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Whenever the crime of genocide or crimes against humanity have occurred, the international community and human rights nongovernmental organizations (NGOs) have asked themselves whether the developments that led to the atrocities could have been anticipated and possibly prevented. They question why no attempts had been made by the state involved, its society, or the international community at large to stop the carnage or events leading up to the genocide. Even if the perpetrators are later brought to justice, their sentencing cannot redress the human tragedy associated with the genocidal acts or the suffering of each individual. In most cases of genocide after World War II, the possibility of human tragedy could have been foreseen. Despite this reality, no fully convincing strategy has yet been designed to effectively prevent genocide. In fact, it remains an open question whether such a strategy can be developed given the complex social, economic, cultural, and psychological issues that may lead to genocide.

Existing means of preventing genocide or of preventing serious and widespread human rights violations that may lead to genocidal acts may be grouped, general speaking, into two categories: procedural and substantive ones. The former embrace all of those techniques developed by human rights institutions, which, for example, provide for the monitoring of human rights situations. The latter embrace nonprocedural obligations of states and individuals, such as the prohibition of incitement to racial hatred or the prohibition of racist organizations. Providing for criminal prosecution of acts of genocide, related acts, or acts that may create an environment that is or may become a fertile ground for genocide also has preventive effects. The threat of criminal prosecution not only labels certain human behavior as morally and socially unacceptable but also attempts to establish a psychological barrier that may prevent a potential perpetrator from taking criminal action.

All attempts to develop an effective system for eliminating genocide and crimes against humanity face one significant problem. Despite many attempts, there is no agreement on which factors may lead to such acts. Certain scholars have made reference to human destructiveness leading to instinctual aggression, to humankind's intraspecific warfare, and to human destructiveness developing from the fear of death. These attempts to explain the unthinkable are rather academic. The restructuring of the human psyche is not a workable solution, even if warfare or human destructiveness is assumed to be part of the human character. One has to proceed to a different level of assessment, and attempt to answer the question: What are the social, cultural, religious, political, or economic conditions under which instinctual human aggression may find its expression in genocidal or related acts?

Factors Likely to Induce Genocide

There is no single explanation of why a government and a society pursue a policy of genocide or crimes against humanity. In most cases throughout history, genocide or related acts were not the result of sudden decisions but, as with the Holocaust, the result of ideological and political preparation and indoctrination. Particular groups are identified as inferior or somehow unworthy in a given society. Such identification of a group of people may be initiated by that part of the society or the government preparing for genocide. Alternatively, or additionally, the identification of a particular group or groups within a larger community can be the result of an act of self-identification of that particular group or groups with the view to preserve its cultural, linguistic, religious, or historical particularity.

Such self-identification as a group is protected under international law. Under the ever increasing relevance of human rights, the world has become aware of the fact that states are neither ethnically and culturally homogeneous, nor is there any merit in being so. In fact, attempts to create ethnically homogeneous states in the aftermath of the dissolution of the former Yugoslavia have resulted in the term "ethnic cleansing," an activity related to genocide.

The branding of a particular, targeted group as being inferior or dangerous for another part of the community, or the stability of the respective state, is the first clear indicator of a situation that may lead to genocide. Even the development and fostering of negative feelings or stereotypes within a society against individual members of a group just because they are members of that group should be considered a warning signal. It would be naive, however, to believe that only the dominant group in a given society could stimulate misunderstandings and tension; the later targeted group may contribute to feelings of alienation by excluding itself from the society, by conveying an attitude of superiority, by giving the impression of not being loyal to the state it lives in, or by advocating its secession from the given state. Frequently the attempt is made to rationalize the perceived difference or inferiority of the targeted group or the superiority of the dominant group by developing pseudo-scientific theories. This was particularly true for the German policy leading to the Holocaust. The development of such theories and their publication should also be considered a potential precursor to genocidal or related acts.

What is the mechanism that makes the dominant part of a society take action against a particular group? Several historians offer explanations. Individuals such as Leo Kuper hold that material interests may be an important factor in the development of genocide. This may be true in cases where a particular group is occupying an area that is of significant interest for the economic well being of the region or country. This is a situation indigenous groups have faced and are still facing; for example, the repression of the Native Americans or the Australian aborigines was mostly economically motivated. Expelling indigenous populations or even transferring them to other areas may take the form of or may result in genocide.

However, economic interests may have little or no significance in the genocide against targeted groups that are singled out for purely ideological reasons. Economic factors were irrelevant, for example, in the German genocide against Gypsies, which was motivated by pure malevolence and historical prejudices. In fact, prejudices can exist and may even become quite virulent—even in societies where Jews and Gypsies do not play any significant role in the society or where they do not exist at all. Perhaps it is most appropriate to say that aggressive attitudes toward particular ethnic or religious groups are likely to materialize in times of a society's transition, when it faces an identity crisis, or when it is in the midst of economic crisis.

Factors Likely to Prevent Genocide

Having touched upon situations that are more likely to bring about aggression against a particular group in a given society, it is worthwhile also to touch upon situations that are more immune to such development.

History has shown that the attitude of singling out a particular spectrum of the society develops less in societies that are pluralistic and used to be so. Equally democratic societies are usually less vulnerable to genocide. Given the wave of xenophobic and anti-Semitic attitudes western European countries are facing, it would be credulous to believe that democratic societies are absolutely immune from anti-Semitic, xenophobic, or related attitudes. It is essential that states—apart from their form of organization—are socially and economically stable. All occurrences of genocide in modern times have taken place at times when states underwent significant transitions and thus lost their previous identity, or perceived it as endangered. For example, the progressive disintegration of the Ottoman Empire was one of the causes of the aggression against the Armenian population. Likewise, the destabilization of Germany and Austria after World War I facilitated and fuelled the growth of anti-Semitic feelings.

Genocide only takes place when it is organized by a state, endorsed by state authorities, or approved of by the majority of the dominant members in a society. Therefore, preventive actions either have to strive for the immunization of the society against any attempts to make any group a target for discrimination or suppression, or to provide interventions from the outside if such developments are about to unfold in a given society.

Preventive Measures under the Genocide Convention

The Convention on the Prevention and Punishment of the Crime of Genocide, also referred to as the United Nations' Genocide Convention (1948), refers both to prevention and to the punishment of the crime of genocide, however, the Convention focuses on the second aspect rather than on the first. The concept of prevention is repeated in Article 1 of the Genocide Convention, however, no particular consequences follow. Nevertheless, the punishment of the crime of genocide or even the threat to punish it is meant to have a preventive effect. In that respect the Genocide Convention is not different from national criminal law. Apart from that, some of the acts referred to in Article 3 of the Genocide Convention have a preventive dimension. The prosecution of conspiracy, or of attempts of public incitement to commit genocide, is an attempt to fight future occurrences of genocide. Another preventive element can be found in Article 8. According to that provision, any contracting party may call upon the competent members of the United Nations to take such action as considered appropriate for the prevention and the repression of acts of genocide.

This rudimentary mechanism is all that remained from a more substantial provision in the draft of the Genocide Convention prepared by the secretariat. According to the scholar Nehemiah Robinson, the secretariat draft contained an elaborated prevention mechanism. Article 12 of that text, which was titled "Action by the United Nations to Prevent or to Stop Genocide," stated that, irrespective of the deterring function of penalizing genocide, contracting parties may have the right to call upon the competent organs of the United Nations to take measures for the suppression and prevention of such crimes. The secretariat obligated states to do everything in their competence and support any actions of the United Nations to prevent or to stop genocide. In particular, the United States had some doubts about these provisions whereas the Soviet Union pushed for an even stronger formulation that would have obliged all states to report genocide to the Security Council. The consequence would have been that measures could have been taken in accordance with Chapter 7 of the United Nations (UN) Charter. In 1973 the provision of Article 8 of the Genocide Convention was included in the Convention against Apartheid.

Scholarly opinions differ as to the relevance of Article 8 of the Genocide Convention. Several writers dismiss its relevance. Others, such as Hans-Heinrich Jescheck, have indicated that Article 8 provides the Security Council with a basis to take action, which, in view of Article 2 of the UN Charter, was necessary to include. This argument was based upon the assumption that the Security Council could only act in cases or situations falling under Article 39 of the UN Charter and that genocide or crimes against humanity could not be qualified as such. However, because the Security Council has developed the practice that significant and widespread human rights violations may be qualified as a threat to international security, Article 8 of the Genocide Convention has lost some of its relevance.

Despite these elements that refer to prevention, the Genocide Convention has shied away from providing a genuine mechanism for the prevention of genocide. The reasons for that are open to speculation. The prevailing reason might be the fear that any attempt to set up the respective mechanism would mean an infringement into the internal affairs of a state and an erosion of Article 2, paragraph 7 of the UN Charter as it was understood in 1948. Only the increasing relevance of international human rights standards—which was initiated with the Universal Declaration on Human Rights and the Genocide Convention—has changed international law in this respect. Meanwhile it is untenable to argue that serious violations of internationally protected human rights are an internal affair of any given state. The international community of states may intervene or may be under an obligation to take action to redress the situation.

Preventive Measures under Different Human Rights Agreements

The Human Rights Committee, the Committee on Economic Social and Cultural Rights, the Committee on the Rights of the Child, and the Committee on the Elimination of Racial Discrimination have adopted procedures on preventive action. These include early warning and urgent procedures as a guide for the committees' future work concerning possible measures to prevent in a more effective way any violation of the respective conventions. This includes actions taken to prevent genocide, and even a situation that may lead to genocide. This approach was taken upon the recommendation of the UN General Assembly in the context of the Agenda for Peace. As far as conceptuality and the implementation of such procedure are concerned, the Committee on the Elimination of Racial Discrimination has developed the most systematic and far-reaching practice. Like the other human rights treaty bodies, the Committee was particularly induced to establish such a procedure by the events in the former Yugoslavia and in the Grand Lakes Region of Central Africa. The members of the Committee felt that the regular monitoring of the human rights situation in these regions had proven to be inadequate to prevent the occurrence or reoccurrence of genocide.

Preventive actions of the Committee on the Elimination of Racial Discrimination include early warning measures to address existing structural problems that might escalate into conflicts. Such a situation calling for early warning is warranted when the national procedures for the implementation of human rights are inadequate or there exists the pattern of escalating racial hatred and violence, racist propaganda, or appeals to racial intolerance by persons, groups, or organizations, notably by elected or other officials. The criterion for initiating an urgent procedure, according to the decision of the Committee, is the presence of a pattern of massive or persistent racial discrimination.

The reaction in its preventive functions and in response to problems requiring immediate attention are similar under all the early warning procedures. The Committee on the Elimination of Racial Discrimination will first exhaust its advisory function vis-à-vis the respective state party. The Committee may address its concern, along with recommendations for action, to all or any of the following: the state party concerned, the special rapporteur established under a Commission of Human Right Resolution, the Secretary-General of the UN, and all other human rights bodies. The information addressed to the secretary-general may, in the case of urgent procedures, include a recommendation to bring the matter to the attention of the Security Council. In this case the Committee may appoint a special rapporteur.

An important mechanism of a nonprocedural character meant to prevent racial discrimination and genocide is the obligation of states to prohibit hate speech and to ban organizations advocating racial intolerance. The Genocide Convention lacks a provision to address this, although other human rights instruments have addressed issues of hate speech.

Article 7 or the Universal Declaration of Human Rights, adopted the day after the Genocide Convention, contains a rudimentary reference to limitations to the freedom of speech by protecting against the incitement of discrimination. Article 29 of the Universal Declaration further opens the possibility for states to limit the enjoyment of fundamental rights and freedoms, including the freedom of expression, for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just requirements of morality, public order, and the general welfare in a democratic society. This covers limitations on the freedom of speech with the view to eliminate hate speech and hate propaganda as well as a denial of the Holocaust.

A more focused provision obligating states to limit freedom of speech is contained in the Convention on the Elimination of All Forms of Racial Discrimination. The Committee considered this provision to be of prime importance for the implementation of the Convention against racial discrimination. According to the provision, it is mandatory that states not only enact appropriate legislation—which, in fact, means enactment of criminal law—but also ensure that such criminal law is effectively implemented. The said provision equally obliges state parties to the Convention against Racial Discrimination to prohibit organizations with a racist program and make the participation therein a criminal offense. The Committee has frequently emphasized the importance of this provision, although several states have stated that their constitution would not allow them to prohibit and dissolve such organizations. Those state parties that for reasons of their national legal order cannot implement this obligation are called upon to be of particular vigilance. This provision raises particular legal problems in respect to political parties promoting racist ideologies because the dissolution of political parties may be the means to preserve the domination of a ruling regime. Under the conditions of a democratic society, it may be argued that it is preferable to fight racist attitudes and ideologies within the framework and the means of a democratic discourse rather than through repressive means. Past experience, however, proves that in periods of transition and of economic or political instability this may not be effective enough to protect the society from racial tensions or racially motivated violence.

The International Covenant on Civil and Political Rights also contains provisions providing for the limitation of fundamental rights, including the freedom of expression and of association, which may be used to prevent the incitement of racial hatred or violence. The Covenant recognizes that the human right of freedom of expression is subject to special duties and responsibilities. It imposes an obligation upon states to prohibit any adversarial speech of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. Further, the Covenant provides for restrictions to the freedom of expression by law necessary to respect the rights and reputations of others or for the protection of national security or of public order. This would cover hate speech and hate propaganda as referred to in Article 20 of the Covenant. Although the European Convention on Human Rights does not include an obligation to prevent hate propaganda, it is held that hate propaganda is not protected by Article 10 of the Convention, which includes freedom of expression. In the Jersild v. Denmark case in 1994, the European Court of Human Rights agreed that the freedom of expression provision of the European Convention on Human Rights should be interpreted, "to the extent possible, so as to be reconcilable with its obligations" under the International Convention for the Elimination of Racial Discrimination. The freedom of speech provision in the American Convention on Human Rights is broader than in the other international instruments. However, despite its large vision of freedom of expression, the provision also contemplates the case of racist propaganda. Article 13, paragraph 5, of the Convention is more or less identical with Article 20 of the International Covenant on Civil and Political Rights.

Whereas Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination obliges states to take action against "incitement to, or acts of such [racial] discrimination" the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Declaration on Race and Racial Prejudice addresses the root problem of racial prejudices. It reaffirms that all human beings belong to a single species and are descended from a common stock; they are born equal in dignity and all form an integral part of humanity. The Declaration further emphasizes that all individuals and groups have the right to be different, to consider themselves as different, and to be regarded as such. However, the diversity of lifestyles and the right to be different may not, in any circumstances, serve as a pretext for racial prejudice. Apart from stating these principles and declaring theories on racial superiority or inferiority as being without scientific foundation, the Declaration is moot when it comes to describing actions to be taken by states.

The aforementioned measures discussed are of a "repressive" nature, in as much as they provide for the criminal prosecution of genocide or for the prosecution of preparatory acts as provided for in Article 3 of the Genocide Convention or for the repression of acts that may prepare the political or ideological ground for inter-ethnic strife or intolerance. Less attention has been paid to measures meant to positively influence society, such as education and information.

Positive measures are touched upon in Article 7 of the Convention on the Elimination of all Forms of Racial Discrimination. The Convention does not outline specifically the appropriate actions for states to take. Most social scientists agree the teaching of human rights, in general, and the principles enshrined in the UNESCO Declaration on Race and Racial Prejudice, in particular, should be included into the curriculum of schools at all levels. Many call for curriculum that includes information on the Holocaust and other occurrences of genocide or similar events after World War II. However, it is up to individual states to develop mechanisms that are most suitable for the education of tolerance. The UNESCO Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War (1978) refers to the role mass media may play in stigmatizing genocide.

Conclusion

Democratic societies that perceive themselves as pluralistic and those societies that believe that ethnic or religious pluralism is an enrichment rather than a weakness are less likely to fall under the spell of racist theories. The Genocide Convention is meant not only to prosecute those having committed the crime of genocide but also to prevent the development of genocide. Later international human rights instruments place a heavy emphasis on preventing genocide by providing states with the means to suppress attitudes or ideologies of racial superiority. Historians agree that more emphasis should be placed on educational efforts; for example, helping children strive for a better understanding of the world's different cultures, lifestyles, and religions. Other historians have suggested an effective system for the protection of minorities.

SEE ALSO Denial; Early Warning

Rüdiger Wolfrum