Atrocities Prevention Experts Report Released

with Concrete Recommendations for the Next Administration

A major task was to identify ways to improve the ability of U.S., foreign, and international courts to prosecute atrocity crimes.  To this end, the Departments of Justice, Homeland Security, and State were tasked with developing proposals that would strengthen the U.S. Government’s ability to prosecute perpetrators of atrocities found in the United States, and permit the more effective use of immigration laws and immigration fraud penalties to hold accountable perpetrators of mass atrocities.  DHS’s Human Rights Violators & War Crimes Unit has been particularly active in identifying human rights abusers within the United States and preventing identified human rights violators from entering this country.  (See my coverage here). Agencies also looked for ways to support national, hybrid, and international mechanisms (including, among other things, commissions of inquiry, fact finding missions, and tribunals) that seek to hold accountable perpetrators of atrocities, consistent with the requirements of U.S. law. This has included transferring individuals indicted by the International Criminal Court to The Hague.

Image result for Just security logoby Beth Van Schaack, ‘Just Security,’ New York, November 7, 2016

I have been honored to serve on a bipartisan Experts Committee on Preventing Mass Violence—convened by a coalition of human rights, religious, humanitarian, and peace organizations—for the purpose of generating a set of concrete recommendations around the atrocities prevention imperative for the next administration. Our final recommendations and report are now available here.  Additional recommendations are directed at Congress and civil society.

The recommendations in the report are geared towards strengthening existing initiatives and tools, developing new ideas and measures, and further instantiating this priority into U.S. foreign policy.  Key top-line recommendations include the following:

  1. The imperative of atrocities prevention must be, and be seen to be, a priority in the White House to signal high-level attention and support. The report contains a number of concrete recommendations aimed at further developing and improving the atrocities prevention bureaucratic infrastructure. All agencies should offer relevant training in atrocities prevention.
  2. High-level attention and support must be followed by consistent funding dedicated to atrocities prevention. The Atrocities Prevention Board (APB) was supposed to be a revenue neutral enterprise, which overtaxed agencies. Allocating sufficient funding and personnel through a proposed Early Prevention and Response account will ensure that the national security bureaucracy takes prevention seriously. It will also help to expand policy coordination across the interagency and between regional and functional offices.
  3. The report calls for better alignment between preventing and countering violent extremism initiatives (P/CVE) focused on non-state actors (NSAs) with atrocities prevention efforts, given the role that NSAs play in propagating mass atrocities.
  4. It also calls for Treasury to revisit the feasibility of creating a stand-alone sanctions regime dedicated to atrocities prevention (independent of any country designation) and aimed at perpetrators and enablers.  (A notional Executive Order is available here).  Treasury should be appropriately resourced to enable it to hire the staff necessary to manage such authorities.
  5. Building on the monthly intelligence briefings for the APB, the U.S. government should continue to enhance its capacity to undertake focused and timely intelligence collection for the purposes of early warning aimed at below-the-radar crises.
  6. Agencies should aim for greater up-stream early prevention in fragile or at-risk countries to build resilience and strengthen norms against violence and discrimination. This includes support for transitional justice and post-conflict stabilization initiatives to reduce social marginalization and conflict and to strengthen civil society and the commitment to human rights.
  7. Embassies and posts have a crucial role to play in this work and should be augmented, rather than drawn down, when mass atrocities are looming to ensure a more effective on-the-ground response.  The government should streamline the process whereby expertise can be surged to small embassies in at-risk situations.
  8. The United States should conduct a rigorous “lessons learned” process led by an independent outside reviewer, such as the National Defense University to avoid bias.
  9. The United States should pass a crimes against humanity statute, which would require the Department of Defense to drop its opposition to the measure. It should also amend the War Crimes Act to allow for “present-in” jurisdiction like other provisions of Title 18 concerned with the crimes of genocide, terrorism, torture, the use of child soldiers, trafficking, etc. (See my prior coverage here).
  10. While the United States has a unique role to play when it comes to this work, we should continue to promote international cooperation around at-risk and crisis situations to enable early and effective action. In particular, the United States should continue to work to assist and improve the capacity of the United Nations and regional/sub-regional organizations to deploy effective peacekeepers, particularly as they implement their civilian protection mandates.
  11. In terms of civil society, recommendations focus on the role that NGOs can play in building public support and a national constituency for atrocities prevention.

The report provides much more detailed and concrete suggestions for implementing each recommendation.

By way of background, President Obama has issued a number of Presidential Study Directives—his term for an executive policy order that is promulgated with the advice and consent of the National Security Council in order to spur an interagency review of some aspect of U.S. national security policy.  In this administration, PSDs have addressed issues as varied as Homeland Security and Counterterrorism, National Space Policy, Nuclear Posture Review, Global Development, Export Control Reform, and Strengthening Military Families.  In August 2011, President Obama issued Presidential Study Directive No. 10 (PSD-10), declaring the prevention of mass atrocities and genocide to be a core national security interest and core moral responsibility of the United States.

PSD-10 traces its conceptual roots to the Genocide Prevention Task Force, an august body of policymakers that in 2008, on the eve of the election, generated a number of concrete recommendations for improving the ability of the United States, working with foreign partners and multilateral organizations, to respond proactively to at-risk situations in order to better prevent atrocities from happening.   The Task Force was co-chaired by former Secretary of State Madeleine Albright, and former Secretary of Defense William Cohen, and was jointly convened by the U.S. Holocaust Memorial Museum, the U.S. Institute of Peace (USIP), and the American Academy of Diplomacy.  Although the Report contains a number of important observations and recommendations, two conclusions stand out:

  1. Genocide and other mass atrocities threaten core national interests and
  2. These crises can be anticipated and, ultimately, prevented with the right organizational structures, strategies, and partnerships and with enough political will.

The Task Force recommended the creation of a high-level interagency body to improve our crisis-response system and better equip us to mount coherent and timely strategies for preventative diplomacy.

President Obama took this recommendation to heart in PSD-10.  Most importantly, President Obama directed the establishment of the APB featuring high-level interagency representation.  He also instructed the National Security Advisor to undertake a comprehensive 100-day review of the U.S. government’s anti-atrocity capabilities and recommend steps for creating a whole-of-government policy framework for preventing mass atrocities.  The relevant passage reads:

I direct the National Security Advisor to lead a focused interagency study to develop and recommend the membership, mandate, structure, operational protocols, authorities, and support necessary for the Atrocities Prevention Board to coordinate and develop atrocity prevention and response policy.  Specifically, the interagency review shall identify … steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to:  conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities [and] identifying new tools or capabilities that may be required…

In April 2012, President Obama approved the recommendations generated by this review and directed a range of steps to strengthen the U.S. government’s ability to foresee, prevent, and respond to genocide and mass atrocities.  Not surprisingly, a number of these lines of effort are within the ambit of the Department of State, including my former office, the Office of Global Criminal Justice, which advises the Secretary of State and the Under Secretary of State for Civilian Security, Democracy, and Human Rights on issues related to the prevention of and accountability for war crimes, crimes against humanity (CAH), genocide and other atrocities.  State accordingly created a Department secretariat to centralize this work and organize trainings for Foreign Service officers and other personnel deployed to at-risk areas.

A major task was to identify ways to improve the ability of U.S., foreign, and international courts to prosecute atrocity crimes.  To this end, the Departments of Justice, Homeland Security, and State were tasked with developing proposals that would strengthen the U.S. Government’s ability to prosecute perpetrators of atrocities found in the United States, and permit the more effective use of immigration laws and immigration fraud penalties to hold accountable perpetrators of mass atrocities.  DHS’s Human Rights Violators & War Crimes Unit has been particularly active in identifying human rights abusers within the United States and preventing identified human rights violators from entering this country.  (See my coverage here). Agencies also looked for ways to support national, hybrid, and international mechanisms (including, among other things, commissions of inquiry, fact finding missions, and tribunals) that seek to hold accountable perpetrators of atrocities, consistent with the requirements of U.S. law. This has included transferring individuals indicted by the International Criminal Court to The Hague.

Other agencies have also improved existing capabilities and developed new ones. The Department of Defense created new doctrine on Mass Atrocity Response Operations(MARO), appended as an appendix to a joint publication on Peace Operations, and U.S. AID created a new Field Guide on Helping to Prevent Mass Atrocities. The U.S. Treasury Department’s Office of Foreign Assets Control has a number of country authorities that empower the Department to target human rights abusers (e.g., Burma, Sudan, Syria, Iran, Central African Republic, and Venezuela) and impose financial sanctions, export controls and travel bans.  Concurrent with the APB roll-out, the White House announced E.O. 13606 focused on sanctions against those who use information technology to commit or facilitate human rights abuses in Syria and Iran. The intelligence community producedthe first-ever National Intelligence Estimate on the risk of atrocities around the world. The APB helps to develop and coordinate the United States’ multilateral engagement on these issues as well, including through bolstering peacekeeping capabilities.

In May 2016, President Obama instantiated the APB with Executive Order 13729, an effort that was in train since 2012. Updates on the work of the APB are available here.

is the Leah Kaplan Visiting Professor of Human Rights at Stanford Law School and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own and not those of the State Department. Follow her on Twitter (@BethVanSchaack).

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