39. See also international criminal law absence of state accountability, 133–34 bystander accountability/​responsibility and, 321–23 emphasis on the place of victims, 596 evolution/​transformation of mass atrocity prosecutions, 618–25 focus on individual actors, 436 need for more direct engagement with human rights, 135 performance assessments, 623 use of discipline-​specific skills on issues, 623–24 use of tribunals and courts, 396–97 vagaries of the system of, 621–22 varied legal framework of crimes, 124–25 vulnerability of, 617–18 international criminal law (ICL) acknowledgment of the role of business actors, 416 atrocity selectivity, 632–33 bystander responsibility and, 359–60 case selectivity, 633–35

core prohibitions/​punishments, 423–24 the “criminal” in, 627–29 developmental drivers of, 424–25 diversification of scholarship and methodology, 623 duty to rescue doctrine and, 322n.41 enactment into domestic law, 115 evidentiary impediments, 635–37 evolution/​transformation of mass atrocity prosecutions, 618–25 explosion of related scholarship, 619–20 failures of, 91 focus on accountability for atrocity crimes, 6 gaps in ability to take action, 126–27, 321–22 genocide and, 627–29 international humanitarian law (IHL) codified branch of, 629–31 the “international” in, 620 investigation/​prosecution of human rights abuses, 124–25 limitations relating to protecting the environment, 523–24 operation in isolation, 10 predicate of individual agency, action, authorship, 76–77 prohibition of sexual violence, 123–24 prosecution of those deemed most responsible (TMR) for violence, 424–25 role in accountability, 115–16 role in collective crisis and recovery, 79 selectivity, 631–32 successes, setbacks, challenges, 625–37 vulnerability of, 618 war crimes branch of, 629–31 International Criminal Tribunal for Rwanda (ICTR), 4, 36–37 addressing of evidence of sexual violence, 649 Akayesu case, 38–39, 38n.20, 41 Best Practices document, 661 covering by the Hirondelle News Agency, 619–20 criminalization of rape as atrocity crime, 40 empowerments of, 37n.17 establishment of, 282, 481–82 historical background, 626n.31 as part of a system of accountability, 766–67

940   index International Criminal Tribunal for the former Yugoslavia (ICTY), 4, 36–37 addresing of evidence of sexual violence, 649 Appeals Chamber on the goal of genocidaires, 132–33 conviction of Erdemović and Tadić, 82–83 covering by the Hirondelle News Agency, 619–20 criminalization of rape as atrocity crime, 40 Dordevic case, 662 empowerments of, 37n.17 establishment of, 282, 481–82 Furundžija case, 662 investigation of data collected by, 64 Jelisić case, 39 Krstić case, 39 Kunarac Appeals judgment, 656–57 Mucić et al. case, 38, 600–1n.53 as part of a system of accountability, 766–67 population project, Office of the Prosecutor, 500–5 Red Cross collection of information on missing persons, 496–97 Tadic Appeals judgment, 657 United Nations Security Council establishment of, 625 International Crisis Group, 110, 765 international humanitarian law (IHL) categories, 28, 423–24 defined, 28, 115 developmental drivers of, 424–25 ECtHR examination of relevant cases, 124–25 influence of “human rights thinking” on, 124 outlawing of war crimes, 124 prohibition on attacking cultural property, 123 prosecution of those deemed most responsible (TMR) for violence, 424–25 rape as “grave breach” of, 40 regulation of war crimes, 5–6, 28, 124 on treatment of prisoners of war (POWs), 123 International Justice Monitor, 619n.6 International Labour Organization, 273–74

International Law Commission (ILC), 133–34, 525, 629n.36 International Military Tribunals, Nuremberg and Tokyo, 35–36, 37, 431 International Red Cross, 29–30 International Refugee Organization’s (IRO) Constitution, 540–41 International Self-​Report on Delinquency (ISRD)survey, 54n.2 intrastate violent conflicts. See non-​ international armed conflict Iraq, 36–37. See also Iraq, Êzidîs (Yazidis) genocide al-​Qaeda violence in, 373 Ba’ath Party, 375 Blackwater Security Consulting killing of civilians, 373 deaths of Kurds in, 103–4 delay in U.S. intervention in, 36–37 enforced disappearances, 261 exhortation of violence by conflict entrepeneurs, 84 genocide against the Êzidîs, 899–919 group-​making through violence/​fear of violence, 149–50 Shia vs. Sunni violence, 152 transitional processes in, 597 use of child soldiers, 354–55, 356 Iraq, Êzidîs (Yazidis) genocide, 21–22, 899–919 background/​beliefs of Êzidî religious group, 900–1, 902 background of the perpetrators, 912–13 child survivors challenges and struggles, 914–15 complex post-​traumatic stress disorder (CPTSD) of victims, 914 consequences for the Êzidî victims, 913–15 data on number of murders, kidnappings, 907 enslavement/​forced marrigae of girls over eight years of age, 906–7 forced conscription of Êzidî boys and men, 905 genocidal acts by ISIS, 908–10 genocidal intent, 910–12 intercommunal relations of the Êzidîs, 902 ISIS attack on Sinjār, home of the Êzidîs, 899–900, 903–4

index   941 ISIS capture/​massacre of Êzidîs, 903–5 kidnapped boys as child soldiers, 915 material destruction of Êzidî environment and cultural heritage, 907 persecution of Êzidîsm, 901–2 prospects of justice, 916–18 reaction to/​aftermath of, 915–18 sexual slavery of girls and women, 906, 914 vulnerabilities of the Êzidîs, 902 Iraq Body Count project, 57 Irish Republican Army (IRA), 14, 375, 377–79, 383, 386. See also Northern Ireland conflict bombing campaigns, 378 comparison to Lord’s Resistance Army, 383 emergence of, 377–78 murders committed by, 378 political success achieved through violence, 386 violence strategies of, 379 ISIS. See Islamic State of Iraq and Syria Islam fundamentalist Islam, 107 Islamic State of Iraq and Syria, 384–86. See also Iraq, Êzidîs (Yazidis) genocide efforts at appearing as savior of Sunni Muslims, 145 emergence of, 384 genocide against the Yezidi people, 385, 452 mass massacres committed by, 384 pursuit of destruction of abstract identities, 384–85 sexual violence, 652 violent alliances of, 151–52 Ismailis, Shia group, 107 Israel Arab-​Israeli War, 570 demands for reparation payments from Germany, 729 Eichmann’s trial, 331 Holocaust survivor’s relocation, 557, 562 Kapo collaborator trials, 81–82 Luxembourg Agreement with Federal Republic of Germany, 729–30, 729n.16, 732 Nazi and Nazi Collaborators Act, 81–82 opposition to ICC’s investigations, 633n.51 recruitment of child soldiers, 356

Reparations Agreement between Israel and West Germany, 729 settlement/​rehabilitation of Jewish refugees in Israel, 730 Israeli Wall Advisory Opinion, 128 Israel Nazi and Nazi Collaborators Act, 81–82 Italy colonial sphere of influence in the Horn of Africa, 858–59 crimes against humanity in Ethiopia, 858–59 emergence of ethno-​nationalism, 107 Mussolini’s influence on World War II, 192 prosecution of Graziani for collaboration with Germans, 865   Jacobins’ (Robespierre’s) reign of terror, 100–1 Jalisco (Mexican drug cartel), 379 Jama’at al-​Tawhid wal-​Jihad, 902–3n.10 Janjaweed militia fighters, 245, 425, 429, 443–44 Japan atrocities of, 30 biological experimentation on civilians, 30 comfort women redress and reparation movement, 745–46 convictions for “crimes against peace,” 35–36 forced prostitution during World War II, 652 International Military Tribunals, Tokyo, 2n.3, 35–36, 37, 617, 649, 864 kidnapping/​enslavement of women, 745n.77 refusal to engage with victims, 727n.9 rehoming of from WRA camps, 737–38, 738n.48 sexual violence by officers, 649 slaughters of Chinese prisoners of war, 427–28 U.S. internment of Japanese Americans during World War II, 733 Jelisić, Goran, 39 Jewish people. See also Holocaust; Lauterpacht, Hersch; Lemkin, Raphael; Levi, Primo analysis of survival chances in the Netherlands, 62–63

942   index Jewish people (cont.) Bessarabia/​Transnistria, violence against, 219–20 Brandt’s apology/​commemoration of the murder of Jews, 586–87 collaboration in Nazi concentration camps, 81–82 flight from the pogroms or Russia, Eastern Europe, 539 local religious minorities help during World War II, 239 mass internments/​killings in occupied Poland, 263–64, 267–68 Nazi radicalization of policies against Jews, 214 Nazis’ negative bias against/​branding of Jews, 104–5, 212 post-​Holocaust settlement/​rehabilitation of refugees in Israel, 730 jihadist groups (radical groups), 213, 384–86 jus ad bellum (regulations on proper justifications for war), 28, 88–89 jus cogens norms, 81, 681 jus in bello (international humanitarian law), 28, 29–30, 88–89 justice cascade, 19, 393 consolidation of accountability norms, 394, 395–96, 416 description, 393–94, 766–67 in Latin America, 272, 395–96 post-​atrocity memorials and, 19 “just war” tradition, 442   Kabila, Laurent-​Desire, 414 Kabuga, Felicien, 432 Kaddafi, Muammar, 84 Kampala Amendment (Rome Statute of the International Criminal Court), 6 Kapo collaborator trials, Israel (1950s), 81–82 Karadzić, Radovan, 65 al-​Kataeb, Waad, 1 Kelley, Douglas, 86, 285, 296 Kenya genital mutilations of men, 660 study findings on post-​election violence, 62 transitional justice in, 599 Kenyan Truth, Justice and Reconciliation Commission (TJRC), 692

Khmer Rouge. See also Cambodia/​ Cambodian genocide absence of information about, 434 atrocities in Cambodia, 79–80, 97–98, 214, 248–52, 258 conviction of Khieu Sampan of genocide, 97 defeat by Vietnamese forces, 100–1 food rationing in Cambodia, 258 mass detentions/​killings in Cambodia, 263 orchestration of forced marriages, 658 prison system of, 251 seizure of power, 100, 249–51 “super great leap forward” in Cambodia, 12, 248–49 targeting/​murdering of the Cambodian professional classes, 79–80, 263 transition from non-​state to state actor, 375 Ki-​Moon, Ban, 451, 452–53 Kony, Joseph, 381–82 Kosovo exhumation of mass graves, 497–98 mortality estimates, 59–60 NATO intervention/​action in, 103, 442 use of child soldiers, 356 Krstić, Radislav, 39, 501 Kunarac, Dragoljub, 40–41   Landžo, Esad, 38 Latin America atrocity crimes against “subversives,” 210–11 customary justice practices, 704 dictatorships/​repressive regimes, 12, 34, 262–63, 283, 417 granting of amnesties, 272, 683 interrogations under torture, 264 justice cascade, 272, 395–96 justice cascade in, 272 reparations and apologies for, 734 torture in, 260–61, 262–63, 264, 272 transitional justice in, 395–96 truth and reconciliation commissions, 498 use of child soldiers, 355–56 use of torture in, 260–61, 262–63, 264, 272 Lauterpacht, Hersch, 34–35, 44, 45 League of Nations, 30, 31, 539 League of Nations Covenant, 858–59 League of Nations High Commissioner for Refugees, 539

index   943 Lebanon, 89, 173, 570 Lemkin, Raphael, 31, 32, 42, 129, 855–56 Leopold II (Belgian King), 5 Levi, Primo, 287–88, 331, 465, 466, 467, 470–71 Liberation Tigers of Tamil Eelam (LTTE), 145 Liberia granting of amnesties, 18, 687, 691–717 motivations for civil wars in, 89, 161–62 prevalence of rape, sexual coercion, 60 reduced use of child soldiers, 354–55 survey (1994), 60 Truth and Reconciliation Commission, 718–19 violence against civilians, 169 Libya Arab Spring in, 443 exhortation of violence by conflict entrepreneurs, 84 exhumation of mass graves, 497–98 Italy’s “war of extermination” in, 858–59 use of child solders, 356 Lieber, Francis, 29–30, 40 Lieber Code, 29–30, 585 life integrity violations, 190–92, 191n.9, 194–95, 196, 201–2 Lincoln, Abraham, 29–30 Lord’s Resistance Army (LRA), 381–83, 452 activities in Uganda, South Sudan, north of the Democratic Republic of the Congo, 381 attacks on Congolese villages, 383 child soldiers in, 332, 353–54 crimes against children, 382–83 customary justice and, 709 Kony’s leadership role, 381–82 massacres against local populations, 381, 382 peace talks with Government of Uganda, 709 slaughter of worshippers, kidnapping of children, 373 use of landmines on footpaths, 382–83 Lose Zetas (Mexican drug cartel), 379 Luxembourg Agreement, 729–30, 729n.16, 732   Macedonia, use of child soldiers, 356 Malabo Protocol, 396–97, 416 Maliki, Nouri al-​, 453 Malthus, Thomas, 160–62, 167. See also neo-​Malthusianism Mandela, Nelson, 582–83

marriage. See forced marriage Marx, Karl, 160–61 Marxism, Soviet-​style, 104–5 Marxist/​Leninism, 107 “Mass Atrocity Endings Project” (World Peace Foundation), 781 mass detentions, 258–59, 260–61, 262, 263–64, 266, 267–68, 269–70, 272, 842, 858–59 Médecins Sans Frontières (MSF), 781 memory and memorialization, 755–69 in Angola, 791–92 challenges of memorialization, 767–68 collective memory and, 202, 568, 761, 762, 763–64, 807–8 as complementary to transitional justice mechanisms, 760–61 determining whose memories count, 767 as a form of reparation/​public apology, 759 function of memorials for individuals, states, 757–62 genocide memorials, 765 Holocaust Remembrance Day (Yom Hashoah), 764 human rights movement and, 765–66 justice cascade movement, 766–67 lack of women in memorialization efforts, 767–68 memorialization for communities, nations, 759–62 memorialization for individuals, 758 memory booms (memorial mania), 19, 763–65 modern human rights movement and, 765–66 Museum of Memory and Human Rights (Chile), 760 National Holocaust Museum, 767 National Memorial for Peace and Justice, 761–62 remembering of gender-​based violence, 767–68 role of education, 762 Rwanda’s commemorative events, 764 Srebrenica memorial, Bosnia, 767 transitional justice and, 759–60 Universal Declaration of Human Rights and, 765 of violated Jewish women in the Holocaust, 767–68 voices for the marginalized, 761–62

944   index Mengele, Josef, 284 meso-​level actors. See also meso-​level dynamics authority of, 237 collaboration with national level actors, 241–42 comparison with national actors, 240–41 forcing of false confessions, 250, 251–52 from-​the-​middle escalation of violence, 242–43 influence of political dynamics, 241 organization of violence by national actors, 237, 238–39 reasons for collaborating and carrying out violence, 241 response to sub-​national spatial dynamics, 242–43 responsibilities of, 237, 238–39, 240–42, 243–45 role of civil society actors, 239 state vs. non-​state actors, 237 meso-​level dynamics, 12, 235–52 communist collectivization projects, example, 241 Darfur, 247–48 description, 236–37 distortions leading to mass death, 244 example/​Great Leap famine, China, 244–45 example/​Khmer Rouge mass violence in Cambodia, 248–52 example/​mass killings in China, 243 example/​mass violence processes in Cambodia, 248–52 example/​Nazi death camp operations, 241–42 examples/​California and South Africa, 237–38 example/​Soviet Collectivization, 244–45 factionalism at the meso-​level, 241–42 from-​the-​middle escalation, 242–43 information distortions, 243–45 national-​level dynamics comparison, 235–36, 239 national meso-​level interactions, 236, 237–39 Rwanda, 1994, 245–47 South Africa/​California, examples, 235–36 top-​down policies, 240–42

methodological silos, 11, 159–60 Mexican drug cartel, the Zetas, 14 Middle East, 308, 356, 452, 624, 704 Milgram, Stanley, 106–7, 285, 318–19 Mkandawire, T., 61 mortality estimates, methods and data sources, 481–506 active vs. passive reporting, 488 advances in statistical/​demographic methods, 481–82 anthropological/​genealogical methods, 488 Bosnia and Herzegovina, categories of death, 484 Bosnian Book of the Dead and, 57, 496 capture-​recapture method, 59–60 child mortality in Africa, 484 civil conflicts, interstate conflicts, 485 civil registration (CR) systems, 487–88, 489–99 cluster samples, 58–59 Crude Mortality, 58 data (aggregate data), 486–87 database of victims, 495–96 Demographic and Health Survey, 491 electoral lists, 495 estimating methods, 57–58 excess deaths (direct and indirect), 485 exhumations, 497–98 household surveys, 485, 486, 489 ICTY population project, 500–5 large-​scale mortality, 15 lists of missing persons, 496–97 micro-​data (individual-​level data) sources, 486, 488 multiple systems estimation, 499 overcounting/​undercounting, 489–90 perils and challenges, 16, 57 population and housing censuses, 492–95 population projections, 498–99 population registers, 498 reasons for requiring, 481 sample surveys, 482–83, 486, 489–91 state-​based armed conflicts, 484 surveillance, 491 tallying methods, 57 truth and reconciliation commissions, 498 Uppsala/​PRIO data set on battle deaths, 484, 490

index   945 use of quantitative vs. qualitative methods, 483 World Health Surveys death data, 490 Movimento Popular de Libertação de Angola (MPLA), 777–80, 782–83, 784–87, 790, 791–92, 794 Mozambique, Frente de Libertação de Moçambique, 366 Mucić, Zdravko, 38 multiple systems estimation, 59–60, 488, 499, 505 Museum of Memory and Human Rights (Chile), 760 Mussolini, Benito, 858–59 My Lai massacre, Vietnam (1968), 106–7, 214, 222   Nagorno-​Karabakh, use of child soldiers, 356 Nansen, Fridtjof, 539 narrative self, 462–63, 464, 466–68 national human rights institutions (NHRIs), 118–19 National Intelligence Directorate (DINA) (Chile), 84 National Republican Movement for Democracy and Development (MRNDD), Rwanda, 334 Native Americans, 562, 704, 739–40 natural resources, 159–76. See also ecocide; environment blood diamonds, 167–68, 169–70 civil wars and, 19–20, 167 climate change and, 159–61, 163, 164–66, 175–76 Darfur and, 164–65 environmental security literature, 163–67 future research directions, 175–76 greed and resource wars, 169–72 interstate wars over, 163–64 Malthus/​neo-​Malthusianism and, 160–62, 163, 164–66, 167 New Barbarism and, 161–63 new wars theory, 161–62 population growth and, 160–61 rainforest degradation and, 162 rebel governance and, 172–74 resource abundance, 167–69 resource scarcity, 160–67

Rwandan genocide and, 164 Syrian civil war and, 164 urbanization and, 11, 160–61, 163, 164, 175–76 use of atrocities in controlling, 213–14 “utilitarian” mass killings and, 174 wariness of “environmental determinsm,” 159–60 Nazis/​Nazi Germany. See also Holocaust biological experimentation on civilians, 30 charges for corporate crimes, 395 concentration camp/​death camp operations, 241–42, 263–64, 321n.36, 468–69, 536–37, 744n.71 convictions for “crimes against peace,” 35–36 corporate involvement in the Holocaust, 399n.13, 411–14 forced labor camps, Płaszów (Kraków), Poland, 85 ghettoization/​deportation/​extermination of people’s by, 34–35 Jewish “inmate” collaboration in concentration camps, 81–82 motivations for committing atrocities, 331–32 negative bias against/​branding of Jews, 104–5, 212 singling out handicapped, Gypsies, homosexuals, 104–5 transferring of Jewish property into “Aryan” hands, 411–12 neo-​Malthusianism, 161–62, 163, 164–66 Nepal census recording data of violent deaths, 492 draft of Truth Commission law (2007), 693–94 granting of amnesties, 687, 693–94 truth commission, 693–94 use of child solders, 356 Netherlands civil suit against Shell, 394 Dutch “Hunger Winter” study, 67 study of children of Dutch collaborators with Nazis, 67–68 New Barbarism, 161–63 New Zealand, 704

946   index Ngaïssona, Patrice-​Edouard, 546 NHRIs. See national human rights institutions Niebuhr, Reinhold, 59 Nigeria crimes of Boko Haram, 452 hangings of Shell employees, 394 mass atrocity violence/​transitions, 569, 854 19th of April Movement (M-​19) (Colombia), 806, 816 Nkinamubanzi, Anastase, 80–81 nongovernmental organizations (NGOs), 118– 19, 148–49, 187, 343–44. See also Amnesty International; Centro de Investigación y Educación Popular; Freedom House; Greenpeace; Inter-​faith Commission for Peace and Justice; Peace Brigades International advocacy groups campaigns against, 393–94 in Angola, 787n.43, 794–95 efforts to capture media attention on human rights abuses, 765–66 implementation of collective memories, 764 justice cascade and, 766–67 role in documenting atrocities, and advocating for protections, justice processes, 814 role in transitional justice, 597, 604–5 stance against ecocide, 524 use of data on child soldiers for fundraising, 354–55, 364 non-​international armed conflicts (intrastate violent conflicts) (NIACs), 30, 82n.12, 127–28, 142, 543–45, 593, 881 non-​state actors (NSAs), 14, 373–88. See also corporate involvement in atrocity crimes; Irish Republican Army; Islamic State of Iraq and Syria; Lord’s Resistance Army; Zetas, Mexican drug cartel causes/​forms of atrocity crimes, 386–88 comparison with state actors, 374–79 crimes against humanity committed by, 377 genocide committed by, 377 involvement in interstate wars, 142 lack of mention in the Genocide Convention, 105–6

life integrity violations and, 201 limited focus in democratic and dictatorial regimes, 194–95 model for distinguishing, 376f responsibility to the international community, 452–55 types/​forms of violence committed by, 14, 377 types of interactions with states, 376 violence and, 374–77 war crimes committed by, 377 North Atlantic Treaty Organization (NATO), 103, 442, 444, 517 Northern Ireland conflict. See also Irish Republican Army (IRA) community-​based healing practices, 704 customary justice practices, 704 description, 377–78, 387–88 granting of amnesties, 593 North Korea, justification of killings, 107 Norway, recruitment/​training of child soldiers, 356 NSAs. See non-​state actors (NSAs) Nuremberg Trials, International Military Tribunal, 32, 34–35, 86, 256, 431 administration by Allied victors, 37 aggressive war as primary focus, 35–36 charging of corporations with crimes, 395 groups prosecuted at, 256 legal quandaries, 33 as onset of accountability for “crimes against humanity,” 34–35, 36–37, 587 opinion of judges on genocide, 32 prosecution of Holocaust crimes, 2n.3, 31, 256, 282 role in uncovering collaborations of states and corporations, 396–97 role/​purpose of, 260   Obote, Milton, 100–1 Occupied Palestine Territory, 356 Office of the High Commissioner for Human Rights (OHCHR) and Special Rapporteurs, 118, 131 Ongwen, Dominic, 332 ontological assault, 15–16, 462–78 Open Society Justice Initiative, 620n.7 Orban, Viktor, 588

index   947 Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa, 541–42 Organization for Security and Cooperation in Europe (OSCE), 110 the “Other” degrading epithets in referring to, 79 framing/​constructing of, 153–54 ordinary criminal law and, 89 targeting of, 78–80 Ottoman Empire, 31–32, 34–35, 216–17 Ouattara, Alassane, 444   Pakistan, 107, 261 Palestine Liberation Organization (PLO), 145, 383 Palme, Olof, 524 Paris Principles designation of child soldiers, 352 special recognitions of girl child soldiers, 352–53 on treating child soldiers as victims, 352–53 Peace Agreement Database, 682–83 Peace Brigades International (NGO), 814 Peace of Westphalia, 31–32 perpetrators, 80–81. See also ideologies, identities, and speech; individuals as perpetrators as “administrative bureaucracy of evil,” 256 anthropological studies, 287 beliefs that “mass killing is the right thing to do,” 53, 84, 290 biographical works of survivors, 287–88 categories of, 80–81, 256 challenges in studying, 295 conflict entrepreneurs, 80, 82–83, 84 core debates in perpetrator studies, 292–93 criminological research, 286 direct physical perpetrators, 80 escape from punishment, 97 extraordinary international crimes, 84–85 feelings of shame, 53 group behaviors of, 84–85 historical background, 282–83 individuals as, 281–96 initial research focus on the Holocaust, 282–83

inter-​/​multidisciplinary areas of research, 283–88 internal triangulation in interviewing, 61 personality profiles of, 85–86, 89–91 political science focus on, 286 psychological research, 285 questions/​conditions for future research studies, 293–95 rank-​and-​file vs. ideological true believers, 213 research study comparisons, 283 scholarly research findings on, 288–92 scope of research studies, 283 situational leaders, 80 social psychology profiles of, 84–86 sociological research, 285–86 written biographies of, 284 personality transformation, 106–7, 216, 223–24 Peru enforced disappearances from, 256–57 Truth and Reconciliation Commission, 498, 741–42 use of child soldiers, 355–56 Philippines, 261, 356, 658–59 Physicians for Human Rights (PHR), 60, 501, 765 Pinochet, Augusto, 34n.15, 84 Poland emergence of ethno-​nationalism, 107 failure of transitional justice, 590–91 forced labor, 267–68, 269, 409–10 mass internment/​extermination of Jews, 263–64, 269, 331–32 Nazi forced labor camps, 85 Polish Minorities Treaty, 35 Political Instability Task Force. See United States (U.S.) State Failure Task Force politicide defined, 189n.6 term derivation, 97–98 Polity IV database, 192–93 Pol Pot, 36–37, 283–84, 621–22 population-​based surveys, 60 population project, Office of the Prosecutor (ICTY), 500–5 population projections, 498–99 population registers, 498

948   index positivist peace studies, 159–60 power dynamics of atrocities, 141–55 predicting/​early warning (EW) systems of genocides, politicides (geno/​politicides), 98, 101–2 field/​trend monitoring, 102 role of the U.S. State Failure Task Force, 103–9 Princeton Principles on Universal Jurisdiction, 678 PRIO. See Uppsala/​Peace Research Institute in Oslo (PRIO) procedural justice, 64–65, 589–90 propaganda early warning system’s focus on, 109, 218–19 “hypodermic needle” models of, 217 intercommunal atrocities in Indonesia, 217–18 Nazis against the Jews, 104–5 radio propaganda, 217 related extremist aims and sentiments, 211–12 role in social death, 79 social closure/​fear mongering, 150 use by dictatorial regimes, 202–3 use in creating violence, 151 war propaganda, 148–49 proxy warfare, 36   Qualitative Comparative Analysis (QCA), 216 quasi-​Marxist revolution, 100–1 Querido, C. M., 174   racketeering, 78 radicalization toward atrocity crimes, 223–25 Radio Free Europe/​Radio Liberty, 427 Radio Télévision Libre des Mille Collines radio station (RTLM), 217, 334–35 rainforests, degradation of, 162 randomized controlled trials (RCTs), 53 double-​blind RCTs, 53 rank-​and-​file perpetrators, 83, 212, 213–14 rape. See also sexual violence adoption as organization policy, 650 Akayesu judgment of the Rwandan tribunal, 41 by American soldiers, Vietnam War, 652 as an act of genocide, 41

as an instrumental of ethnic cleansing, 432n.12 authorizing vs. ordering of combatants, 655 categorizing issues, 40 conditions as a practice to be frequent, 653–54 corporate involvement data, 402t criminalization as atrocity crime, 40–42 customary legal definition, 40 in El Salvador, 651 in Ethiopia, 858–59 Fourth Geneva Convention on, 40 gang rape, 653, 654 gray zone between practice and policy, 655–56 Hutu militia’s intentional transmission of HIV, 41 of Jewish women, during the Holocaust, 767 in Liberia, 60 ongoing issues of, 650 Physicians for Human Rights rape victimization study, 60 as a practice of war, 652–53 reasons combatants participate, 653–54 Resolution 1820, UN Security Council, 41 Rome Statute outlawing of, 123–24 by soldiers of Democratic Republic of the Congo, 653 toleration by military commanders, 650–51, 652, 654 use as a “strategy,” 650 victimization study, Sierra Leone, 60 redress and reparation movements (RRMs), 725–26, 725n.3, 735 Refugee Convention (1951), 535–36, 541–42 refugees. See forced migration (forced displacement) Regan, P. M., 194 Reich Main Security Office (Reichssicherheitshauptamt), Germany, 269n.36 relative deprivation theory, 107–8 reparations and apologies, 725–48 bureaucratic processes in obtaining, 740 conceiving reparations, 735–36 debates regarding colonialism and Native Americans, First Nations of Canada, Australian Aboriginals, colonialism in African and Caribbean nations, 739–40

index   949 debates regarding slavery, segregation, trans-​Atlantic slave trade, 739–40, 739n.60, 744 duplication of structural injustices within society, 740 filing of claims by heirs, 738 identifying victims of atrocities, 736–38 interlinking or reparations and apologies, 744–46 for Japanese American internments, World War II, 737–38 Latin American countries, 734 limited actual payments for reparations, 740 Luxembourg Agreement, 729–30, 732 memorials as a form of, 759 for Nazi atrocities of World War II, 729–32 proliferation of redress and reparation, 732–35 quantifying reparation, restitution, compensation, 741–43 redress and reparation movements, 725–26, 725n.3, 735 Reparations Agreement between Israel and West Germany, 729 role of apologies, 743–46 War Relocation Authority (WRA) Camps reparations, 737–38 repression categories of actors, 256 by dictatorial regimes, 187, 189, 190–91, 193–97, 199, 200–1 genocide and, 105–6 Soviet Union’s collapse and, 36–37 structural violence and, 146–47 research methods. See also criminological domains of study in blended experimental, natural settings, 65 capture-​recapture method, 55–56, 59–60 confounding factors, 61 controlled trials/​placebo group, 53 criminological domains of study, 51–52 design standards, 53 economic studies of costs of conflicts, 68–69 indirect questioning methods, 55, 55n.3 methodological hurdles, 53 methodological particularities, 53–56

micro-​/​meso-​/​macro-​level explanatory factors, 61 multiple systems estimation, 59–60, 488, 499, 505 network scale-​up methods, 55n.3 observational/​causal inference method, 56 regression analysis, 64–65 retrospective research risks, 61 study of intergenerational transmission of trauma, 52–53, 68 unmatched count technique, 55n.3 vignette studies, 64–65 Responsibility to Protect (R2P) doctrine consideration as a social convention, 451 description/​overview, 15, 441–47, 452–53 as a “moral imperative,” 446–47 non-​state armed groups and, 454 scope of international responsibility, 446–51 shared expectations of, 446 term derivation, 442 three pillars of, 237, 441–42 transformation from concept to reality, 445–46 usefulness in forced displacement situations, 549–50 retributive justice, 64–65, 676, 703–4 retrospective research, 61 revolutionary ideology, 209 Revolutionary United Front (RUF), 431 right to life, 120, 122, 126–28, 131, 135 Rio Negro Massacres (1982), Guatemala, 488 risk assessment description, 102 vs. early warning capabilities pabilities, 109–11 of genocide/​politicide, 101–2 role of U.S. State Failure Task Force, 10 systemic-​driven findings, 110 risk factors for atrocities dictatorial regimes, 187–88, 197 distancing, othering, objectification of victims, unthinking obedience by perpetrators, 221 human rights violations, 119 preconditions for violence, 197, 199 ruling elites and, 216 social, political, economic (structural), 163, 569–70 types of, 119

950   index Rohingya genocide in Myanmar, 121n.24, 130–31, 134n.91 role-​shifting in atrocities, 329–47 Rome Statute of the International Criminal Court, 2, 2n.3, 3, 5–6, 16, 28, 35–36, 88– 89, 123–24, 143–44, 329n.1, 393, 483–84, 518, 519–22, 523, 525–26, 528, 625, 649, 658n.19, 886 RPF. See Rwandan Patriotic Front RTLM. See Radio Télévision Libre des Mille Collines radio station Russia enforced disappearances, 261 veto of Security Council resolution referring the Syria situation to the ICC, 916n.45 Rwandan Patriotic Front (RPF), 334, 375, 430 Rwanda/​Rwandan Genocide. See also International Criminal Tribunal for Rwanda assassination of Habyarimana, 334–35 commemorative events, 764 complicity of French bank BNP Pasibas, 394 death toll data, 131, 491 description/​details, 80–81, 245–47, 308–9, 330–31, 334–35, 428–29, 431 establishment of truth commissions, 683–84 exhumation of mass graves, 497–98 Gacaca courts, 79–80, 294n.22, 330n.2, 343, 343n.18, 344, 345, 596–97, 705 “génocidaire” defined, 331n.5 governmental campaign to promote recognition of genocide against the Tutsi, 330–31n.4 group-​making through violence/​fear of violence, 149–50 guilty perpetrator archetype, 343–46 heroic combatant archetype, 340–43 Hutu dehumanization of Tutsi ethnic group, 104–5 Hutu murders of Tutsi ethnic group, 80–81 incentives for Hutu violence, 164 indigenous dispute resolution, 633n.52 innocent victim/​survivor archetype, 337–40 legal vs. political solutions, 36–37

leveling of churches in, 75 meso-​level dynamics, 245–47 miscategorization of atrocities in, 144 National Republican Movement for Democracy and Development, 334 Nyange church masssacre, 80–81 radio propaganda, 217 resource scarcity and, 164 RTLM’s blame of RPF, 334–35 social/​political polarization and, 165–66 state-​level coordination of, 425, 426 United Nations Assistance Mission in Rwanda, 110, 334–35 U.S. failure to prevent/​react to, 98, 103 use of sports stadiums for detention, 430–31

  Sagan, S. D., 222 Sahnoun, Mohammed, 442 Saudi Arabia, 107 Schindler, Oskar, 308 SCSL. See Special Court for Sierra Leone secular nationalism, 107 Selassie, Haile, 858–59 Self-​Defense Forces of Córdoba and Urabá (ACCU) (Colombia), 807 self-​report surveys, 54 Senegal, 216–17, 617 September 11, 2001 attack (9/​11), 148 Serbia, 429, 497–98 sexual slavery, 382–83, 402t, 650, 651, 652, 655, 664, 668–69, 889, 890, 907, 909, 914 sexual violence, 649–71. See also rape; sexual slavery; sexual violence, implications for investigation, prosecution accountability options, 669–70 in Angola, 779–80, 783, 794 boundary issues, 40–42 challenges in collecting data, 60 characterizing (charging), 663–65 in Colombia, 811 during conflicts, social science findings, 651–56 corporate involvement data, 402t enforced prostitution, 664 enforced sterilization, 402t, 664 forced abortion, 664 forced nudity, 650, 652

index   951 implications for investigation, prosecution, 656–70 “opportunistic” sexual violence, 656n.9 Physicians for Human Rights rape victimization study, 60 as a policy vs. practice, 654–56 as a “practice” and gender analysis, 659–60 as a practice and investigations, 660–62 as practice and prosecution, 663–69 Rome Statute outlawing of, 123–24 sexual slavery, 382–83, 402t, 650, 651, 652, 655, 664, 668–69, 889, 890, 907, 909, 914 UN recognition of, 587–88 wartime sexual violence vs. conflict-​related sexual violence, 650n.5 sexual violence, implications for investigation, prosecution, 656–70 accountability options, 669–70 aiding and abetting, 667–68 choice of defendants, modes of liability, 665–66 command/​superior responsibility, 666–67 evidence and proof of sexual crimes, 661–62 general investigative approach, 661 joint criminal enterprise III and common purpose, 650–69 Shia Muslims, 107–8, 145, 152 Sierra Leone atrocities/​conflicts in, 256 DDR program for child soldiers, 359–60 degradation of rainforests in, 162 experimental study, 65 mass violence in, 424 rape victimization study, 60 Revolutionary United Front (RUF), rebel group, 431 transitional justice processes, 596–97 Sierra Leone Truth and Reconciliation Commission, 431 Sinaloa Cartel (Mexican drug cartel), 375–76 Sinjār, northern Iraq. See Iraq, Êzidîs (Yazidis) genocide societal upheavals, 16, 60, 69, 100. See also armed conflicts Somalia crimes of al-​Shabaab, 452 emphasis on R2P doctrine, 445, 452–53

use of child soldiers, 354–55 war with Ethiopia, 862 South Africa Apartheid regime, 107, 256, 265, 395–96, 399–400, 403, 417, 603 corporate crimes in, 395–96 genocide museum, 762 granting of amnesties, 593 meso-​level dynamics, 237–38 police massacres in, 237–38, 258–59, 260– 61, 267 South Africa Truth and Reconciliation Commission (TRC), 584, 587, 593, 603, 676, 683–84, 685, 687–88 Southeast Asia, 704, 831, 864 Southern Sudan, 100, 354–55, 452–53 South Pacific, 704 Soviet Union Collectivization, 244–45 crimes against identity groups, 210–11 deaths from famines, 465, 485 impact of collapse of, 36–37 mass murders, 586 Stalin’s mass detentions, 262 Stalin’s purges, 264 systematic repression, 224, 586 Treaty of Moscow, 539–40 Treaty of Moscow (1921), 539–40 Spain, 34n.15, 617 Special Court for Sierra Leone (SCSL), 36–37, 619n.6 on forced marriage, 40 view on amnesty, 679 Special Panels, East Timor, 619n.6 Special Representative to the Secretary General for Children and Armed Conflict, 353 Speer, Albert, 284, 287–88 Srebrenica massacre, 39, 134n.91, 135, 441, 484, 497, 501–4, 504t, 628–29, 659–60 Sri Lanka enforced disappearances, 261 group-​making through violence/​fear of violence, 149–50 miscategorization of atrocities in, 144 request for UN intervention, 148–49 Tamil Tigers suicide bomb attack, 373 use of child solders, 356

952   index SS (Schutzstaffel) (Germany), 76–77, 79, 86, 256, 260, 263–64, 265, 269n.36, 272–73 Stalin, Josef, 34, 103–4, 189, 283–84, 433–34 Stangl, Franz, 284 states/​state actors, role in atrocity crimes, 423–36. See also non-​state actors (NSAs) collaboration with corporations, 397, 405, 413–14, 416–17 control of media outlets, 432 coordination of communication acitivies, 426 coordination of crimes, 425–27 dual state actors, 375 ideology/​goals of atrocity violence, 424–34 materiel requirements, 427–28, 429–31 parallel state (para-​state) actors, 375 pro-​state actors, 375 quasi-​state groups, 434–35 role in genocide, 423–24, 425 role of human capital, 427–29 state-​level limitation of access to files, 426–27 state vs. non-​state actors, 237 types of interactions with non-​state actors, 376 violations of human rights, 195n.22 structural violence, 146–48, 565–66n.18, 571, 602–3 sub-​Saharan Africa, 161–62, 707, 779, 794 Sudan genocide. See Darfur, Sudan genocide Sunni Muslims, 107–8, 145, 152 supranational criminology, 7–8, 285–86, 461, 795 supranational victimology, 15–16, 461 surveys by criminologists, 54 household surveys, 59 indirect questioning methods, 55, 55n.3 International Crime Victim Survey, 54n.1 International Self-​Report on Delinquency survey, 54n.2 issues with, 55 population-​based, 60 self-​report, 54 use in etiology domain research, 60–61 victim surveys, 54–55, 57, 60 survivor bias, 59 symbolic violence, 147, 565–66n.18

Syria. See also Islamic State of Iraq and Syria aerial bombardments in, 899–900 climate change-​caused drought, 515 death, displaced people, refugee data, 2 documented human rights violations, 57 effort to bring perpetrators to justice, 626–27 enforced disappearances, 261 granting of conditional amnesties, 678 human rights violations in, 57 influence of secular nationalism, 107 internally displaced persons data, 810–11 linking of violence to water scarcity, 164–65 multi-​ethnicities/​religions, 107–8 R2P doctrine in, 449–50 victim databases, 495   Tadić, Duško, 82–83 Tamil Tigers, 373 Tanzania, 100–1, 164–65 targeting of the “Other,” 78–80 Task Force of the European Union Prevention of Mass Atrocities, 255–56 Thailand, use of child solders, 356 Tijuana, Mexican drug cartel, 379 Timbuktu, Mali, 75 Timor-​Leste community violence in, 565 enforced disappearances, 261 granting of amnesties, 689–90 Indonesia-​Timor-​Leste Commission on Truth and Friendship, 690–91 shift to restorative justice, 596–97 transitional justice, 596–97 truth and reconciliation commissions, 498, 684, 687 Tokyo Tribunal, 596, 617 torture at Abu Ghraib, by the U.S., 190, 427–28 in Angola, 776n.3, 779–80 by atrocious organizations, 262–63, 271 in Bosnia and Herzegovina, 38, 39, 265–66, 269–70 in Burundi, 694 in Cambodia, 251, 264, 434, 663–64 by children/​of children, 357, 362 in Chile, 84, 765 in Colombia, 809–10, 812

index   953 corporate involvement data, 402t, 403, 403t, 406, 417 direct/​indirect violence and, 258–59 in El Salvador, 651 enforced disappearance and, 123 in Ethiopia, 853–54, 860, 862–63, 865, 867, 870 in the former Yugoslavia, 649 by the Gestapo, 464–65 goals of, 431–32 Greek torture school, 289–90, 292–93 in Guatemala, 259, 880–81, 882, 886, 889, 893 impact of domestic prosecution on, 273 implication of state agencies, 257–58 inclusion in amnesties, 680–81 in Indonesia, 260–61, 264, 831, 836–37, 838, 841–42, 846 Inter-​American Convention to Prevent and Punish Torture, 271–72 interrogation under torture, 264 in Latin America, 260–61, 262–63, 264, 272 in Nazi Germany, 104–5 Nelson Mandela rules on, 271–72 in Northern Ireland, 378–79 in Peru, 741–42 rape as a form of, 600–1n.53 in Rwanda, 259, 649 in South Africa, 260–61 in Srebrenica, 767 UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 117–18, 122, 271–72, 679–80, 862 use by meso-​level actors, 251–52 by Zetas drug cartel, 379–81 totalitarianism/​totalitarian regimes. See also Holocaust; Nazis/​Nazi Germany; repression emergence of, 192 extraordinary motives/​aims of, 221 jihadist groups and, 213 repression policies, 316–17 role in promoting atrocity crimes, 209, 211–12, 214, 221 transitional justice, 581–606 amnesties and, 593 in Bulgaria, 89–90

“check box approach “ and, 598–600 child soldier phenomenon and, 588 Colombia program (2016), 20 criminal justice and, 591–96 customary justice and, 706–7 debates, 589–91 delegitimation process, 272–73 description, 7, 17, 586 doubts about criminal punishment, 596 emergence as a concept, 582–84 feminist perspectives on, 600–1 gender and, 600–2 granting of amnesties, 593–94 growing scope of, 17 historical records of, 272 individuals as bystanders and, 323 in Latin America, 395–96 memory/​memorialization and, 759–60 normative framework/​pre-​20th century developments, 584–86 resistance strategies of atrocious organizations, 271, 273 role of bystanders in, 323, 324 roots of, 582–88 in Rwanda, 343n.18, 594 “show trials,” 31, 189, 595–96 socioeconomic rights and equality and, 602–4 21st century challenges, 588–605 20th century developments, 586–88 types of, 132–33 UN Secretary-​General’s Report on the RUle of Law and Transitional Justice, 598 victims and, 596–97 “victor’s justice,” 595 Transitional Justice Database, 682–83 truth (and reconciliation) commissions (TRCs, TCs), 679–84 amnesties and, 18, 66, 677–78, 684–85 Argentina, 587 as backbone of transitions to peace, 675 in Burundi, 694 Canada, 760 in Chile, 2003, 272–73 Colombia, 498, 694 complexity of, 66 in Democratic Republic of the Congo, 693 global establishment of, 683–84

954   index truth (and reconciliation) commissions (TRCs, TCs) (cont.) in Grenada, 688–89 Guatemala, 498 Hayner’s four essential features of, 683 in Kenya, 692 Korea, 692–93 Latin America, 498 in Liberia, 691 mortality estimates, methods and data sources, 498 in Nepal, 693–94 Peru, 498, 741–42 reliance on statements of victims, 678 in Republic of Korea, 692–93 Sierra Leone, 431 South Africa, 584, 587, 593, 603, 676, 683– 84, 685, 687–88 in Timor-​Leste, 689–90 use of, in the Global South, 683 Turkey extreme secular nationalism in, 107 refusal to engage with victims, 727n.9 use of child soldiers, 356 Tutsi ethnic group. See Rwanda/​Rwandan Genocide Tutu, Desmond, 584 typologies of how geno/​politicides occur, 100–1 genocides of conquest, 101 national upheaval concept, 100 post-​colonial genocides, 100 post-​coup and post-​revolutionary genocides, 100–1 post-​war-​post-​imperial genocides, 100 tyrants/​tyranny, 192   UDHR. See Universal Declaration of Human Rights Uganda. See also Lord’s Resistance Army atrocities/​conflicts in, 256 customary justice practices, 706, 710–12 deaths caused by Amin, 100–1 1971 coup, 100–1 “Operation Lightning Thunder,” 383 peace talks with Lord’s Resistance Army, 709 transitional justice tribunals in, 596–97

Ukraine exhumation of mass graves, 497–98 use of child soldiers, 356 Ulster Defence Association (UDA), 377–78 Ulster Volunteer Force (UVF), 377–78 UNESCO. See United Nations Educational, Scientific and Cultural Organization União Nacional para a Independência total de Angola (UNITA), 777–81, 782–83, 784–85, 789, 790–92, 794, 796 Unión Camilista-​Ejército de Liberación Nacional, 355–56 Union Nations Mission in South Sudan (UNMISS), 452–53 United Kingdom (UK), use of child soldiers, 356 United Nations Charter, 35–36, 448, 449, 450–51 United Nations Security Council, 41, 395–96, 441, 443–44, 445, 450, 625, 650 United Nations (UN) Accountability for Atrocity Prevention report, 447–48 Assistance Mission in Rwanda (UNAMIR), 110, 334–35 Atrocity Crimes Framework, 3, 6, 255–56, 683–84 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 733–34 Commission of Experts Pursuant to Security Resolution 780 (1992), 143–44 Commission on Human Rights, 678 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 117–18, 122, 271–72, 679–80, 862 Convention on the Prevention and Punishment of the Crime of Genocide (UNGC), 332–33, 855–56 Convention on the Rights of the Child (Article 38) (CRC), 352, 353, 357 Department of Peacekeeping Operations, 353 Educational, Scientific and Cultural Organization (UNESCO), 66–67, 123, 512n.2, 792 Environment Programme (UNEP), 511, 515

index   955 General Assembly, 32–33, 118–19, 129, 131, 132, 443, 447, 547, 621–22, 626–27, 733–34, 916–17 Genocide Convention (1948), 4 Guiding Principles on Internal Displacement, 536–37 High Commissioner for Human Rights, 659 High Commissioner for Refugees (UNHCR), 536, 541, 547 Human Rights Council, 273–74, 443 human rights system, 118 International Children’s Emergency Fund (UNICEF), 353 International Law Commission (ILC), 133–34, 525, 526 Multidimensional Integrated Stabilization Mission (MINUSMA), 445, 452–53 Office for the Coordination of Humanitarian Affairs, 110 Operation in Côte d’Ivoire (UNOCI), 444 Secretary-​General’s Report on the RUle of Law and Transitional Justice, 598 Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, 124–25 Special Rapporteurs of the Human Rights Council, 118, 131 stance on amnesties, 678 Sub-​Commission on Prevention of Discrimination and Protection of Minorities, 524–25 Updated Set of Principles to Combat Impunity, 678 Working Group on Enforced or Involuntary Disappearances, 261 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (aka Durban Racism Conference), 739 United States (U.S.), 98, 103, 106–7, 633n.51, 704, 733, 737, 761–62, 765–66 Agency for International Development (USAID), 66–67 Cold War struggles vs. Soviet Union, 765 customary justice practices, 704 failure to prevent/​react to Bosnian genocide, 103 failure to prevent/​react to Rwandan genocide, 98, 103

failure to prevent/​react to Sudan genocide, 103 Holocaust Memorial Museum, 385–86 human rights movement, 765–66 imposition of death sentence for murders, 106–7 internment of Japanese Americans during World War II, 733 National Electronic Injury Surveillance System (NEISS), 55n.5 National Memorial for Peace and Justice, 761–62 Navajo courts, 704 opposition to ICC’s investigations, 633n.51 payment of reparations to Japan for internment of Japanese Americans during World War II, 737 United States (U.S.) State Failure Task Force (aka Political Instability Task Force), 98 causal analysis, 106–8 data generation, 103 demographic and societal variables, 109 early warning (EW) genocide models, 105–9 ethnic and religious stratification, 107–8 ethnic discrimination variable, 108 exclusionary ideology, 106–7 international dimensions variable, 109 legal vs. operational definition, 104–5 low trade openness, 108 origins/​establishment of, 98, 103 political and leadership variables, 108 political upheaval, 106 prior geno-​/​politicide, 108 risk assessment role/​predicting political instabilities, 10, 98, 102, 103, 105, 106 risk assessment vs. early warning capabilities, 109–11 state characteristics-​regime types, 106 success factors, 98 systematizing of information, 103–4 Universal Declaration of Human Rights (UDHR), 765 origin of, 129 protection of cultural rights, 123 right to a fair trial, 123 right to life, 120, 122 role in human rights, 584

956   index Universal Periodic Review (UPR) report (HRC), 118–19, 130 Uppsala Conflict Data Program, 190, 373 Uppsala/​Peace Research Institute in Oslo (PRIO), 484 UPR. See Universal Periodic Review Uruguay, 525, 587, 680–81 “utilitarian” mass killings, 174   Versailles Treaty, 585 victimology of atrocity crimes, 461–78 challenges/​newness as a field of research, 66, 461–63 defined, 461 research studies on, 66 role of the international community, 91 victims/​victimization. See also ontological assault; victimology of atrocity crimes as an ontological assault, 15–16, 462–63, 464, 465, 467, 469–76 borders between victims and victimizers, 81–82 bystanders and, 306 of children/​child soldiers, 357, 358 civilian victimization, 387, 388 description, 52–53, 483 existential shame of victims, 465 of girl child soldiers, 362 impact on the victims, 464–67 indirect questioning of victims, 69 meso-​level actions leading to, 238–39 political victimization, 332 powerlessness of victims, 306 racist/​dehumanized conceptions of, 211–12 rape/​sexual victimization, 60 revictimization, 52–53 self-​report surveys of victims, 55 shameful feelings, 464, 470 transitional justice and, 596–97 victims as victimizers, 81–82, 202 victim surveys, 54–55, 57, 60 Vietnam/​Vietnam War defeat of Khmer Rouge, 100–1 limited violence in, 164–65 My Lai massacre (1968), 106–7, 214, 222 rapes by American soldiers, 652 vignette studies, 64–65

violence complexities of defining, 188n.3 crimes against humanity and, 5, 39, 44, 145–46 described/​defined, 145–47, 148, 168–69 discrimination-​based violence, 88 entrepreneurs of violence, 149–50 against indigenous groups, 237–38 intentional/​purposeful violence, 145–46 natural resource abundance and, 167–69 organization by meso-​level actors, 238–39 overlapping fields of study, 159–60 plural society and history of, 201–3 post-​election violence, 62 profitability of, 170 role of alliances, 151–53 scarcity-​centered theories on causes, 167–68 structural violence, 146–48, 565–66n.18, 571, 602–3 symbolic violence, 147, 565–66n.18 those deemed most responsible (TMR), 424–25 violence as performance, 148–49   war crimes. See also Angola; child soldiers; My Lai massacre, Vietnam (1968) in Angola, 775–96 causes of, 213 in Colombia, 555–847 corporate involvement, 401 defined/​described, 5–6, 88–89, 122, 213–14, 341–42 determination of boundaries in trials, 38 distinction from crimes against humanity, 34–35, 88–89 distinction from genocide, 88–89 distinction from genocide/​crimes against humanity, 88–89 the environment and, 521–22 in Ethiopia, 854–57, 859, 864–65, 866, 867, 869–70, 872 group boundaries across criminal categories, 38–39 in Guatemala, 881, 892, 895 historical development of, 28–31 human rights and, 124–28 IHL’s outlawing of, 124

index   957 military as key perpetrators of, 427–28 My Lai massacre, Vietnam, 106–7, 214 by non-​state actors (NSAs), 221, 377 role of NSAs in committing, 377 Rome Statute, Arrticle 8 definition, 28 by Russia, against Muslims, 216–17 shared features with crimes against humanity, 35 socio-​legal terminology for, 28 war crimes commission, 864–65 War Relocation Authority (WRA) Camps (U.S.), 737–38 war vs. peace dicthotomies, 147 Wiesel, Eli, 287–88, 758 World Peace Foundation (WPF), 781 World Summit (2005), 15 World Summit Outcome Document, 449, 451 World War I, 30 World War II, 6, 14, 27, 30–31, 34–35, 37, 103–4, 192, 219–20, 260, 282, 399–401, 493, 516, 649, 652, 729. See also Holocaust; Nazis/​ Nazi Germany   Yakuza, organized crime group, 375 Yazidis, 107 Yehuda, R., 562–63

Yekatom, Alfred, 546 Yemen, use of child solders, 356 Yugoslavia (former Yugoslavia). See also International Criminal Tribunal for the former Yugoslavia (ICTY) atrocities/​conflicts in, 256 ethnic cleansing (etnicko ciscenje), 6 exhumation of mass graves, 497–98 group-​making through violence/​fear of violence, 149–50 role of Serbian military in violence against civilians, 429 tribunals (1990s), 35 Yugoslav People’s Army, 6   Zalaquett, Jose, 582–83 Zetas, Mexican drug cartel, 14, 379–81 comparison to Sinaloa Cartel, 375–76 deaths from drug wars, 379 gladiator fights to the death, 379–80 hijacking of buses, massacring passengers, 373 massacres, abductions, videotaped tortures, 379–80 reasons for committing atrocity crimes, 380–81 Zimbabwe, 261, 315–16