IMPLEMENTING THE GENOCIDE CONVENTION BY LOUISE ARBOUR UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

For fourteen years now, the international community has commemorated April 6th—the day that marks the beginning of the genocide in Rwanda—with a mixture of shame, contrition and solemn pledges not to let this most heinous of crimes happen again. Pledges are bound to be reiterated as we approach the 60th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide which falls on December 9, 2008, or just one day before another 60th anniversary: that of the adoption of the Universal Declaration of Human Rights. But to fully meet the commitments of both preventing genocide and punishing its perpetrators that, in aftermath of the Holocaust, were enshrined in international law, as well as to honor the memory of those who have since then perished in rampages of either blind or carefully orchestrated hatred, we need to take all possible measures to give real effect to these promises.

Thus far, the latter component of the treaty, that is punishment, has fared better than its preventive dimension. Indeed, in the course of time international criminal justice has, addressed with increased sophistication prosecutions for the crime of genocide and their implications. As a result, the legal responsibility of States to hold perpetrators of genocide individually accountable is now finding multiple venues. From the Security Council-created ad hoc and special international tribunals, to the treaty-based International Criminal Court, to the exercise of universal jurisdiction by national courts, the substance of related crimes and lines of responsibility have progressively come into sharper focus and clearer understanding.

The equally vital obligation set out in the convention to prevent genocide also needs to attain comparable rigor and eager enforcers. To this end, the Secretary-General of the UN has appointed a high ranking special adviser with the task of collecting existing information on massive and serious violations of human rights that could lead to genocide and working to enhance the capacity of the UN to analyze and manage information relating to this crime. The special adviser also liaises with other United Nations partners to better coordinate preventive activities. To further bolster such prevention capacity, in 2006 the Secretary General appointed seven experts who provide support to the special adviser and contribute to the broader efforts of the UN to prevent genocide. These initiatives represent important steps in the right direction. But I believe that more can and must be done to bolster our institutional capacity of prevention by directly anchoring such capacity into the genocide treaty.

Unlike many international human rights treaties, the genocide convention has never been endowed with a formal monitoring mechanism, known as treaty body, to examine implementation of the treaty provisions and to provide States with advice on preventive and corrective action. The earliest draft of the genocide convention—the first modern international human rights treaty—did envisage such a mechanism, but this innovative idea never made it into the final text. Since then, much experience has been garnered in the human rights field on the positive results that similar monitoring mechanisms can yield. Thus, the suggestions of creating one for the genocide convention has continued to be advocated by the UN leadership, victims, activists and legal experts as well as, significantly, by some fifty States which gathered in Stockholm in 2004. Other States, however, oppose it asserting possible duplication with the special adviser’s functions and with the mandate of the International Criminal Court, which presides over cases of genocide, crimes against humanity and war crimes.

Properly designed, a monitoring mechanism could provide an authoritative early warning of situations at risk of degenerating into genocide. Such situations are almost invariably preceded and characterized by a discernable escalation of systematic or gross violations of human rights.

If the necessary political will is mustered, the gestation of this mechanism needs not be long and complex. For example, the UN General Assembly can pass a resolution creating it as early as next September. Such action could be modeled on comparable initiatives undertaken in the past by other intergovernmental bodies, including the UN Economic and Social Council which created a committee to monitor economic social and cultural rights. Alternatives to this option would be necessarily more laborious and time-consuming, but they are feasible nonetheless. These include a treaty revision, as well as the adoption of an optional protocol to the treaty establishing the mechanism.

Avenues and options may differ in nature and requirements, but they must ultimately lead to the same outcome: provide an authoritative forum in which to assess States’ compliance with their obligation to prevent genocide, and to document their efforts to punish it or expose their obstruction of those who try to comply with this universal obligation.