International law is embedded in political hierarchies, including colonial remnants. Therefore, moral narratives, the United Nations’ (“UN”) operation, and historical memory are highly politicized – including in the contexts of genocide. This piece seeks to address these political hierarchies with reference to both past and present genocides. It will do so with an emphasis on the 1994 Tutsi genocide in Rwanda and the ongoing genocide of Uyghur Muslims in Xinjiang – thirty years apart. In respect of genocides, General Romeo Dallaire in his 2014 address continually affirmed UN military intervention against genocide as crucial, calling for greater political consensus amongst member States (see here at 9:55, 13:57 and 17:44). After providing a brief contextual background to these genocides and highlighting certain crucial observations from Dallaire’s address, this piece focuses both on the legal and political factors surrounding military interventions.
To begin with, consider the legacies of Belgium’s (and before that, Germany’s) constructions of the Hutu and Tutsi’s ethnic animosity in its colonial campaign, which contributed to the eventual genocide of the Tutsi in Rwanda. Despite referencing this colonial history in setting a factual background, the Akayesu Trial Chamber (1998) was cautious not to make any such bold remarks or characterizations against the colonial powers (¶¶83-85).
Closer to now, a group of 43 states have condemned the situation of Uyghur Muslims in China. Though the language their statement adopts is of mere “human rights violations”, there is now strong evidence that China’s measures constitute genocide (see here and here) – a position that several states have endorsed (see here, here, and here). What is alarming is the response of another group of 62 states, defending China’s actions with reference to the rule of non-intervention in another State’s internal affairs. Needless to add, the possibility of a Security Council (“UNSC”) intervention against China is precluded by China’s veto power.
In the context of the Rwandan genocide, one becomes struck by Dallaire’s 2014 address, where he lamented the UN’s withdrawal from Rwanda when the Tutsi genocide began to materialize (after Belgium, i.e., the colonial power’s pull-back). Dallaire’s provocation (at 9:13) that “human” lives in Africa counted less than others is confirmed by bureaucratic accounts. Barnett recalls (p. 560) rationalizing the lives of peacekeeping corps as more valuable than the slaughtered Tutsi. Such rationalizations remain true even today, considering the little attention received by most contemporary genocides outside Western focus. Nevertheless, as Dallaire underscores with immense shame and guilt (at 10:39), there is no “god” except the symbolism of the UN to persons while they are facing genocide.
The UN and Non-Intervention
The UN cannot intervene in matters “essentially” under States’ domestic jurisdiction, following Article 2(7) of its Charter. However, the same clause provides that this prohibition does not prejudice the UNSC’s “enforcement” measures under Chapter VII. This Chapter is critical as it governs the permitted circumstances and modalities of UN military interventions.
Regardless of this Chapter VII exception, genocides hardly fall under States’ domestic jurisdictions exclusively. The scope of what is considered a valid ground for intervention varies with the contemporaneous development of international law (Nolte, p. 291). Article VIII of the Genocide Convention, 1948 empowers all State parties to request the UN to take preventive or suppressive measures. In fact, genocides concern the international community as a whole because the genocide prohibition forms “jus cogens”, making it one of the highest norms of the international order (Bosnian Genocide case, 2007 at ¶161).
In 1915, Morgenthau regretted his role as the United States Ambassador to the Ottoman Empire during the Armenian genocide, since he considered himself and his nation powerless due to the non-intervention rule as it applied then (Toufayan, p. 213). Considering the aforementioned evolution of international law towards prohibiting genocides, legal hesitations such as Morgenthau’s would have had no basis during the Tutsi genocide in Rwanda in 1994.
In fact, the UNSC’s resolutions have in practice invoked Chapter VII of the Charter in relation to situations that quickly developed into genocides. This includes both the Bosnian Serb forces’ engagement in what was then ethnic cleansing against the Bosnian Srebrenican Muslims (see Res. 713, 819 and 827) and the Rwandan genocide as it transpired (Res. 918). Hence, genocides very well constitute a “threat” to “international peace and security” in terms of Article 39 of the Charter.
As a result, nothing legally constrains the UN from militarily intervening to prevent or halt genocide – and certainly not against the ongoing genocide of Uyghur Muslims in Xinjiang, contrary to what the above 62 states have insinuated. Their stance is perhaps strategically explained by the fact that their statement did not characterize the situation as a ‘genocide’.
The UN’s Unfortunate Realities
Despite the lack of any legal constraints concerning intervention, we know that over lakhs of people were massacred in the Rwandan genocide and thousands in Bosnian Srebrenica while the UN stood by idly. This continued inaction was in the face of prolonged signs and warnings of impending genocide. In Rwanda, although invoking Chapter VII, the UNSC’s measures were visibly minor, extending to an arms embargo or limited force at best (Res. 918, and 929). General Dallaire answers this dilemma himself (at 11:21): States were reluctant to commit their own troops for African victims in strategically unsound territories. More recently, as mentioned earlier, China’s veto has precluded UNSC measures to protect the Uyghur Muslims.
Given all these disheartening instances of UN inaction, some have accordingly argued that the UN is a futile site for resisting genocide and that new Conventions governing interventions against genocide are crucial. This, however, dodges the real issue. To start with, there is merit in lamenting the UN’s oft institutional hollowness. As Barnett notes (p. 561), the UN’s above unimpactful resolutions, statements, and eventual withdrawals aimed mainly to “save-face” in reputational terms. There is a chilling institutional silence today from the UN and its Secretary-General in the face of the genocide of the Rohingya Muslims in Myanmar and of the Uyghur Muslims (among others), with no intention of invoking Chapter VII. The Human Rights Council’s reaction has also been unsatisfactory in the Uyghur Muslims’ context, with no acknowledgement of genocide. Nevertheless, as Robertson argues (p. 34), the problem is not the absence of legal regimes that could enable collective action against genocide, but rather the deficiency of political will – which may not change with new treaty frameworks. Thus, such a solution is a red herring, and quixotic even for international law’s standards when the UN’s existing aspirations remain disconnected from realities.
While the UN’s eventual interventions at times contributed to halting certain genocides, these measures were far too late for most victims. Its constitutions of criminal tribunals in Rwanda and the former Yugoslavia had immense value for criminal justice and memory building. However, with Mladic’s conviction for genocide from 1995 being confirmed only now in June 2021, that too with the massacres having been led in an UN-designated “safe zone”, scepticism of international law’s assurances is natural. This is equally true for the Khmer Rouge trials, where the first conviction concluded in 2018 for genocide from 1975-1979. It is a shame that one can draw parallels of international inaction between genocides prior to and post the emergence of the UN Charter.
Continuing to Reimagine the UN
This brings me back to this article’s initial problematization: regardless of its “jus cogens” status, and despite growing discourse around the “responsibility to protect” (“R2P”), preventing genocide is not on the international order’s priority-list, let alone for protecting marginalized groups such as the Rohingya or Uyghur Muslims. This is also evident as Russia and China’s veto powers at the UNSC have assured Myanmar’s impunity. In any case, as many now have documented, R2P has itself been abused by the Global North for self-interested strategic ends, rather than humanitarian considerations. Third world scholars have rightly, and very early on, problematised the Global North’s claims of advancing “democracy” through force as reminiscent of colonial empires’ ‘civilising mission’ (see Robertson at p. 45). This is demonstrated by the recent dialogue surrounding the United States’ withdrawal from Afghanistan, and indeed previous discourse concerning the suspect military interventions in Syria and Libya. All this once again evidences the many institutional hierarchies of the UN and international law, which certainly inform who’s “more human” than others (Dallaire at 9:12).
Despite this, I am unable to discredit Karin Mickelson’s message that hope in the face of such international tragedies is crucial, in that it would be absurd to “throw our hands up in despair.” The points to follow here have been spoken of so often that they may be hackneyed – yet they merit reiteration and continued deliberation. Dallaire’s call for greater international political will in militarily acting against genocide is indispensable. Such political consensus, however, must be consciously inclusive to not exclude already marginalized voices, such as the Global South. As the aforementioned contradictions of R2P demonstrate, the meaningful participation of all States is crucial to addressing genocide, especially since much of the international order’s inactions derive from existing power dynamics (Kiyani, 255).
In the same vein, to fully understand and respond to genocides, colonial legacies akin to Germany and Belgium’s in Rwanda require express articulation. This would enable a better understanding of genocides as historical processes, rather than sudden events. These conscious efforts may enable nuanced preventive actions, instead of delayed military reactions. The very first step in such conversations is recognizing the legal fact of genocide, for which recent statements regarding the Uyghur Muslim genocide are encouraging, but inadequate. This is not only considering the legal obligations that recognition would trigger in responding to prevent and punish genocides, but also the moral and political weight that such affirmations carry for survivors. Legally recognizing a genocide also allows for the realization and reclamation of truthful historical narratives. This by itself would be an act of displacing the hierarchies of international law through memory-building that is unhinged by power dynamics – bringing some symbolic semblance of justice to victims of genocide.
Abhijeet Shrivastava is the Editor-in-Chief of the Jindal Forum for International and Economic Laws. He is currently pursuing his B.A., LL.B. (Hons.) at Jindal Global Law School.
Image: Roméo Dallaire, 2017 (Wikimedia), modified.