Tag: genocide

Intervention to Punish? Or to Protect?

stopsyriaTwo kinds of military intervention are being discussed and conflated by political elites (like Nicholas Kristof) and international diplomats. The first is an enforcement operation to punish a state for violating a widespread and nearly universal global prohibition norm against the use of chemical weapons. This is what Kristof refers to in the title of his Times op-ed, “Reinforce a Norm in Syria.”  The second is a humanitarian operation to protect civilians against a predatory government. This is what Kristof means when he compares proposed military strikes in Syria to intervention that happened in Bosnia and Kosovo and (tragically) didn’t happen in Rwanda.

Well, it’s useful to clarify which we are talking about since both kinds of operation involve very different tactics and different kinds of legal and moral reasoning. I discuss both at Foreign Affairs this morning:

[If punishing norm violators is the goal], the appropriate course of action would be to, first, independently verify who violated it…. Second, the United States would have to consider a range of policy options for affirming, condemning, and lawfully punishing the perpetrator before resorting to force, particularly unlawful force… Third, should the United States decide on military action, with or without a UN Security Council resolution, it would need to adhere to international norms regulating the use of specific weapons in combat.

But such a strike should not be confused with military action to protect civilians.   Continue reading

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Blog Archeology: Guns Won’t Stop Genocide

Brad Delong calls this “hoisted from the archives,” which is clearly a better term for what I’m doing. But, as that’s taken and I’m not as smart as the great economics professor, I guess I’ll just have to stick with this alternative.


Guns and Genocide, version 96.12b

From 11 June 2005

After the 1989 massacre of pro-democracy advocates in Tiananmen Square by the People’s Liberation Army, the NRA ran advertisements claiming that if the protesters had been armed, they could’ve defended themselves and thus prevented the anti-democracy crackdown. This kind of argument, rooted in the (correct) conviction that the ultimate recourse against tyranny is armed insurrection, has a long history both in political theory and in gun-rights advocacy.

Continue reading

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President Obama on Genocide Prevention

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Mind the Impunity Gaps


This is the first of a series of posts on “impunity gaps” in justice for atrocities that constitute genocide, crimes against humanity or war crimes. There has been a resurgence of optimism for international and transitional justice because the ICC’s judicial intervention in Libya and recent high-profile arrests and trial completions at the ICTR and ICTY. But I would like to shed some light on impunity gaps that persist for and within high-profile cases and for low-profile cases beyond the International Criminal Court.

An impunity gap can manifest itself in several ways:

  • There are no genuine international or national justice measures and/or there is a blanket amnesty.
  • There are non-judicial and/or non-punitive accountability mechanisms, such as truth commissions or local traditional justice, but these are perceived by victim communities and/or the international community as disguised impunity.
  • There is an imbalance in justice. Either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. (I would refer to this as a gap in the breadth and depth or criminal responsibility respectively.)

Arguably, this doe not really narrow the universe of cases. Most countries that require justice for atrocities can, at best, achieve partial accountability because of a lack of capacity or political will. I will focus on impunity gaps that pose the greatest risk for a resurgence or entrenchment of violence and where political hypocrisy explains the gap.

Various factors can explain the irony that those “most responsible” for the “most serious crimes” are not held accountable. For example, is it pressure, or lack of it, from specific actors, such as the UN Security Council or transnational civil society, that determines whether massive crimes against civilians will be exposed and punished? Kenya, Sri Lanka, Colombia are excellent studies here. Does the sequencing of peace and justice matter, as some contend is a factor for Libya, Sudan, and Uganda? What of the nature of the conflict, whether civil war or genocide, and how the violence ends, whether through negotiation or the decisive defeat? Cambodia, Rwanda, and Burundi reveal interesting dynamics in these respects.

The purpose of these posts is not to throw a cynical wet blanket over what is undoubtedly institutional and moral progress in international justice, but rather to call critical attention to individual cases of impunity gaps and identify patterns across them.

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R2P, Louise Arbour and the Responsibility to Reality

She’s cool, but she’s wrong.

I have a short piece on the Responsibility to Protect (R2P) in the October 2010 Review of International Studies Special Supplement on “Evaluating Global Orders” (that came out last week? I don’t get journals). It’s basically a reply to Louise Arbour, former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) who argued in 2008 that R2P was becoming “a duty of care in international law and practice”.

For those of you who don’t have access to the journal (or just want a brief description) my argument is that Arbour’s line of reasoning is flawed.  Arbour rests her argument on the 1948 Genocide Convention and the 2007 Bosnian Genocide Case at the International Court of Justice. She suggests that because the Article 1 of the Convention states that states have a duty to prevent and punish genocide, and that Serbia and Montenegro were found to be in breach of this obligation, that stopping genocide/mass atrocity is becoming a legally enforceable norm.  Further, she argues that this does not only suggest that neighbouring states should intervene, but any state that has the ability to intervene (Psst: she’s looking at you, Western states!) is legally obliged to do so. (Clearly, I’m simplifying here. If you’re interested, read her article for the full argument.)

I found this argument problematic for a number of reasons – all well pre-Côte D’Ivoire and Libya. (I wrote this in March 2009, revised it in spring 2010.)

The first set of critiques has to do with Arbour’s reliance on the 1948 Genocide Convention and the decision in the 2007 Bosnian Genocide Case.

First, the decision in the Bosnian Genocide Case states that states are only obliged to intervene if genocide has actually occurred or there is a plausible risk of it occurring. Fair enough, but how do we know if/when genocide is happening or likely to happen? The ICC was unable to bring genocide charges against Sudanese President Omar al-Bashir on its first attempt because there wasn’t enough evidence that a genocide (which has a very particular legal definition requiring evidence of intent) was taking place. (The ICC prosecutor was successful in having these charges laid against Bashir on appeal.)

Secondly, the Court’s decision in the Bosnian Genocide Case was far more limited than what Arbour suggests in her article. The decision states that the Court did not “purport to establish a general jurisprudence applicable to all cases where a treaty instrument, or other binding legal norm, includes an obligation for States to prevent certain acts.” Yet this is exactly what Arbour is doing. She’s extrapolating from this case to make the case for a general obligation despite the fact that the Court was clear on where it put the limits of its judgement.

Thirdly, even if such a norm could be established, there is little guidance in either the ICJ’s decision or Arbour’s argument as to what “prevent” actually is. There is also no guidance as to who should make the determination that genocide is taking place (if states are to be held legally accountable, does it matter if there is international recognition at the emergence of a risk of a genocide occurring?) In fact, the only guidance offered in the Court’s decision is that something should be done “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” Not exactly a clear road map to action.

The second major set of critiques I have for Arbour relate to the fact that even if we could establish an obligation or “duty of care” in the international community, that this still doesn’t get to the “hard part” of R2P: actually getting states to do things. It is one thing to establish a law, principle or even a norm – it is quite another to change practices. If we have learned anything about international law in the last few decades, it is that its existence rarely delivers consensus.

In other words, even if everyone can agree that R2P as a legal obligation exists, this does not mean there will be agreement as to how it should be implemented. For example, should it be done through sanctions? Direct military intervention? Monitoring? There is no answer – and that is because these are the hard questions of R2P for which there is no easy answer. More importantly, these are the complicated issues which cannot be solved through law like Arbour seems to hope. Establishing an obligation does not help us to answer the much more difficult questions related to authorization and execution.

The third part of the article (somewhat rhetorically) suggests that we need to think about R2P with a “responsibility to reality”. In other words, while there can be no question that R2P is a revolution in the notion of ‘sovereignty’, translating this into a legally enforceable responsibility is, politically speaking, taking R2P to a whole new and probably unrealistic level. R2P ultimately comes down to a difficult political discussion between states. This means it is applied inconsistently, and where more powerful states believe there is an interest. Ultimately, as mentioned above, trying to solve this political problem with law is not going to work. Lawyers may want to remove themselves from the icky world of politics so that they may establish norms and principles from above, but the “reality” is that the future of R2P will not be decided at the ICJ, but in the closed door-meetings of NATO and the UN Security Council. At the very least, R2P’s future will not be decided through law, but the imperfect political international political institutions. Perhaps the best that international lawyers like Arbour can hope for is that R2P gives us the common language in which action may be debated and plans to help solve some of the world’s worst problems may be asserted. R2P may actually work – but it is difficult to imagine that it will work in such a way as to effectively trap states into obligations into which they have not given their consent.

Short version: Arbour is wrong, I’m right. HA!

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Friday Nerd Blogging

My partner had a different reaction than I did to Khal Drogo’s war speech in “You Win or You Die.” (Originally I was going to name this post “Over-Critical Acclaim for the Khal’s Speech.” Or, “Sex and Violence in Game of Thrones: Contributions of a Pro-Feminist, Anti-Chest-Thumping Standpoint.”*)

In the latest installment of our “Two Profs at Home Over-thinking” series, Stu and I discuss whether it is politically incorrect to appreciate Game of Thrones in all its nasty brutishness.

*With apologies to Bob Keohane. (Also far as invented languages go, Sunju Park Kang argues feminist IR qualifies.)

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Duch-ing the issue: International Justice in Cambodia?


Lots happening on the international law front – A Spanish judge (not Garzon!) has indicted three American soldiers who fired upon a hotel in Iraq which resulted in the death of a Spanish journalist. (Those Spanish judges sure love their universal jurisdiction…) Also, the Cluster Munitions Treaty came into effect.

But perhaps the biggest international law story of the week was that of the conviction of Kaing Guek Eav or “Duch” by the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (aka Cambodia Tribunal).
However legal scholar Peter Maguire isn’t so sure. In a rather scathing critique of the Court he highlights several major problems, including:

  • It has lost the support of the (what seems to be increasingly corrupt) Cambodian government
  • That the Cambodian members of the Court are more anxious to please the wishes of the government than carry out objective investigations
  • That there have been allegations of corruptions and the fact that the Court is running at ‘a conspicuously slow pace’.
  • That although the Court was predicted to cost $20 million (US) per year, “the court has already spent at least $70 million and convicted only one suspect.”

But he leaves, perhaps , the most scathing critique for the ‘cheerleaders’ of international justice:

The biggest problem facing the ECCC is living up to it’s own hype. Claims that such trials lead to healing, closure, truth and reconciliation are speculative at best. How does one measure “healing, closure and reconciliation”?
While most Cambodians would like to see the Khmer Rouge leaders punished, they’ve grown used to seeing common thieves and their government’s political opponents suffer far worse punishment than that meted out to Duch. Bou Meng, a survivor of the Tuol Sleng prison, described Duch’s sentence to reporters as “a slap in the face.”
The U.N. legal experts and their cheerleaders in the human rights industry have lost sight of a basic fact: No matter how procedurally perfect the ECCC is, if it outlives the people it was supposed to try, it cannot be judged a success.

This is quite simply the most interesting article on international criminal justice that I have read in a long time.

The other fascinating aspect of it is his condemnation of the fact that the prosecution has decided to add the charges of genocide to the list facing the accused. He does not pretend that what happened under the Khmer Rouge was in any way not brutal, but points to the fact that this has really only made the case for the prosecution harder. “Proving” genocide is one of the hardest possible things as it requires evidence of intent. It was something that caused great difficulty in prosecuting Milosevic (until he did everyone a favour and managed to die in jail). Again, as Maguire notes:

None of the four defendants were hands-on killers like Duch — they simply issued orders from on high. Thus their cases will require the tribunal to take a much broader view of their legal mandate. Unlike Duch, these defendants were careful to distance themselves from the atrocities.

I must admit that I was more optimistic about the Court until I read the article. Then again, to be honest, I hadn’t been paying much attention to it. I was aware that it’s a “hybrid” Court – both a national and international court, with staff from both, like the Special Court for Sierra Leone. The benefit of such Courts for some NGOs and advocates is that while they are still under the ‘universally accepted principles of international justice’ (ie: due process and the like) they also serve as a teaching tool for the rule of law in countries where it has effectively been broken down. (For the US the advantage is to show that ad hoc courts work just as well, or better, than the ICC – something that it has a clear policy interest in, for better or worse.)


However, given what Maguire is saying above, this clearly appears to not be the case. In fact, it sounds as if it may be playing a role in helping an increasingly undemocratic government in Cambodia.

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Representing Children of Genocide

This week I served on a panel discussion for Jonathan Torgovnik’s photo exhibit on the Rwandan genocide at the Woodrow Wilson School Bernstein Galley at Princeton University. The exhibit contained extraordinary photographs of female genocide survivors and their children born as a result of genocidal rape.

There is also a extremely evocative video available here.

I was asked to comment critically on the exhibit and the accompanying book, Intended Consequences: Rwandan Children Born of Rape. The review I presented was mixed.

On the one hand the exhibit is very much needed. Children like these are growing up in conflict zones wherever sexual violence has been endemic, and there is a dearth of attention to their needs by the international community. Torgovnik’s images and accompanying narratives urge us never to forget the horrific events of 1994, and never to under-estimate the intergenerational consequences of such violence.

On the other hand I worried that the photos and accompanying texts reproduce two narratives about children of genocidal rape that draw attention away from their own human rights – something I’ve written about recently in a Millennium article. Though references to the lives of the children are sprinkled through Torgovnik’s book, the majority of the testimonies are about the rapes themselves (situating children as products of genocide rather than as children who need help) and the struggles of the mothers in the aftermath (situating children as the source of these struggles rather than the victims of their mother’s neglect, abuse and stigma from the community).

The women’s needs and the earlier question of genocide prevention are extremely important and neglected topics in their own right. But conflating them with the topic of the children diverts our attention, I fear, from the child rights dimension of the issue. The book should perhaps have been titled “Intended Consequences: Rwandan Women Raising Children Born of Rape,” if the focus was to be on the mothers.

A child rights view of this issue would begin from a different starting point, I argued. It would:

1) Make the children’s present lives, not their mother’s traumas, the frame of reference. Rather than regurgitating the troubles from which they resulted, explore how the social stigma around their origins affects their everyday social, psychological and political worlds and what this means for their human rights and healthy development. As I spoke to Torgovnik afterward, it was obvious that his interviews with the mothers had allowed him to glean considerable data on precisely these factors; I would have liked to see them more front and center in the materials that resulted from his project – or to see other projects that do take this perspective.

2) Include children born of rape as a diverse category. This project focused only on children kept by their mothers, but research has shown that many of these kids end up with other caregivers facing a different range of issues. (Admittedly, following the larger category of children born of genocidal rape is a much taller order, and as Torgovnik rightly told me afterward, you must start somewhere.)

3) To the extent possible, allow children to tell their own stories. Of course this often isn’t possible for very small children, but these Rwandan kids are teenagers now and surely have thoughts about the genocide, about school, about bullying, about discrimination, about relationships with their parents and siblings that could be a basis for understanding how they are doing relative to other kids growing up after a genocide – even without raising sensitive questions about things they may or may not understand. I worry when I see adults speaking about children, with children’s voices absent. Admittedly it can be extremely difficult to secure access to interviews with such children. Still, finding a way to let these children have a voice is going to be very important to really assessing their needs and strengths as we gradually move beyond treating them as an invisible population.

4) Represent children only in ways consistent with their view of themselves and not in ways that will contribute to their marginalization, and protect them from the harms that can come from participation in research studies about sensitive topics. Here my view of Torgovnik’s work is mixed. His choice not to interview the children as such, while it prevented them from exercising participation rights, was meant as a form of protection. He also took efforts to make certain the photos would not be distributed in Africa, so the hope is that the images will do some good in drawing donor and humanitarian attention to the issue without contributing to further stigma within local communities. But I wonder about whether video disseminated on the Internet can be controlled in this way, and I worry about the psycho-social impacts on a Rwandan teenager who gains access to images of him or herself online, now or later in life, next to text of his mother’s disparaging comments. Torgovnik’s answer to this is a thoughtful one – you have to weigh the very small likelihood of that happening despite your best efforts against the good that can come to the children as a population from advocacy attention to the problem.

Which brings me to:

5) Projects such as these should serve the goal of improving protective measures for children. On this point, Torgovnik is to be strongly commended. He has used the publicity from his work to create an NGO, “Foundation Rwanda” which channels money from Northern donors to pay for school fees for these children, who otherwise cannot access free schooling through the Rwandan government’s survivors’ program. So his project has made a concrete positive difference in many children’s lives. The money for the initiative is a direct result of donations received after the publication of his photos in the British and German press. The program is implemented confidentially, so it doesn’t mark the kids as recipients of such aid in a way that might risk a backlash. As such, it also provides an example of “best practice” that bigger child protection organizations could use if they chose, to counter their claim that it’s impossible to do programming for this population without doing them harm. I have written more about this path-breaking initiative here.

Ultimately, I think this project raises an important question in human rights advocacy: how to balance the dignity and participation rights of vulnerable or stigmatized populations with the desire to generate resources with which to promote their betterment. Thoughts?

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Science Fiction, Popular Culture and the Concept of Genocide

Claims of “genocide” abound in policy discourse. So do misunderstandings about the concept.

Some recent examples. In the last two years, Russia claimed that Georgia’s attack on Tshkinvali was “genocide;” US House of Representatives accused Iran of inciting genocide in response to Ahmadinejad’s inflammatory comments about wiping Israel (as it is currently politically constituted) off the map; and Gideon Polya apparently discovered a correlation between countries experiencing “war, genocide and occupation” and the failure of those countries to win Olympic medals.

These examples demonstrate both the political salience of the “genocide” label as a catch-all term for “evil-doing,” and the general lack of understanding of a relatively narrow term which connotes a set of actions aimed to destroy national, political, religious or ethnic groups, not to describe all the other horrors against individual human beings of which Mankind is capable, and certainly not all forms of deadly political violence. At the heart of this misunderstanding is a confusion about the distinction between group rights and individual rights.

Popular culture often doesn’t help. So I argue in my new essay “The Enemy We Seek to Destroy,” just published in Adam Jones’ collection Evoking Genocide. The article analyzes narratives about “war crimes,” “crimes against humanity” and “genocide” in the science fiction series Star Trek: The Next Generation, and focuses particularly on the Federation’s understanding of ethical conduct vis a vis a truly genocidal enemy, the “Borg.”

Excerpts from my essay are below the fold.

Star Trek, a cultural phenomenon that encompasses the original TV series, five spin-off series, ten feature films, and numerous books, comics, games, magazines, and fan websites, has long been understood by cultural theorists as a political commentary on contemporary world affairs. Those of us who have followed it closely see it above all as a morality play. Episodes routinely discuss timeless issues of what it means to be a person; whether good can triumph over evil; the relationship between emotion and reason; the meaning of free will; and the nature of justice.

As a young person, and later as a budding human rights theorist, I perceived in Star Trek a commitment to liberal individualism and a respect for cultural self-determination. In that sense, the “United Federation of Planets” – the cosmopolitan organization that dispatches the Starship Enterprise to its distant realms – opposes violations of both individual and group rights. Growing up, the show was a constant touchstone for my emerging ethical and political consciousness. In several episodes, the Enterprise encounters planets where genocidal practices are in place. Each case is treated as the outer limit of the non-interference doctrine (the Prime Directive), which might be read as an early articulation of the norm of humanitarian intervention.

Against this background of appreciation for the show’s moral universe, I later found myself, somewhat to my surprise, disillusioned by a particular episode, one in which the Federation itself contemplated genocide against an alien collectivist culture. The Borg are a cybernetic race who evolve through assimilating organic species, and their technological distinctiveness, into their own cyber-collective – linking individual “drones” to a single collective consciousness. In the fifth season episode, I, Borg, the Enterprise encounters the crash site of a Borg scout ship, along with a lone Borg survivor. At the insistence of the doctor, Beverly Crusher, the drone is taken aboard for medical treatment – although the inclination of the other officers is to shoot the drone, since “the collective will come looking for it.” (In fact, the Borg have engaged the Federation previously, with the goal of assimilating Earth’s entire civilization into their collective. Picard was once abducted by the Borg, which possibly explains his no-holds-barred attitude.)

When the drone recovers consciousness, Captain Picard hatches a plan to introduce an “invasive programming sequence” into the drone’s subroutine. When the drone interfaces with the Borg collective, Picard hopes that the computer virus will “infect the entire collective” and “disable their neural network,” in effect shutting down their brain, and eliminating them as a threat to the Federation. Over the course of the episode, however, the crew is forced to reconsider this plan, as the Borg drone, now severed from the collective, begins to function as an individual, evoking the sympathy of the crew and respect for his rights.

What immediately struck me about this sequence is that, while the characters eventually come to view harming the individual Borg as wrong, the idea of genocide (as a crime against a collective) is never fully critiqued. Most of the officers accept with very little discussion that eradicating the Borg collective as such is an appropriate course of action. Crusher is alone in questioning the policy of genocide. Other officers concur with Picard: “We’re at war”; “They’ve attacked us at every encounter.” But even Crusher appears implicitly to accept the crew’s argument that exterminating the Borg as a collective could be justifiable on grounds of self-defense. Her disagreement focuses on whether exterminating individual Borg non-combatants is ethical. She does not concur with Picard’s argument that individual drones lack rights. Were collective rights her reference point, Picard’s argument about the Borg collective consciousness would not have been “convenient,” but would rather underscore the atrociousness of targeting that civilization-defining consciousness.

Subsequent to this scene, the morality of destroying the Borg collective as such is evaded. The ethical debate in the episode (for in Star Trek, there always is one) centers only on whether the “invasive program” would violate the rights of Borg drones as individuals. Dr. Crusher does argue on behalf of the Borg prisoner: “When I look at my patient, I don’t see a collective consciousness. I see a living, breathing boy who has been hurt and needs our help.” But this is reminiscent of protections for wounded prisoners enshrined in humanitarian law. She also continues to question the ethics of “using” an unsuspecting individual to destroy his people, though increasingly the targeting of “the people” itself is lost in the discussion.

Crusher’s claims are validated as the episode progresses. The drone, now separated from the collective, begins to exhibit individual traits, and becomes increasingly identifiable as a person. Thus, while early on Picard had used classic genocidal rhetoric in encouraging his crew not to become too attached to “it,” he eventually comes to view the prisoner as an individual worthy of respect, protection, dignity, and choice. In many respects, the episode is a study in the power of dehumanization to enable atrocity, and of rehumanization to restrain it. But rather than transforming Picard’s understanding of the Borg collective, this newfound sensibility simply provides him with a different set of concerns to weigh against the supposed moral viability of genocide. The goal of eradicating the collective continues to hold sway throughout the episode, but it becomes difficult to justify forcing the individual drone to return to the collective like, as Crusher puts it, “some sort of walking bomb.”

In fact, it seems that the ability to view the drone as worthy of rights at all is contingent on viewing him as distinct from the Borg, rather than as an individual of a sentient race that ought not to be exterminated on principle. This is perhaps best exemplified by Picard’s statement, when he finally concludes that it would be wrong to bring the plan to fruition: “To use him in this manner would be no better than the enemy we seek to destroy.” Destroying the enemy “as such” is not questioned – only the use of a sentient individual as a tool for this purpose. This is thoroughly inconsistent with the rules of war in liberal international society, as well as the rules of engagement in the Star Trek universe. There, one does not seek to destroy one’s enemies, but merely to defeat their military forces, and perhaps transform them into allies.

To my mind, the Borg episodes in general, and this one in particular, engage a range of ethical questions relating to the concept of genocide (or xenocide?). First, are genocidal strategies appropriate against an enemy bent on committing genocide themselves? That is, is genocide justifiable if committed in self-defense? If so, what is the burden of proof for demonstrating that defense against genocide is impossible with less draconian methods?

Second, if an entire society is mobilized (as the Borg arguably are), does treating that society as a military objective constitute genocide, or would it be consistent with the laws of war that permit targeting military objectives? (That is, is it only genocide if the targets are non-combatants, or is the reference point the existence of the collective entity itself?) Are the laws of war obsolete when defeating an entire military would, essentially, require the destruction of an entire society? Is destruction of a civilization as such acceptable, even appropriate, if the destruction takes place through non-lethal means and is carried out so as to liberate “oppressed” individuals from a cultural context inimical to their own individual freedoms? And how should a military officer respond, when given a command that could be deemed profoundly unethical?

“I, Borg,” and Star Trek more generally, offers an opportunity to meditate on these issues. Indeed, as a multimedia phenomenon, it promises (and often delivers) a careful, nuanced grappling with some of the important political problems of our day. In this instance, however, I think the show missed an opportunity to educate viewers about the nature of genocide both as concept and as crime: as something distinct from war, and from questions of individual human rights. Apparently, even the most liberal ethical narrative can accommodate genocidal thinking within certain parameters. This should give us pause.

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ICC Issues Arrest Warrant for Bashir, But Not For Genocide

When Foreign Policy’s Morning Brief hit my inbox today, the top story was the arrest warrant issued by the International Criminal Court for President Omar Bashir of the Sudan.

FP’s header gets the charges wrong, however – Bashir is charged with war crimes and crimes against humanity, but not with genocide. The distinction is legally and politically significant – crimes against humanity include a host of horrible acts, when widespread and/or carried out systematically against a civilian population.

Genocide, however, is a crime not against individual civilians but against certain groups and requires a finding that the perpetrator carried out a series of acts with the express intent to wipe out not particular people but the group itself. Note the exact language the prosecutor had to work with, borrowed from the 1948 Genocide Convention and spelled out in Article 6 of the Rome Statute:

“For the purpose of this Statute, ‘genocide’ means any 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.”

This is a tall order, not only because the definition of what exactly constitutes a “group” is often ambiguous, but because even if the above acts have occurred, and even if they can be linked to the political leadership, those leaders are seldom careless enough to leave paper trails demonstrating the acts were carried out with intent to destroy the group as such.

This explains why there have been only a handful of convictions for genocide in the history of international war crimes tribunals.

In political terms, this is likely to be an unpopular decision – the colloquial use of the term “genocide” as a referent to Darfur, by diplomats and activists, has overshadowed the legal meaning of the term for several years, and many people view crimes against humanity as a lesser charge (though in my mind, systematic rape and slaughter is plenty bad even when there’s no intent to wipe out a whole group). But in legal and institutional terms, the absence of genocide from the charges is a no-brainer: as a new institution, the ICC prosecutor has an interest in making a case he thinks he can win. Whether or not this is a good decision politically is about to be a huge subject of debate – see for example Kevin Jon Heller’s reactions – but let’s remember, the ICC is a legal, not a political institution. In theory.

UPDATE: Not long after I posted this (or perhaps even before I did), Foreign Policy had made a correction – the actual website now shows “crimes against humanity” as the charge.

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Intervening to stop the Holocaust

Erik Erickson at RedState thinks he’s found an Obama gaffe:

Barack Obama suggests we need to consider moral issues in intervening with combat forces. He mentions intervening in the Holocaust and how we should have done that.

Um Senator, we did intervene in the Holocaust. It was called World War II.

I guess you hadn’t heard of that, kind of like you hadn’t heard of Bill Ayers.

I hate to say it, but Mr. Erickson just had a moment of profound ignorance.

The Holocaust had squat to do with the US intervention in Europe. Hitler declared war on the United States out of solidarity with Japan. In fact, US inaction in the face of genocide against European Jewry is a well-known historical fact:

During World War II, rescue of Jews and other victims of the Nazis was not a priority for the United States government. Nor was it always clear to Allied policy makers how they could pursue large-scale rescue actions behind German lines. Due in part to antisemitism (prejudice against or hatred of Jews), isolationism, the economic Depression, and xenophobia (prejudice against or fear of foreigners), the refugee policy of the U.S. State Department (led by Secretary of State Cordell Hull) made it difficult for refugees to obtain entry visas to the United States.

The U.S. State Department also delayed publicizing reports of genocide. In August 1942, the State Department received a cable confirming Nazi plans for the total destruction of Europe’s Jews. The report, sent by Gerhart Riegner (the representative in Geneva of the World Jewish Congress), was not passed on to other government officials. The State Department asked American Rabbi Stephen Wise, who also received the report, to refrain from announcing it.

Reports of Nazi atrocities often were not publicized in full by the American press. In 1943, Polish courier Jan Karski informed President Franklin D. Roosevelt of reports of mass murder received from Jewish leaders in the Warsaw ghetto. No immediate executive action was taken. The U.S Congress twice rejected legislation that would have allowed entry to the United States for 10,000 unaccompanied Jewish children seeking refuge.

On April 19, 1943, U.S. and British representatives met in Bermuda to find solutions to wartime refugee problems. No significant proposals emerged from the Bermuda Conference. In January 1944 Roosevelt established the War Refugee Board (within the Treasury Department) to facilitate the rescue of imperiled refugees. Fort Ontario, in New York, began to serve as an ostensibly free port for refugees. Refugees brought to Fort Ontario, however, were not from Nazi-occupied areas, but rather from liberated zones.

By the spring of 1944, the Allies knew of the killing operations using poison gas at the Auschwitz-Birkenau extermination camp. Jewish leaders pleaded unsuccessfully with the U.S. government to bomb the gas chambers and railways leading to the camp. From August 20 to September 13, 1944, the U.S. Air Force bombed the Auschwitz-Monowitz industrial complex, less than five miles from the gas chambers in Birkenau. However, the U.S. maintained its policy of non-involvement in rescue, and bombed neither the gas chambers nor the railways used to transport prisoners.

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Speaking of Genocide

At the Danger Room blog, Nick Thompson claims Russia may be right in calling Georgian behavior “genocide.”

Over at Complex Terrain Lab, Mike Innes pokes some useful holes in Thompson’s argument.

I would add to Mike’s points that the most important error made by Thompson is mistakenly conflating the intentional killing of civilians with genocide. The intentional killing of civilians in war is a war crime; if carried out en mass (even in peacetime) it’s a crime against humanity. Genocide is not a crime against civilians (as individuals) at all; it’s a crime against groups. To count, an atrocity has to be carried out with the intent of destroying a group. Russia has provided no evidence whatsoever to make this case: their rhetoric is also based on a misunderstanding of the term.

Naturally. Since it’s simply propaganda. As are Georgia’s counter-claims.

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(Soft) Power Politics

Lots went on in international criminal justice this past week.

A few thoughts about three big news stories and a smaller one are below the fold.

1) Omar Bashir was indicted by the International Criminal Court. I was less surprised by the fact that a sitting head of state might be charged than that the list of charges actually included genocide. Not because the facts on the ground don’t suggest they should, but because of the nature of the crime and the nature of the court.

a) Genocide is an “intent” crime – to convict you have to prove not just that atrocities occurred, but that they were carried out with the specific intent to destroy a national, ethnic, racial or religious group. Historically, it’s been much easier to convict people for war crimes and crimes against humanity than for genocide, because few nefarious leaders are careless enough to leave a paper trail. Bashir, for example, has been a master of plausible deniability.

b) As a new institution still struggling for credibility within international society, the ICC has an explicit policy of going after only the most clear-cut cases, cases that it is likely to win. (Unlike its “activist” predecessors, the ICTY and ICTR, whose judges often made history with their interpretations of international law.)

But, perhaps this is a move calculated to make sure that some of the charges can in the end be dismissed. I predict the genocide charges won’t stand, for the same reason that the UN couldn’t condone a finding of genocide in its 2005 report on Darfur; but that crimes against humanity will. Then, the court can give the impression that it is evenhanded and apolitical.

2) Radovan Karadzic, former President of the Bosnian Serb breakaway republic in the former Yugslavia, was captured. I had little but kudos to say about it last Tuesday, but have followed a rather disturbing trend since whereby commentators and journalists refer to Karadzic as a “war criminal.” (I’m guilty myself, having cited Robert Farley’s blog post entitled “Genocidal Maniac captured.“) But the whole notion of international criminal law as rule of law is that a man like Karadzic is only a war crimes suspect until he is tried and found guilty. (At present, therefore, we must keep in mind that he is only an alleged genocidal maniac.)

3) The trial of Salih Hamdan, bin Laden’s former driver, will go forward at Guantanamo Bay after Hamdan’s attorney exhausted efforts to have it dismissed. The trial has been touted in the press as the first “US war crimes trial” since Nuremberg, though it’s really nothing of the sort.

a) The defense will argue that Hamdan was at worst a low-ranking al-Qaeda employee; and that much of the evidence against him was either coerced or provided willingly to military investigators on the hunt for bin Laden: Hamdan was not told that he was incriminating himself when he cooperated with the government.

b) The USG will argue that a terrorist is a terrorist, sexual humiliation isn’t degrading so evidence gained this way is admissible, and Miranda rights don’t apply to non-US citizens anyway so Hamdan’s cooperation with the USG doesn’t erase his crimes.

Leaving aside the question of whether a civilian who drives a car for the “enemy” has committed a “war crime,” one wonders about the implications for HUMINT operations if the USG develops a reputation for taking this stand. Which defectors from al-Qaeda or any other entity will provide us with actionable intelligence if we thank them by putting them on trial? Here is a clear case where following international rules is also in our concrete interest, a point continually lost on the Bush Administration. Good coverage of the Hamdan case over at SCOTUSblog.

4) Finally, John McCain told Wolf Blitzer that he could imagine bin Laden being prosecuted in an international court. If he means the International Criminal Court, the attacks of 9/11 couldn’t be prosecuted there: only crimes committed by al-Qaeda after July 2002 would fall within the court’s mandate. But more interesting is what this statement tells us about the likelihood of the US joining the ICC after the next election. Kevin Jon Heller writes about this and Obama’s position on the ICC at Opinio Juris.

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If Hitchens Says It, It Must be True

Geez, get off the grid for ten days or so, come back to find Zimbabwe on the verge of civil war, the International Criminal Court indicting Bashir on charges of genocide (now that is a shocker), the zombies overtaking Norway, and Christopher Hitchens reversing himself on whether waterboarding is torture. (Makes a big difference in perspective whether you undergo the procedure yourself.)

My favorite quote from his new expose in Vanity Fair, aptly entitled “Believe Me, It’s Torture”: “You’re not being boarded, you’re being watered.”

Hat tip to Hank at Eclectic Meanderings.

That’s all…

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Where is the Global Attention to Children Born of War?

Went on BBC World for the first time yesterday to talk about protecting children born as a result of sexual violence in conflict zones like Darfur, Bosnia, Rwanda, East Timor, you name the conflict zone where rape has been endemic, you’ll find a host of children growing up in the aftermath.

The segment just before my interview focuses on children conceived during the Rwandan genocide.

As I describe in my interview and as the volume of essays I published last year details, these children are often (though not always) treated rather badly in the aftermath of wars, either by their states, local communities or sometimes their traumatized mothers.

The big puzzle for me as a scholar of global agenda-setting in the human rights area is that lack of attention to these children by the international community. 300,000 child soldiers galvanizes the Security Council, but half a million or so children at risk of infanticide, neglect, abuse, social exclusion or statelessness remain invisible.

I wrote about this before and talk about it a bit on the segment. Am continuing to collect thoughts on the matter from anyone who cares to ruminate on a grim and depressing topic. Your comments will help me refine an argument for my new book about how the human rights network exercises an agenda-denying as well as agenda-setting function.

Here’s one of my theses: nobody owns an issue like this. Child protection agencies think of stigma against children born of rape as a gender-based violence issue. So they assume that women’s groups are covering it. Gender-based violence experts tend to focus on the trauma to the direct victims of rape, not long-term inter-generational effects on their babies. They see the protection of those children as falling to the child protection agencies. So the babies fall through the cracks.

How many other issues or populations are out there that get missed by advocacy organizations because they don’t fit the ideational and organizational turf of the NGO sector?

What other factors explain this or other such cases?

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Not Such a Happy New Year…

… for those burned to death inside a church in Kenya yesterday. The victims were members of the Kikuyu tribe, whose ruling party is suspected of having rigged the recent election; the mob that doused the church with gasoline and set it alight was mostly Kalenjins, Luhyas and Luos, the ethnic group of the party dominated by the opposition, who is contesting the electoral results.

Genocide Watch has released a genocide alert for Kenya in the face of the mounting violence:

“Ethnic massacres are an indicator that the risk of genocide in Kenya has risen to Stage 6, the Preparation stage. Kenya has not yet descended into actual genocide. However, the next stage in the process is actual genocide, and Kenya is close to that stage.

Genocide can be bilateral, with perpetrators from two (or more) groups killing members of other groups because of their ethnic identity. Burundi had such bilateral genocide from 1993 – 1995.

Genocide Watch makes the following recommendations:

1. No country should recognize or congratulate President Kibaki for his “re-election” until the results are confirmed by independent election inquiries.

2. Mr. Odinga should publically denounce violence against Kikuyus, and President Kibaki should forbid violence against Luos and other ethnic groups.

3. President Kibaki and Mr. Odinga should declare their willingness to abide by the decision of an independent election inquiry commission whose members are named by both men, including trusted leaders from other African countries.

4. Both President Kibaki and Mr. Odinga should refrain from holding mass rallies, and should firmly forbid their supporters from joining criminal militias that are murdering and looting. Members of such militias should be arrested quickly and tried for their crimes.

5. Religious and civil society groups in Kenya should vigorously oppose the violence and protect people who are targeted because of their ethnic identity.

6. The African Union should begin immediate planning to send well equipped police forces to Kenya to quell the ethnic rioting there. The United Nations should condemn the violence and financially support African Union efforts to mediate the dispute and prevent further violence.”

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Guns and Genocide, version 96.12b

After the 1989 massacre of pro-democracy advocates in Tiananmen Square by the People’s Liberation Army, the NRA ran advertisements claiming that if the protesters had been armed, they could’ve defended themselves and thus prevented the anti-democracy crackdown. This kind of argument, rooted in the (correct) conviction that the ultimate recourse against tyranny is armed insurrection, has a long history both in political theory and in gun-rights advocacy.

Adopting this logic, Joe Katzman, of Winds of Change, writes that the world’s indifference to the mass violence in Zimbabwe has convinced him that gun ownership is a basic right. Over at Irregular Analysis, Anthony reacts to the essay:

Money quotes:

“The Right to Bear Arms is the only reliable way to prevent genocide in the modern world.”

“Arm Zimbabwe’s opposition. Now” ….

I need to digest this. I may have something to say on it later, I may not. What I will do, however, is invite readers to discuss the matter in the comments box. Or if that doesn’t appeal, email me and if you aren’t mental (not that any of our readers are) I’ll try to post some responses up on the site.

To start the ball rolling my gut response is; provocative idea, but no cigar [quotation has edited and reformatted].

Anthony’s right: the correct answer is “no cigar.”

1. A subpopulation is vulnerable to genocide if they are, in some significant respects, weaker than the groups who seek to eliminate them. Having state-of-the-art personal weaponry can help matters, but not if the subpopulation is dispersed, significantly outnumbered, or otherwise at the “short end” of a power asymmetry. In this respect, claims that “the right to bear arms is the only reliable way to prevent genocide” should really be understood as “in a world in which all subpopulations were secure against attack, there would be no genocide.” This is certainly true, but trivially so.

2. Security, of course, is often relative. The greater the capabilities of one side, the less secure the other side. This is Bill Wallo’s point:

But the presence of a weapon doesn’t always breed safety – sometimes it breeds an arms race because then everyone is caught in a Prisoner’s Dilemma of deciding what to carry. The guy with a knife has an advantage over the guy without one, and the guy with a gun has an advantage over both – so why not pack a gun? This sort of escalation in ostensible “defense” can have tragic results – hence the viability of societal restrictions that basically require the scaling back of the arms race between citizens.

The problem here is actually a Security Dilemma. The Security Dilemma is related to the Prisoner’s Dilemma, in that both are cases in which rational choices produce Pareto-inefficient outcomes. But unlike in the Prisoner’s Dilemma, the problem Bill points to is one of signaling: if a subpopulation acquires a boatload of weapons to defend itself against possible genocide, it may signal to the majority population that it really does have aggressive intentions against them; thus the subpopulation may “prove” that the only way to deal with it is to ethnically cleanse or exterminate it.

In fact, many instances of mass violence and genocide do involve situations when a subpopulation seeks to arm itself in order to gain political autonomy (e.g., the Bosnian Muslims, the Kurds), or when states perceive the presence of the subpopulation as a threat to national integrity and state security (e.g., the Armenians). Thus, regardless of whether or not arms procurement by a minority group is purely defensive in character, political leaders have a lot of reasons to see that activity as a justification for initiating genocide.

3. Such perverse effects are particularly important once we recognize that genocide is a subset of mass violence.

Genocide can be extremely deadly (e.g., six million Jews, around twice as many “Kulaks”) but non-genocidal mass violence kills a lot of people. Over the next two years the death toll in the Congo may well surpass that of the Holocaust [ed: it would take six years at the current death rate for more people to die in the Congo than in the Holocaust; more people have already died, though, than in the Rwandan genocide or in the Bosnian conflict]. The deaths in the Congo, however, are the consequence of a society awash in guns and warlords (thanks to factors ranging from the lucrative diamond trade to external support for rebel forces), as well as a state that no longer maintains control over violence in its territory.

Moreover, ethnic violence kills most of its victims indirectly rather than directly. The most deadly effects of such intergroup conflicts tend to stem from the displacement of people from their homes, i.e., from the secondary impact of disease, poverty, and starvation. So let’s say, for the sake of argument, that we could stop genocide by creating a world of mutually hostile subgroups armed to the teeth. Such a world would almost certainly involve a lot of intergroup violence that, in the end, would probably cost more lives than the alternative.

4. It is true that states disarm minorities as part of the process leading to genocide. The Turks began the Armenian genocide, for example, by confiscating Armenian weapons. But here I’m reminded of Michael Mann’s quip about R.J. Rummel’s “democide” argument. Rummel argues that democracy is the best check against mass killing, because democracies do not kill their own citizens. Mann counters that democracies do kill their own citizens, it just that by the time they’re actually slaughtering subpopulations they don’t look particularly democratic anymore. Saying that the right to bear arms prevents genocide is no different than saying that due process, equal protection, or freedom of association prevent genocide. If we could guarantee those rights everywhere in the world, there wouldn’t be any genocide. If we can’t guarantee them – which we can’t – then we also can’t guarantee a right to bear arms.

5. Ultimately, what all this comes down to is a tragic irony of politics. The modern state’s “monopoly on the legitimate use of force” has created historically unequalled security for many of the world’s people. Given the choice, even libertarians would probably admit that living in such “statist” societies as the US, Canada, or France is a far more attractive choice than living in the anarchy of the present-day Congo, Somalia in the early 1990s, or any other “failed state.” But it is precisely what makes the state the most effective guarantor of security and prosperity humanity has yet devised – its enormously effective control over organized violence – that also makes it capable of killing and slaughtering on an unprecedented scale.

6. Regardless, simply throwing guns at the Zimbabwean political opposition is probably not a good idea, as they would be crushed by the better-trained and better-organized government forces. If we want a policy to overthrow the government, then we should expect to train and equip an insurgency, i.e., engage in some form of intervention.

——–

Paranthetically, I found the Rev. Donald Sensing’s article, which was trackbacked to Katzman’s post, extremely interesting. I do not, however, agree with his claim that:

Let me repeat: There is no moral difference between arming oneself for self defense and forming, arming and using a police force. Using arms for self defense is an act of protecting the sovereignty of the people.

In the kind of social-contract liberalism that I take to animate American politics, individuals do not simply delegate self-defense to the government. Individuals also agree to give up their right to be a judge in their own cases, as well as to execute the laws of nature.

As John Locke argued in the Second Treatise:

Sec. 21. To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men’s putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power.

Of course one has the right to protect oneself, with lethal force if necessary, if confronted by an attacker. But that act of self-defense is always deeply problematic, because it puts one back into the “state of war.” In that state, there is no rule of law, no impartiality, no fairness, and hence there is an important moral difference between using arms for ones own defense and arming a police force. Put somewhat abstractly, self-defense (against another individual) protects one’s own sovereignty, not the sovereignty of “the people,” and hence is always in moral tension with the social contract that underpins civil society.

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NATO Takes Limited Steps on Darfur

The international community’s inadequate response to the ongoing genocide in Sudan (and yes, it is a genocide) brings shame upon us all. Recent polling suggests the American people agree, as majorities favor a stronger US commitment to the stop the crimes against humanity being committed by the Sudanese-backed Janjawid.

Today, NATO pledged to provide airlift support to send additional African troops to the region:

NATO defence ministers gave the green light on Thursday to an operation to airlift extra African troops to Sudan’s troubled Darfur region, the alliance’s first mission on the continent.

NATO chiefs were at pains to stress there was no competition with a separate European Union mission, after NATO-member France said its offer to transport two battalions of Senegalese troops was under an EU, not a NATO, banner.

NATO’s go-ahead for the operation comes a day before Darfur peace talks sponsored by the African Union resume in the Nigerian capital Abuja. Tens of thousands have been killed in the arid western region and more than 2 million forced from their homes during a rebellion now well into its third year.

Current EU and NATO plans stop short of providing the robust support, including military intervention, that would be necessary to end the atrocities. The African Union (AU) and Sudanese government have “ruled out Western troops helping in Darfur,” but I imagine sufficient NATO pressure would change the AU’s mind. As for the Sudanese, they don’t have any right to make demands on the international community, and there’s not a lot they could do if they were faced with a serious humanitarian intervention in the region.

(For steps short of intervention that the US can take, see the excellent post by Derek Chollet on divestment and the extensive discussion of options by Susan Nossel, both of Democracy Arsenal.)

I remain ambivalent on the Iraq War. Yet we should all remember that at least part of the Bush Administration’s arguments for the invasion were based upon the past genocidal behavior of Saddam Hussein. What then, can we possibly say about a failure to do more in the face of ongoing genocide?

That being said, we also should not discount the significance of the EU and NATO pledges. The fact is that the US did not even make a serious commitment to logistical support – of any kind – to help stop the Rwandan genocide. As Samantha Power wrote in her influential Atlantic argue on the failure of the US to act:

The United States haggled at the Security Council and with the UN Department of Peacekeeping Operations for the first two weeks of May. U.S. officials pointed to the flaws in Dallaire’s proposal without offering the resources that would have helped him to overcome them. On May 13 Deputy Secretary of State Strobe Talbott sent Madeleine Albright instructions on how the United States should respond to Dallaire’s plan. Noting the logistic hazards of airlifting troops into the capital, Talbott wrote, “The U.S. is not prepared at this point to lift heavy equipment and troops into Kigali.” The “more manageable” operation would be to create the protected zones at the border, secure humanitarian-aid deliveries, and “promot[e] restoration of a ceasefire and return to the Arusha Peace Process.” Talbott acknowledged that even the minimalist American proposal contained “many unanswered questions”:

Where will the needed forces come from; how will they be transported … where precisely should these safe zones be created; … would UN forces be authorized to move out of the zones to assist affected populations not in the zones … will the fighting parties in Rwanda agree to this arrangement … what conditions would need to obtain for the operation to end successfully?….

On May 17, by which time most of the Tutsi victims of the genocide were already dead, the United States finally acceded to a version of Dallaire’s plan. However, few African countries stepped forward to offer troops. Even if troops had been immediately available, the lethargy of the major powers would have hindered their use. Though the Administration had committed the United States to provide armored support if the African nations provided soldiers, Pentagon stalling resumed. On May 19 the UN formally requested fifty American armored personnel carriers. On May 31 the United States agreed to send the APCs from Germany to Entebbe, Uganda. But squabbles between the Pentagon and UN planners arose. Who would pay for the vehicles? Should the vehicles be tracked or wheeled? Would the UN buy them or simply lease them? And who would pay the shipping costs? Compounding the disputes was the fact that Department of Defense regulations prevented the U.S. Army from preparing the vehicles for transport until contracts had been signed. The Defense Department demanded that it be reimbursed $15 million for shipping spare parts and equipment to and from Rwanda. In mid-June the White House finally intervened. On June 19, a month after the UN request, the United States began transporting the APCs, but they were missing the radios and heavy machine guns that would be needed if UN troops came under fire. By the time the APCs arrived, the genocide was over—halted by Rwandan Patriotic Front forces under the command of the Tutsi leader, Paul Kagame.

An aside: there’s another story in this article, which has to do with the intricacies of the EU-NATO-US relationship. Perhaps a subject for another post.

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