For the past 18 months, ever since February 29, 2020, when President Donald J. Trump Jr. finalized a deal with the Taliban to withdraw all US troops from Afghanistan by May 1, 2021, international organizations and civil society groups have been warning of the potential for increased violence and potential mass atrocities in the country. As stalled peace processes raised concerns about the Taliban’s intent following the withdraw of US forces, those concerns sharpened into more increasingly urgent warnings to the Biden Administration. With the collapse of the Afghan government, the reality is that the risk of atrocities for women and girls, human and women’s rights activists, and ethnic and religious minorities are going to increase dramatically under Taliban rule. On August 17, 2021, even the US Government acknowledged that atrocities were occurring in the lead up to the current crisis and that the situation has gotten worse since the Taliban has advanced.
As the Biden administration moves to address both the humanitarian and political crises the poorly executed withdraw from Afghanistan has created, one thing is abundantly clear: Afghanistan demonstrates the need for atrocity determination procedures to be removed from the hands of political decision makers and put under the auspices of the US.Government’s Atrocity Early Warning Task Force.
The consequences of the policy decision to withdraw are going to result in increased risk of atrocities and the US is legally required to act to prevent these atrocities, not just under the 1948 Convention to Prevent and Punish the Crime of Genocide, but under its own domestic legislation, the Elie Wiesel Genocide and Atrocities Prevention Act. That action cannot be held hostage to a political decision to bury public criticism and disagreement over the administration’s policies regarding Afghanistan by ignoring the requirements of the Elie Wiesel Act through inaction. But, to put it bluntly, there is going to be significant political pressure, already demonstrated by President Biden himself and members of Congress, to frame the fallout of the withdraw from Afghanistan as the result of the failure of the Afghan military, Afghan political leadership, and Taliban advances and ignore the hard work ahead to try to accomplish the goals of the Elie Wiesel Act.
Atrocity Determinations in the Past
The United States has been exceptionally sparing in its willingness to issue public determinations of atrocity crimes, especially those that rise to the level of genocide. In modern times, the US issued genocide determinations only six times (Bosnia, Rwanda, Iraq, Darfur, ISIS, China). As Todd Buchwald and Adam Keith noted in their seminal report, “By Any Other Name,” there has never been a formal policy in place on how the State Department should go about making these decisions.
Buchwald and Keith noted that “the assessment of high-level officials of how a genocide statement would affect other US policy interests played an important role in accounting for whether the process was set in motion.” Of course, any such pronouncement from the executive branch is inevitably going to be affected by political calculations. Officials are presenting evidence to a policymaker, not a judge. The issue in question is not being treated as a criminal law determination that will result in sentencing, but rather a political judgment that may cause the US to pursue diplomatic, economic, or even military actions to mitigate or prevent an ongoing atrocity crime.
Myanmar as a Case Study
The process of actually making the determinations is actually better understood than the reasons why some countries are reviewed and others are not. It is long past time that the decision to initiate these reviews be a regularized process, not a political choice subject to the whims of press coverage, diplomatic inconvenience, or economic implications. Let’s use the situation of the Rohingyan people in Myanmar, where all the hallmarks of genocide are also visible, as an example. Indeed, in Myanmar, we have even more relevant information, including the robust and expansive documentation by the Independent International Fact Finding Mission on Myanmar, which then made its information available to the Independent Investigative Mechanism for Myanmar; the extensive reporting by NGOs and civil society organizations; and first-hand victim reports from the estimated more than 900,000 Rohingyan refugees who have fled to refugee camps in Bangladesh. Despite having repeatedly received briefings and updates from NGOs about the existence of documented atrocity crimes ongoing in Rakhine State and having compiled this data for itself back in 2018, the US State Department has continued to remain silent about the actions of the Tatmadaw and the Myanmar government. It’s been more than six months since Secretary Blinken’s affirmation during his nomination hearing that he would personally oversee the determination in the case of the Rohingya if appointed. Since then, both President Biden and the State Department have been asked repeatedly about the lack of a determination and the ongoing violence by the Tatmadaw, including ongoing atrocities against ethnic minorities and democracy activists and the weaponization of COVID-19 by the junta.
It is entirely understandable why any administration would want the flexibility to choose when and where it would and when and where it would not take up the question of whether genocide has occurred in a country. Calling out a government for the way it is mistreating its citizens has always been a challenge under post-Westphalian notions of national sovereignty. “Naming and shaming” has been challenged in its efficacy and has been seen as a pretty good way to guarantee that a government’s own less-than-admirable practices will be called out by the target of such a pronouncement. It can also limit the tools that the US government might use to engage with offending nations. It is tough to encourage positive behavior by one’s foreign government counterparts as an ambassador or embassy desk officer when one’s higher-ups are accusing their government of the worst crimes known to humanity.
Political Implications of Regularizing Atrocity Determinations
Giving the State Department room to choose not to make an official determination might be acceptable if the US were actively working behind the scenes, perhaps wielding the threat of such a determination, to generate change. The effectiveness of that approach is highly doubtful, given the ongoing instability in the top 10 countries at risk of experiencing a mass atrocity event. It is fair to ask whether, if the behind the scenes negotiations haven’t worked, the public calling-out of ongoing atrocity crimes will serve any better effect. The simple truth is that we don’t know, but it will accomplish certain other objectives. First, as we have seen with the ultimate US recognition of the Armenian Genocide, future generations will not let a lack of recognition during a “politically sensitive moment” prevent them from calling for the appropriate designation. Second, the world still sees meaning when the US government identifies a situation as being an atrocity. One can see this in the recent response by Chinese government officials after the Third Annual Report to Congress on the Elie Wiesel Act called the Communist Party out by name on its treatment of the Uyghur population. Finally, and currently lacking in US law and foreign policy, there should be consequences to such a determination.
It is a cruel joke that the continued perpetration of an ongoing genocide against the Rohingyan people resulted in no formal changes to the US government’s foreign aid and assistance programs, but within 72 hours of the military coup, the provisions of the State Foreign Operations and Related Programs legislation mandated changes to US foreign assistance and the State Department spokesperson was addressing it in the daily briefing.
Managing the Interagency Process
The good news is that there are already systems in place that can take on this process without too much additional effort. The Atrocity Early Warning Task Force and the dedicated career civil servants who staff it have been striving to institutionalize the goals of atrocity prevention, as required by the Elie Wiesel Act. In fact, the Act explicitly requires that the US government conduct “a global assessment of ongoing atrocities, including the findings of such assessment,” and the “countries and regions at risk of atrocities, including a description of specific risk factors, at-risk groups, and likely scenarios in which atrocities would occur.” This already requires significant research into situations where the government believes an atrocity crime may occur.
This is just one step short of what would be needed for a reliable, depoliticized process of official determinations by the State Department. All that would be needed in addition is the requirement that this evidence be presented to the Secretary of State for a formal determination. The Secretary may decline to make that determination, but the evidence would have been presented, regardless of the political factors, and the underlying information would be reported to Congress regardless of the political decision made. Yes, there would still be potential for those political appointees to avoid inconvenient and diplomatically challenging outcomes. But the Elie Wiesel Act reporting structure actually allows for some elements to be put into a classified annex. Civil society and NGO actors are generally opposed to this, outside of legitimate intelligence community concerns, but if the price for forcing the State Department to actually engage with the ongoing atrocity situations in the world via a formal process is that some of these determinations are not made known publicly, we will cope.
The Pressing Need
Circling back to the current situation in Afghanistan, we know that there already existed ongoing atrocities committed by the Taliban in Afghanistan. The International Criminal Court continues to investigate these crimes and the new prosecutor, Mr. Karim A. A. Khan, has released a statement indicating the ICC is watching for further violations of the Rome Statute by the Taliban and has the authority to investigate evidence of such violations. While it may be politically inconvenient for the Biden administration to have to commit staff, spend resources, and dedicate time to preventing, mitigating, and responding to mass atrocities in a country it has just done its best to extract itself from, the international and domestic laws the US government is bound by require that they act. Political inconvenience should not govern the decision to recognize the reality on the ground in Myanmar, Afghanistan, or any other jurisdiction where American political interests may wish to ignore the inconvenient truth of the reality of atrocity crimes.
We owe it to the world and ourselves to have a more regular process in place to guide these decisions. Now is the time to make these critical choices more than just an exercise of realpolitik. Now is the time to live up to our own aspirational language and fulfil the promise of “never again.”
D. Wes Rist is the Deputy Executive Director of the American Society of International Law and chair of the Elie Wiesel Act Implementation committee, Prevention and Protection Working Group. All views expressed herein represent the author’s personal perspectives and are not the official views of ASIL or PPWG.
Suggested citation: D. Wes Rist, Studied Ignorance: The Unacceptability of the State Department’s Lack of Atrocity Determination Process, JURIST – Professional Commentary, August 30, 2021, https://www.jurist.org/commentary/2021/08/D.Wes-Rist-atrocity-determination-Afghanistan/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
