Masters International Law Literature Review Sample

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Literature Review

Global history has been occasioned by cycles of violence based on different parameters such as geographical location, gender, race, ethnicity, and religion. Genocide, the worst form of violence, has resulted in detrimental social, economic, and environmental impacts. As a concept, however, genocide has caused debate among scholars regarding its correct definition, and Kuper defines it based on the losses it inflicts on society in all historical periods.It effectively captures the cases that occurred long before the concept’s invention, such as the Holocaust of the second world war.

Raphael Lemkin developed the concept of genocide in his book Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. According to Lemkin, genocide refers to various actions in a coordinated plan aiming to destroy the essential foundations of the life of specific groups to annihilate people in those groups.The concept was then adopted by the United Nations Convention on genocide to eliminate political and social genocide. Article 2 of the Genocide Convention defines it as committing any of the acts enlisted in the article to destroy, in part or whole, a national, ethnic, racial, or religious group.Much scholarly debate arose around the omission of politicide and ethnocide from the definition by Lemkin. Still, given that ethnocide involves the destruction of culture and ethnic groups, it is well captured in the Convention’s context used today.

The United Nations genocide convention aimed to eliminate human atrocity. However, the worst genocidal events occurring in the 20^th century call for a reevaluation of the measures taken towards its mitigation. According to Akhavan, little was achieved by adopting the Convention, followed by the inhumane extermination of millions of people in Ethiopia, Uganda, Bangladesh, and Cambodia.The failure of the established international law was the cause of the lamentation of the jurists who felt it had little impact on the perpetrators. The optimism was renewed by the end of the cold war in 1991 and the proclamation of the principle of non-interference with essential domestic jurisdiction.This formed the foundation for the establishment of the International Criminal Tribunal for Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), with which the international community sought to eliminate the culture of impunity.

Contemporary genocide prevention has evolved through history to take a more liberal orientation. Modern measures encompass a normative liberal orientation that focuses on equality, democratic accountability, and freedom.It supports the human rights regime under the United Nations Declaration of human rights institutionalized via the rule of law enacted by different international conventions, treaties, laws, and norms.owever, the solid framework laid by international law has proved ineffective in working out eradication. The military intervention failed in both the case of Rwanda and Yugoslavia, with extreme effects occurring in the presence of United Nations troops.The events of the two genocidal occurrences inspired the transformation in the approaches from reactive to preventive interventions.The ultimate result was the total structure change with an abundance of intellectual and legal measures.

The United Nations and the Convention on genocide form a fundamental basis for developing mechanisms that would secure the world against the cruel scourge of genocidal events in the future. The establishment of the Carnegie Commission on Preventing Deadly Conflict, which addressed global threats to peace and developed new ideas for preventing and resolving serious conflicts, strengthened the focus on civilian protection.Further, the proclamation of the “Responsibility to Protect” (R2P) in the World Summit Outcome of the united nations in 2005 sought to reinforce the commitment of the international community to ensuring that it never again fails to stop the atrocity, war crimes, community cleansing, and human destruction was an important milestone.
However, stokes and Gabriel argue that such an approach worsens the ambiguity about what should be covered by genocide making prevention hard.Waxman associates the failure of the existing mechanisms with a lack of political will to act and the absence of military intervention forces from external countries and the international community.This is further cemented by the notion of sovereignty that deters the international community from stepping in despite the broad acceptance of the responsibility to protect. There has been a dispute over the right approach to be taken, with advocates for humanitarian intervention firmly holding on to the “right to intervene” using military mechanisms against the will of the government of the involved country.Another group is the defenders of the traditional rights of state sovereignty, making a case that internal affairs were of no concern to the rest of the world.

The international legal system is blamed for constraining swift action due to extensive consultations involved before deciding on action. It is also important to note that there is a developed tendency to focus on atrocities after the occurrence amidst conflicting priorities and humanitarian fatigue.In most cases, the measures taken, such as military interventions and recommendations, are too late, allowing atrocities to succeed.In most cases, conflicts would have escalated to a greater scale, and mitigation is highly limited to solid moral leadership and applying force. Very few institutions are inclined to adopt such costly measures. Mediation adopted by the UN and the international community to resolve disputes is often obscure and ineffective, leaving the cases to the tribunal that focuses on trying the perpetrators. However, reliance on the tribunals such as the International Criminal Tribunal of Rwanda and the International Criminal Tribunal for Yugoslavia is perceived as a mechanism only meant to make up for the failures of the international community to prevent genocide.
Trials by the tribunal are defective since they do not guarantee retribution to the victims and do not try all the guilty.It does little to meet the needs of the victims and enhance healing. While prevention is the most desirable among the various methods of eradicating genocides, the inherent uncertainty and unpredictability limit its adoption. Prevention requires a deeper insight into the norms, institutions, and tools for policymakers to actualize it. Therefore, effective prevention depends on accurate and timely prediction of human atrocities and early management through feasible and modest measures.
There is a growing need to remodel the normative and institutional mechanisms for preventing genocide. While there is no guaranteed effectiveness from often proposed radicle reforms to international law in the short term, steps should be taken to improve the sensitivity of the UN security council and other institutions.Unlike the post-genocide measures, deterring and stopping it before it happens is easier and averts the human toll. It is the mandate of the security council to ensure international peace and security. However, the form of interventions or assistance recommended by the commission depends on the situation.

Bibliography

Akhavan, Payam. “Preventing Genocide: Measuring Success by What Does Not Happen’ (2011).”Criminal Law Forum. Vol. 22. At 1.

Bellamy, Alex J. “Mass atrocities and armed conflict: Links, distinctions, and implications for the responsibility to prevent.” (2011): at 15

Brandys, Devonne. “Never Again, But Always Too Late: Failed Preventive and Mediating Measures of the United Nations.”The Lyceum1.1 (2011): 54-67.

Carnegie Commission on Preventing Deadly Conflict, Final Report (New York: Carnegie Corporation of New York, 1997), 9.

Evans, Gareth.The responsibility to protect: ending mass atrocity crimes once and for all. Brookings Institution Press, 2009, 34.

Keeler, Joseph A. “Genocide: Prevention Through Nonmilitary Measures.”Mil. L. rev.171 (2002): 135.

Kunz, Josef L. “The United Nations Convention on Genocide.”American Journal of International Law43.4 (1949): 738-746.

Kuper, Leo.Genocide: Its political use in the twentieth century. Yale University Press, 1981. P.11

Lemkin, Raphael.Axis rule in occupied Europe: Laws of occupation, analysis of government, proposals for redress. The Lawbook Exchange, Ltd., 2005. Chapter 9, p.78.

Milojević, Momir B. “The principle of non-interference in the internal affairs of states.”Facta Universitatis-series: Law and Politics1.4 (2000): 427-447.

Roach, Steven C. “Humanitarian Emergencies and the International Criminal Court (ICC): Toward a Cooperative Arrangement between the ICC and UN Security Council.”International Studies Perspectives6.4 (2005): 431-446.

Stokes, Peter, and Yiannis Gabriel. “Engaging with genocide: The challenge for organization and management studies.”Organization17.4 (2010): 461-480, 463.

Thaler, Mathias. “Naming Violence.”Naming Violence. Columbia University Press, 2018.

Verdeja, Ernesto. “Critical genocide studies and mass atrocity prevention.”Genocide Studies and Prevention: An International Journal13.3 (2019): 10.

Waxman, Matthew C. “Intervention to stop genocide and mass atrocities.”Washington DC(2009, 4.

Wiebe Arts, “Preventing Genocide Through Military Intervention: Peacekeeping Troops in the “Responsibility to Protect” Era” in Rene Provost & Payam Akhavan, eds, Confronting Genocide (Springer, 2011)117.