A TROCITIES PREVENTION & RESPONSE: A GOOD GOVERNANCE BLUEPRINT
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A
TROCITIES PREVENTION
& RESPONSE: A GOOD
GOVERNANCE BLUEPRINT
DR. BETH VAN SCHAACK
OCTOBER 2021ABOUT the Atrocity Prevention
and Response Project
The Atrocity Prevention and Response Project seeks to further leading research on the legal and
policy frameworks of atrocity prevention, including the principle of the responsibility to protect and
the role of justice and accountability, and promotes bipartisan and international support for atrocity
prevention through collaboration, education, and advocacy. The project is part of the Atrocity Crimes
Initiative, a joint effort of the ABA’s Criminal Justice Section and Center for Human Rights to prevent
genocide, war crimes, and crimes against humanity, and to ensure perpetrators are held accountable.
ABOUT ABA Center for Human Rights
ABA Criminal Justice Section
The American Bar Association Center for Human Rights mobilizes lawyers to help threatened advocates,
protect vulnerable communities, and hold governments accountable under law.
The Unified Voice of Criminal Justice — With its diverse membership of judges, private criminal
defense attorneys, prosecutors, public defenders, academics, and other professionals, the ABA
Criminal Justice Section is uniquely situated to bring all the various actors to the table to address
today’s most pressing criminal justice issues.
ABOUT the Author:
Dr. Beth Van Schaack
Dr. Beth Van Schaack is the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School
where she teaches in the areas of international human rights, international criminal law, and human
trafficking, among other subjects, and has been the Acting Director of the Human Rights & Conflict
Resolution Clinic. She is also a Faculty Fellow with Stanford’s Center for Human Rights & International
Justice. Prior to returning to academia, she served as Deputy to the Ambassador-at-Large for War
Crimes Issues in the Office of Global Criminal Justice of the U.S. Department of State under Secretaries
Clinton and Kerry. In that capacity, she helped to advise the Secretary of State and the Under Secretary
for Civilian Security, Democracy and Human Rights on the formulation of U.S. policy regarding the
prevention of and accountability for mass atrocities, such as war crimes, crimes against humanity,
and genocide. Van Schaack is a graduate of Stanford University (B.A.); Yale Law School (J.D.); and
University of Leiden School of Law (PhD).
ACKNOWLEDGMENTS
This paper was authored by Dr. Beth Van Schaack. The views expressed herein represent the
opinions of the author. They have not been reviewed or approved by the House of Delegates or the
Board of Governors of the American Bar Association and, accordingly, should not be construed as
representing the position of the Association or any of its entities. Furthermore, nothing in this
report should be considered legal advice in a specific case. The Atrocity Crimes Initiative would like
to thank Dr. Van Schaack for authoring this white paper, members of the Atrocity Prevention and
Response Project’s board of advisors for their review and comments, and Kristin Smith and Michael
Pates for managing its publication.
ivTABLE OF CONTENTS
I. Introduction..........................................................................................................................................1
II. Background: Origins & Evolution of the Atrocities Prevention
and Response Policy Portfolio......................................................................................................5
HISTORICAL ORIGINS..........................................................................................................................5
OBAMA ADMINISTRATION, PSD-10, & THE ATROCITIES PREVENTION BOARD.................................6
TRUMP ADMINISTRATION POLICIES....................................................................................................7
ELIE WIESEL GENOCIDE & ATROCITIES PREVENTION ACT................................................................8
III. COMPONENTS OF A ROBUST ATROCITIES PREVENTION AGENDA..................................10
A CENTRALIZED BUT INTEGRATED INTERAGENCY PROCESS...........................................................10
PUBLIC ENGAGEMENT......................................................................................................................12
PRIORITIZE UPSTREAM WORK............................................................................................................12
FOCUSED INTELLIGENCE & INFORMATION GATHERING & DISSEMINATION............................13
STRATEGIC MESSAGING & LEGAL DETERMINATIONS......................................................................15
EXPANDING THE ATROCITIES PREVENTION TOOLKIT.......................................................................16
IN THE FIELD: CIVILIAN & MILITARY RESPONSES FOR PREVENTION & MITIGATION............18
MAXIMIZING SANCTIONS & ECONOMIC LEVERS...........................................................................19
DEDICATED FUNDING........................................................................................................................20
BUILDING UPON THE LEGISLATIVE FRAMEWORK IN CONGRESS....................................................21
EXPAND MULTILATERAL EFFORTS......................................................................................................23
DEDICATED STAFFING & TRAINING..................................................................................................28
IV. CONCLUSION..................................................................................................................................29
Front Cover: United Nations General Assembly Hall in the UN Headquarters, New York, NY
Photo credit: Basil D Soufi, 2011
All photos are modified and credited accordingly under Creative Commons license (CC BY-SA 3.0).
Copyright © 2021 by the American Bar Association. All rights reserved.
1050 Connecticut Ave. N.W., Suite 450, Washington, D.C. 20036
vAtrocities Prevention & Response: A Good Governance Blueprint
Dr. Beth Van Schaack1
I. INTRODUCTION
The Biden-Harris administration took office with a of nations’ foreign policy programs, more can be
daunting list of to-dos occasioned by a relentless done domestically to address this country’s own
pandemic, a wholesale retreat from democratic history of racial and other forms of identity-based
values, and pervasive conflict and instability— violence and abuse.
all on a global scale. Re-enlivening the United
States’ atrocities prevention and response Promoting a robust system of atrocities
framework—initiated by President George W. prevention and response has not traditionally
Bush and operationalized during the presidency been considered a hallmark of good governance;
of Barack Obama—should be among the long- however, an enlightened notion of sovereignty
term priorities. This paper briefly reviews the as responsibility has taken hold in some
history of U.S. engagement in this domain before international relations circles.4 The 2005 World
offering a number of concrete recommendations Summit Outcome Document articulated global
for the new administration.2 It endeavors to do so obligations in this regard,5 which states have
in a way that reflects the current geopolitical and begun to internalize, including the United States
domestic realities, including President Joe Biden’s in its 2010 and 2015 National Security Strategies
articulated priorities to focus on his domestic under President Obama,6 both of which endorsed
policy agenda, global democracy promotion, and the Responsibility to Protect doctrine. It is now
a more humble and human rights-oriented foreign widely recognized that mass atrocities threaten
policy. Although the focus is on the United States, international peace and security in a number
it should go without saying that this work must be of ways, including by destabilizing entire
done multilaterally, and there are many ongoing regions through conflict diffusion; generating
efforts at the United Nations and within regional uncontrolled migration, internal displacement,
configurations ripe for partnership.3 Although this and refugee flows;7 emboldening perpetrators
work has historically been considered an element and creating openings for violent extremism
1 This article expands upon a shorter post that appeared in the Good Governance series of the Justice Security blog in
October-November 2020. See Beth Van Schaack, Good Governance Paper No. 13: Atrocities Prevention and Response,
Just Security (Oct. 29, 2020). Many thanks to members of the Atrocity Prevention and Response Project (and especially
Charlie Brown, Lee Feinstein, Nathan Kirschner, David Kramer, Tod Lindberg, Steve Pomper, and Wes Rist) as well as the
participants in the Atrocities Prevention Study Group, convened by James Finkel and the Henry Stimson Center, for their
extremely helpful comments on an earlier draft of this paper and to Sonia Mahajan for her research assistance. I am
grateful to the American Bar Association’s Center for Human Rights—and particularly Kristin Smith and Michael Pates—for
disseminating this white paper, although the positions expressed herein (and all errors) are my own.
2 See also Lee Feinstein, Council on Foreign Rel., CSR No. 22, Darfur and Beyond: What Is Needed to Prevent Mass
Atrocities (2007) for conceptual overview and implementation recommendations.
3 See, e.g., U.N. Office on Genocide Prevention and the Responsibility to Protect.
4 Francis M. Deng et al., Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution Press 1996).
5 2005 World Summit Outcome, G.A. Res. 60/1, U.N. Doc. A/RES/60/1 (Oct. 24, 2005).
6 See President Barack Obama, National Security Strategy of the United States (2010); President Barack Obama, National
Security Strategy of the United States (2015). See generally Samuel Andrew John Jarvis, Obama’s Adoption of the
Responsibility to Protect: A Constructivist Analysis, J. Pol. & Int’l Stud. 9 (2013).
7 Idean Salehyan, Refugees and the Study of Civil War, Civil Wars 9:2 at 127 (2009).
1to flourish;8 disrupting economic relations and atrocities and genocide is a core national security
undermining progress on economic development;9 interest and a core moral responsibility of the
contributing to state fragility; creating grievances United States.”13 During his tenure, the atrocities
that extremists can exploit; necessitating costly prevention portfolio was significantly elevated
ex post interventions; and undermining the within U.S. foreign policy, from the perspective
credibility of international norms, especially of bureaucratic restructuring and staffing as well
when the international community is perceived as a realignment of priorities, the instantiation
to be standing by idle while violence unfolds. All of “patterns of cooperation” among disparate
told, it is “morally, politically, financially, and agencies,14 and the opening of a new situs of
prudentially better to prevent atrocity crimes,” multilateral engagement. Although the Obama
including genocide, crimes against humanity, and administration made solid progress along a number
war crimes, “than to react to stop them once of fronts, and was able to respond vigorously
under way,” as argued by Alex Bellamy in his to certain atrocities at crucial moments,15 the
important paper on “structural prevention” for concrete results by the end of Obama’s tenure
the Stanley Center for Peace and Security,10 which remained mixed by all accounts.16 Furthermore,
has championed this work. Given the disruptive, several key initiatives stalled, such as creating
destructive, and costly effects of mass violence, new atrocities prevention sanctions authorities17
individual states should be encouraged to make and passing legislation to fill gaps in Title 18,
a sovereign commitment to work together on the federal penal code.18 So, Obama left office
prevention to better protect those at risk. having launched, but not finished, an initiative to
Although it is often impossible to know whether strengthen U.S. atrocity prevention capacities.
any particular intervention has been effective
if situations remain calm, we do know that “[i] President Donald Trump pursued a transactional
naction can have grave consequences,” as astutely foreign policy that promised to put “America
observed by Lee Feinstein and Tod Lindberg in First”19 but often left the United States isolated
their valuable report on the need for transatlantic and estranged.20 For the first years of his
cooperation to prevent mass killings.11 administration, the atrocities prevention and
response portfolio remained under the radar
The United States was once in the lead here. while the United States retreated from long-
President Obama was the first U.S. President to held human rights commitments and prioritized
deliberately link the moral obligation to “save protecting religious freedom (a priority to be sure
strangers”12 with the national interests inherent but not one that should eclipse attention to other
to doing so when he announced: “preventing mass vectors of violence).21 In addition to pulling out
8 A Governance Agenda for Preventing Violence in a Fragile World: Mobilizing the International Community to Strengthen State-
Society Relations in Fragile States, Policy, Learning and Strategy Center, U.S. Inst. Peace (Jan. 7, 2020).
9 Anna Khalfaoui, Mass Atrocities: Definition and Relationship with Development, in Peace, Justice and Strong Institutions,
Encyclopedia of the UN Sustainable Development Goals (Walter Leal Filho, Anabela Marisa Azul, Luciana Brandli, Amanda
Lange Salvia, Pinar Gökcin Özuyar, Tony Wall, eds. 2020).
10 Alex Bellamy, Stanley Foundation, Policy Analysis Brief, Reducing Risk, Strengthening Resilience: Toward the Structural
Prevention of Atrocity Crimes (2016) (now Stanley Center for Peace and Security).
11 Lee Feinstein & Tod Lindberg, USHMM Simon-Skjodt Center for the Prevention of Genocide, Allies Against Atrocities: The
Imperative for Transatlantic Cooperation to Prevent and Stop Mass Killings (2017).
12 Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (2001).
13 Megan Slack, President Obama Speaks at the U.S. Holocaust Memorial Museum, White House blog (Apr. 23, 2012).
14 Feinstein & Lindberg, supra note 11.
15 Paige Lavender, Obama: ‘We Broke The ISIL Siege Of Mt. Sinjar In Iraq’, HuffPost (Aug. 14, 2014).
16 John Norris & Annie Malknecht, Center for Am. Progress, Atrocities Prevention Board: Background, Performance, and
Options (2013).
17 See Tres Thompson & Mari Guttman, Stan. Law Sch. Law & Pol’y Lab, Draft Executive Order Blocking Property and
Prohibiting Transactions to Prevent Mass Atrocities (2016).
18 Beth Van Schaack, Crimes Against Humanity: Repairing Title 18’s Blind Spots, in Arcs of Global Justice 341 (Margaret M.
deGuzman & Diane Marie Amann eds., 2018), available at SSRN.
19 Silke Melbye-Hansen, Is the Atrocity Prevention Board Dead Under Trump?, Mantle.
20 Leon Hadar, The Limits of Trump’s Transactional Foreign Policy, Nat’l Interest (2017).
21 Silke Melbye-Hansen, supra note 19.
2from the U.N. Human Rights Council (HRC), the situations,34 such as the genocides unfolding in
Trump administration almost shuttered the State Myanmar and Xinjiang, China.
Department’s Office of Global Criminal Justice (J/
GCJ)22 and the Federal Bureau of Investigation’s There is work to be done by President Biden and
International Human Rights Unit;23 the latter was his foreign policy team to re-prioritize efforts
eventually folded into the Department of Justice’s to strengthen atrocity prevention policies and
Civil Rights Unit,24 not without controversy.25 There toolkits. Most importantly, this endeavor must
were, however, some important developments be accompanied by more deliberate upstream
during the Trump administration in the form of prevention work when it comes to promoting the
far-reaching atrocities prevention and response rule of law and justice sector reforms,35 encouraging
legislation signed into law, such as the Women, economic development, building resilience to
Peace and Security Act of 2017,26 the Elie Wiesel a range of shocks that can trigger violence, and
Genocide and Atrocities Prevention Act of 2018,27 supporting peacebuilding and peacebuilders.
the Caesar Civilian Protection Act of 2019,28 and In this regard, the appointment of Ambassador
the 2019 Global Fragility Act.29 In addition, the Samantha Power as U.S. Agency for International
Trump administration filed a new indictment under Development (USAID) administrator, whose Pulitzer
the U.S. torture statute against Michael Correa,30 Prize-winning book, A Problem From Hell: American
an alleged torturer from The Gambia found living and the Age of Genocide, is the intellectual
in Denver. The last few years also witnessed taproot of this effort,36 bodes well. Furthermore,
increased and dedicated funding from Congress for atrocities prevention and response cannot be
atrocity prevention work and a potent new human pursued in a vacuum. The atrocities prevention
rights sanctions authority31 on which President agenda should be better integrated with adjacent
Obama had tried, but failed, to gain consensus. rubrics, such as counterterrorism and preventing/
This latter tool was deployed,32 but haphazardly.33 countering violent extremism;37 addressing state
The Trump administration—particularly the U.N. fragility; Women, Peace and Security; engaging
mission in New York and with programing launched in conflict prevention;38 protecting civilians39 in
by relevant U.S. embassies—also responded U.S. and partnered operations40 and ensuring
robustly with documentation, information sharing, their protection during peacekeeping activities;41
and sanctions in connection with certain atrocity and providing humanitarian assistance where
22 Key Topics—Office of Global Criminal Justice, U.S. Dep’t State (2020).
23 Beth Van Schaack, State Dept. Office of Global Criminal Justice on the Chopping Block—Time to Save It, Just Security (July 17,
2017); International Human Rights Violations, Fed. Bureau Investigation (2016).
24 Civil Rights, Federal Bureau of Investigation (2016).
25 Beth Van Schaack, EXCLUSIVE: FBI’s War Crimes Unit on the Chopping Block, Just Security (Feb. 10, 2019).
26 Women, Peace, and Security Act of 2017, Pub. L. 115-68 (Oct. 6, 2017).
27 Elie Wiesel Genocide and Atrocities Prevention Act of 2018, Pub. L. No. 115-441 (Jan 14, 2019).
28 The Caesar Syria Civilian Protection Act of 2019 was part of the National Defense Authorization Act for Fiscal Year 2020, Pub.
L. 116-93 (Dec. 20, 2019).
29 The Global Fragility Act was part of the 2020 Consolidated Appropriations Act, Pub. L. 116-260 (Dec. 20, 2020).
30 Beth Van Schaack, Accused Gambian Torturer Arrested in Denver, Just Security (June 11, 2020),.
31 Rob Berschinski, Trump Administration Notches a Serious Human Rights Win. No, really., Just Security (Jan. 10, 2018).
32 See, e.g., Maria Abi-Habib & Dharisa Bastians, U.S. Bars Sri Lankan Army Chief Accused of War Crimes, N.Y. Times (Feb. 15,
2020).
33 The Editorial Board, Trump Sanctions Just More Petty Politics, Boston Globe (Oct. 24, 2020).
34 Gareth Hughes et al., The Trump Administration Targets China with Additional Sanctions, Debevoise & Plimpton LLP (Nov. 17,
2020).
35 John-Mark Iyi, The Role of Courts in the Protection of Civilians, in By All Means Necessary: Protecting Civilians and
Preventing Atrocities in Africa 258 (Dan Kuwali & Frans Viljoen eds., 2017).
36 Samantha Power, “A Problem from Hell”: America and the Age of Genocide (2002).
37 Alliance for Peacebuilding, Policy Brief: Countering Violent Extremism (2018).
38 Alex J. Bellamy, Stanley Found., Policy Analysis Brief, Mass Atrocities and Armed Conflict: Links, Distinctions, and
Implications for the Responsibility to Prevent (2011).
39 Daniel R. Mahanty, What Next for Civilian Protection and the US Government?, Center for Civilians in Conflict blog (2017).
40 Melissa Dalton et al., Center for Strategic & Int’l Stud., The Protection of Civilians in U.S. Partnered Operations (2018).
41 Evaluation of the implementation and results of protection of civilians mandates in United Nations peacekeeping operations, G.A.
Res. 68/787, U.N. Doc. A/RES/68/787 (Mar. 7, 2014).
3needed. As argued by Lawrence Woocher of the Obama launched his atrocities prevention
U.S. Holocaust Memorial Museum, this deliberate initiative at a geo-political moment of great
intersectionality will ensure that the atrocities optimism about what an expansive U.S. foreign
prevention portfolio is not set apart from other policy could accomplish. This moment has given
cognate foreign policy priorities, risks are assessed way to new strategic realities, even as the rhetoric
holistically, and bureaucratic silos that may coming out of the White House articulates a U.S.
result in implicit competition between different commitment to the promotion of human rights—as
functional priorities are dismantled.42 As the new well as stability and security—around the world,
administration begins the process of promoting albeit from a more humble perspective.
democracy and democratic values worldwide, the
atrocities prevention lens remains relevant, given Despite these realities and other compelling
the strong links between regime type and atrocities urgencies, the need for global leadership in
and the evidence that democratic norms offer a atrocities prevention and response has not
key restraint against violence against civilians.43 receded, as events in Ethiopia, Myanmar, South
Sudan, Nagorno-Karabakh, China, Yemen, Syria,
The ideas that follow about what a robust atrocities Iraq, Nigeria, and elsewhere regrettably attest.
prevention foreign policy could look like are If anything, the shocks of a global pandemic, the
articulated with the clear-eyed recognition that enduring throes of populism and authoritarianism,
the collective attention of governments the world and relentless climate change will ensure its
over has turned inward in the face of multiple and continuing urgency. Notwithstanding these other
overlapping crises: a global pandemic, concomitant priorities, polls consistently show that the U.S.
economic decline, worsening economic inequality, public believes that genocide is preventable
and a renewed (and long-overdue) focus on the and supports the United States playing a role in
need to rectify pernicious racial injustices. protecting the most vulnerable around the world
Resources are already strained, making it hard to and promoting accountability for abuses.44 And so,
justify investments in preventative work without this work remains a critical component of good
the action-forcing pressure of an emergent crisis global governance.
(or unassailable empirical proof of the efficacy of
preventative interventions when there is a non-
occurrence of violence). Furthermore, President
The recommendations discussed below suggest avenues the United States should take to
strengthen atrocity prevention norms, governance structures, policies, and resources by:
• reinforcing the interagency process through which emerging atrocities are considered and
discussed (both among policymakers and publicly);
• deepening involvement and expertise across the government (through expanded training,
engagement with civil society and outside research);
• expanding and refining the existing atrocities prevention toolkit (through legislation,
after-action analyses, and holistic policies on economic sanctions, protection of civilians,
and transitional justice policies that can spur adaptive programs and funding);
• continuing to invest in transitional justice efforts around the world; and
• engaging global and multilateral partners to work collaboratively to prevent future
atrocities.
42 Lawrence Woocher, To Prevent Atrocities, Break Bureaucratic Silos, Don’t Build A New One, Just Security (Dec. 15, 2020).
43 Helen Fein, Accounting for Genocide after 1945: Theories and Some Findings, 1(2) Int’l J. Group Rights 79 (1993).
44 United States Holocaust Memorial Museum Unveils New Poll: Americans Believe Genocide Is Preventable, U.S. Holocaust
Memorial Museum (July 24, 2012); Beth Van Schaack, ICC Prosecutor Symposium: Advice for the Incoming ICC Prosecutor—
Engage the U.S. Public Directly, Opinio Juris (Apr. 15, 2020).
4II. BACKGROUND
ORIGINS & EVOLUTION OF THE
ATROCITIES PREVENTION &
RESPONSE POLICY PORTFOLIO
Historical Origins policymakers who had the power to do more.
Indeed, Rwanda was a defining moment for the
In many ways, the United States was essential presidency of William J. Clinton and the careers
to the construction of the international law of many in his inner circle,46 including Susan
paradigm dedicated to preventing conflict and Rice,47 who now heads domestic policy in the
atrocities, to ending impunity for international Biden administration. While tragic, the Rwandan
crimes, and to bringing justice—broadly defined— experience also demonstrates that hope and
to victims and survivors around the world. This inspiration can emerge from cataclysm. Notably,
process began after the Second World War when these events inspired a global effort to sharpen
the United States played a leading role in the the international community’s atrocities
creation of the United Nations, in drafting the prevention tools and to solidify the collective
Universal Declaration of Human Rights, and political will to act in the face of brutality.
in shepherding Allied efforts to establish the
world’s first international war crimes tribunals Former U.S. government official James P.
at Nuremberg and Tokyo. These events helped Finkel offers additional historical details in
to entrench the principle of individual criminal his comprehensive chronicle of the Atrocity
responsibility in international law and establish Prevention Board’s launch,48 but momentum
the international criminal law “canon”: war began to build palpably in 2007 when the U.S.
crimes, crimes against humanity, genocide, and— Holocaust Museum Memorial (USHMM), the
eventually—the modern crime of aggression. At American Academy of Diplomacy, and the U.S.
the time, the field was purely retrospective, Institute of Peace convened a bipartisan and
meting out criminal penalties for the commission quasi-governmental Genocide Prevention Task
of terrible international crimes. Force co-chaired by former Secretary of State
Madeleine K. Albright and former Secretary of
The failure of the international community to Defense William S. Cohen.49 The Task Force’s
halt, or even decelerate, the 1994 genocide mandate was to raise awareness of the
in Rwanda—during which time 800,000 people atrocities prevention imperative and generate
were killed with rudimentary farm implements a set of concrete policy recommendations to
over a period of 100 days—left an indelible enhance the capacity of the U.S. government
stain on the international community.45 It also to respond to emerging atrocity situations that
instilled a profound sense of remorse within involve “large scale and deliberate attacks
the collective conscience of many of that era’s on civilians.” In December 2008, the Task
45 Rwanda genocide: 100 days of slaughter, BBC (Apr. 4, 2019).
46 President Clinton, Address Honoring Genocide Survivors in Kigali (Mar. 25, 1998), text available at Text of Clinton’s
Rwanda Speech, CBS News.
47 Elias Groll, 5 Highlights from Susan Rice’s Diplomatic Career, Foreign Pol’y (June 5, 2013).
48 James P. Finkel, U.S. Holocaust Memorial Museum Center for the Prevention of Genocide, Occasional Papers Ser.
No. 2, Atrocity Prevention at the Crossroads: Assessing the President’s Atrocity Prevention Board After Two Years
(2014).
49 Genocide Prevention Task Force, U.S. Holocaust Memorial Museum et al., Preventing Genocide: A Blueprint for
U.S. Policymakers (2008). At the urging of its Center for Human Rights, the American Bar Association in 2009 formally
endorsed the Task Force’s recommendations as well as the Responsibility to Protect doctrine. See ABA Policy 110
(adopted at Annual Meeting 2009).
5Force released a detailed and highly practical financial and—in certain instances—military means
blueprint for preventative and responsive action. to prevent and respond to genocide and mass
Its recommendations coalesced around five lines atrocities” as articulated in the 2010 National
of effort: improving risk assessment and early Security Strategy.52 In August 2011, he issued
warning tools, undertaking pre-crisis engagement Presidential Study Directive No. 10 (PSD-10),53
in at-risk countries, developing comprehensive declaring the prevention of genocide and other
plans for halting and reversing the escalation of mass atrocities to be a “core national security
violence in crisis situations, deploying a range interest and core moral responsibility of the
of military options short of but also including United States.” PSD-10 directed the National
armed force, and launching a major diplomatic Security Advisor, then Tom Donilon, to launch
initiative to strengthen the international system a 100-day comprehensive review of the U.S.
and the capabilities of partner nations. The Task government’s anti-atrocity capabilities across
Force also produced a number of overarching the interagency process and recommend gap-
recommendations geared toward restructuring filling steps for creating a whole-of-government
the bureaucratic architecture around the atrocity policy framework for preventing and responding
prevention imperative. This work was motivated to mass atrocities.54 In particular, Donilon was
by moral impulses but also the recognition to “conduct[] an inventory of existing tools and
that, when faced with unfolding atrocities, the authorities across the Government that can be
international community often mobilizes too late drawn upon to prevent atrocities [and] identify[]
when opportunities for lower cost actions have new tools or capabilities that may be required .
been missed. As then-Secretary of State Hillary . . in order to be better prepared to prevent and
Rodham Clinton observed, the United States and respond to mass atrocities or genocide.”
its partners should take action before the wood is
stacked or the match is struck, because when the To the disappointment of many, Donilon’s report
fire is at full blaze, our options for responding are remains classified, which made it more difficult
considerably costlier and more difficult.50 for those on the outside to gauge progress on
implementation, find ways to support the work,
Obama Administration, PSD-10, & and apply pressure in the face of inactivity.55
the Atrocities Prevention Board
Adopting one of the Task Force’s central
When he took office, President Obama set recommendations, President Obama in a 2012
about implementing many of the Task Force’s speech at the U.S. Holocaust Memorial Museum
recommendations and institutionalizing a announced the creation of an Atrocities Prevention
normative commitment to the prevention of Board (APB) featuring high-level interagency
atrocities as part of a more values-laden and representation to institutionalize the coordination
multilateralist foreign policy. For example, in of atrocity prevention across the U.S. government.56
2010, he created a new White House director The timing of the launch—as Syria disintegrated
position dedicated to War Crimes, Atrocities, and into mass violence while the world stood by—drew
Civilian Protection51 to reflect an emphasis on controversy.57 The APB was originally chaired by
the need to “mobilize diplomatic, humanitarian, Samantha Power, then NSS Senior Director for
50 Michael Dobbs, What Do Americans Think About Preventing Genocide?, U.S. Holocaust Memorial Museum (July 24, 2012).
51 Sandra McElwaine, Obama Hires a Clooney Confidant, Daily Beast (July 14, 2017).
52 National Security Strategy of the United States (2010), supra note 6.
53 President Barack Obama, Presidential Study Directive on Mass Atrocities (PSD 10) (Aug. 4, 2011).
54 See U.S. Dep’t Army, FM 3-07, Stability, § 3-1 (June 2014) (discussing whole-of-government and unity of effort approach to
promoting international stability).
55 Prevention & Protection Working Group, Letter to President Obama on Atrocities Prevention (May 1, 2013). The 2018 Elie
Wiesel Act (described further below) contains robust annual reporting requirements that include identifying constraints and
recommendations for strengthening US government capacities, regular public reporting of atrocity prevention activities, and
consultation with civil society.
56 Megan Slack, supra note 13; Jonas Claes, Obama Announces Formation of the Atrocities Prevention Board, U.S. Inst. Peace
(2012).
57 Tod Lindberg, How to Prevent Atrocities, Real Clear Politics (Mar. 6, 2013).
6“
Multilateral Affairs and Human Rights. The APB of participating agencies, and catalyzing global
included representatives of the Departments of ‘[N]ever again’ is a
State (DOS), Defense (DOD), Treasury, Justice
(DOJ), and Homeland Security (DHS), the Joint Staff,
challenge to nations.
the U.S. Agency for International Development, It’s a bitter truth — too often, the
the U.S. Mission to the United Nations, the Office world has failed to prevent the
of the Director of National Intelligence (DNI), the killing of innocents on a massive
Central Intelligence Agency (CIA), and the Office
of the Vice President. All members served at scale. And we are haunted by the
the Assistant Secretary level or higher and were atrocities that we did not stop and “
appointed by name by their respective principals. the lives we did not save.
The APB met at least monthly, at which time
they received an intelligence briefing and a deep - President Obama, April 23, 2012 speech
dive into a particular at-risk country. A working- at the U.S. Holocaust Memorial Museum
level “sub-APB” met weekly to generate ideas, announcing the creation of the
track emerging situations, and refine proposals Atrocities Prevention Board
for consideration. This APB machinery focused on
“under the radar” situations that were not already
the subject of devoted interagency processes as
was the case with the “big ticket” crises in Syria, efforts—bilaterally62 and multilaterally63—in the
Libya, the Sudans, and Yemen. Deputies met twice same direction.
yearly, and Principals met yearly, to review the
work of the APB. Trump Administration Policies
Obama pledged to immediately release an Under the Trump Administration, the United States
Executive Order to further institutionalize the largely neglected human rights and international
APB and provide insights into the Board’s work justice issues externally, leaving a policy void on
and priorities, but this was delayed considerably. the global stage.64 This included renouncing the
Executive Order 13729 was finally released in United States’ spot on the U.N. Human Rights
2016 and was apparently never revoked.58 The Council;65 punishing the staff of the International
consensus is that the results of Obama’s APB were Criminal Court through a perversion of U.S.
“mixed” when it comes to preventing atrocities59 sanctions authorities;66 praising autocrats and
(as cogently argued by Stephen Pomper in his failing to criticize or sanction countries committing
insider evaluation for the USHMM),60 but that atrocities while alienating traditional U.S. allies;67
it succeeded in building in-house capacities,61 withdrawing from treaty frameworks (such as the
injecting atrocities prevention into the mandates Arms Trade Treaty,68 which Obama signed and then
58 Exec. Order No. 13729—A Comprehensive Approach to Atrocity Prevention and Response, 81 FR 32611 (May 18, 2016).
59 Tessa Alleblas, et al., Hague Inst. Global Justice et al., In the Shadow of Syria: Assessing the Obama Administration’s
Efforts on Mass Atrocity Prevention (2017).
60 Stephen Pomper, USHMM Simon-Skjodt Center for the Prevention of Genocide, Atrocity Prevention Under the Obama
Administration: What We Learned and the Path Ahead (2018).
61 Norris & Malknecht, supra note 16.
62 Samantha Capicotto & Rob Scharf, National Mechanisms for the Prevention of Atrocity Crimes, Genocide Stud. & Prevention:
An Int’l J. 11:3, at 6 (2018). For example, the United Kingdom eventually announced its own policy. See Foreign and
Commonwealth Office, U.K. Approach to Preventing Mass Atrocities (July 16, 2019); Kate Ferguson, Putting Atrocity
Prevention at the Heart of British Foreign Policy, Foreign Pol’y Centre (Sept. 8, 2020).
63 Implementing the Responsibility to Protect: Accountability for Prevention, G.A. Res. 71/1016, U.N. Doc. No. A/71/1016 (Aug. 10,
2017).
64 Ryan Kaminski & Grace Anderson, Estrangement Over Engagement: How the Trump Administration is Bucking Bipartisan
Human Rights Diplomacy at the UN, Just Security (Oct. 14, 2020).
65 Keith M. Harper & Stephen Pomper, On the U.N. Human Rights Council, Quitters Are Losers, Foreign Pol’y (Jan. 29, 2018).
66 Beth Van Schaack, The Int’l Criminal Court Executive Order: Global Reactions Compiled, Just Security (Sept. 1, 2020).
67 Domenico Montanaro, 6 Strongmen Trump Has Praised—And The Conflicts It Presents, NPR (May 2, 2017).
68 Arms Trade Treaty, U.S. Dep’t State (2013) (archived).
7Trump “unsigned”69); and providing weapons to omnibus legislation aims to strengthen U.S.
states after abuses had been documented, as in atrocity prevention capacity through the pursuit
Yemen.70 These moves inspired autocratic leaders of a government-wide strategy. It requires the
the world over to follow suit. President to report annually to Congress on
interagency atrocity prevention policies and
In the early Trump years, there were no obvious activities, including with respect to specific risk
changes to the Board or its working methods. factors, vulnerable groups, and likely scenarios
Although Trump’s 2017 National Security Strategy in which atrocities may occur. The Act also
made mention of this work, it was clearly acknowledges the importance of the Executive
deprioritized.71 In its first report under the Elie maintaining a body such as the APB (stating U.S.
Wiesel Act in 2019,72 the Trump administration policy should “regard the prevention of atrocities
announced that the APB would be renamed the as in its national interest”), mandates additional
“Atrocity Early Warning Task Force.”73 This White training of all U.S. Foreign Service Officers in
House-led entity was mandated to meet only conflict and atrocities prevention, and directs the
several times a year and only annually at senior United States to work to strengthen international
levels. Many interpreted this move as more than the organizations and international financial
typical Trumpian rebranding of Obama initiatives institutions in conflict prevention, mitigation, and
but rather as an institutional downgrade. This, response and in addressing violations of the law
in turn, raised concerns that the body would no of armed conflict (also known as international
longer seek to inspire and implement preventive humanitarian law). It also calls for the effective use
action but rather be limited to raise alarms about of foreign assistance to support transitional justice
at-risk situations. Indeed, insiders recount that measures, including criminal accountability, and
the Task Force was focused more on coordination regular consultation with civil society. In this
as opposed to driving policy. On the flip side, the latter regard, the Prevention and Protection
Trump administration did engage in documentation Working Group (PPWG)76—a diverse coalition of
efforts, information sharing, and strategic human rights, faith-based, humanitarian, and
messaging around ongoing atrocity situations in peace organizations coordinated by the Friends
Myanmar, China, and elsewhere. Committee on National Legislation (FCNL) and
dedicated to improving U.S. policies to prevent
Elie Wiesel Genocide & Atrocities conflict and atrocities—has become the de facto
Prevention Act contact point.
Meanwhile, Congress vigorously took up the The Trump administration’s 2020 Elie Wiesel report
atrocities prevention mantle.74 Among other was vague on details, suggesting that the Act
enactments, in 2018, Congress passed the Elie had been only cursorily implemented.77 Insiders
Wiesel Genocide and Atrocities Prevention Act recount, however, that notwithstanding the steady
with remarkable bipartisan margins to further loss of staff within the National Security Council
commit the United States to this agenda.75 This (NSC), and disinterest among the administration
69 Thalif Deen, US Takes Back Signature on Arms Trade Treaty, Global Issues (Apr. 29, 2019).
70 Diane Bernabei & Beth Van Schaack, State Dept. Inspector General Report: A Troubling Message on Arms Sales, Just Security
(Aug. 26, 2020).
71 See President Donald Trump, National Security Strategy of the United States of America (2017).
72 See White House, Elie Wiesel Genocide and Atrocities Prevention Report (2019).
73 Nicholas Sakelaris, Trump Creates Task Force to Detect, Prevent Global ‘Atrocities’, United Press Int’l (Sept. 12, 2019); Nahal
Toosi, Trump Pledged to Prevent Atrocities. Now He May Race One on His Watch., Politico (Oct. 22, 2019).
74 Congress also passed legislation focused on related issues and specific atrocity situations, see supra notes 26–29. See also
Joanne Lin, The 116th Congress’s Record on International Human Rights: The Good, the Bad, and the Unfinished Business, Just
Security (Oct. 19, 2020).
75 Mike Brand, We Can Prevent Mass Atrocities: It’s Time for Congress to Pass the Elie Wiesel Act, The Hill (July 30, 2018).
76 Prevention and Protection, Friends Committee on Nat’l Legislation.
77 Bureau of Conflict and Stabilization Operations, U.S. Dep’t State, 2020 Report to Congress Pursuant to Section 5 of the
Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (P.L. 115-441) (2020).
8leadership, these efforts continued apace at the praised the increase in training and the
working level and on the diplomatic front,78 mostly Trump administration’s willingness to proceed
through the dogged work of career civil servants multilaterally, but lamented the Task Force’s more
who are profoundly dedicated to this portfolio. In limited mandate and working methods, its lack
particular, State and USAID launched a strategic of transparency and thin engagement with civil
prevention project to assess the role of foreign society in at-risk countries, its failure to account
assistance in preventing conflict.79 Likewise, for funds expended, and the lack of commitment to
the State Department’s Bureau of Conflict & fully staff the relevant interagency offices.81 PPWG
Stabilization Operations (CSO), which had been was particularly disappointed that the report
operating as a secretariat for the APB, remained a placed all information about particular priority
hub for this work under the APB’s successor in the countries within a classified annex, making it
absence of leadership from the NSC.80 However, more difficult for researchers, non-governmental
many expressed concerns that, particularly given entities and the public to engage substantively,
the hierarchical nature of policymaking within the undermining government accountability and
U.S. government, there is only so much that can Congress’ statutory oversight role, removing any
be accomplished without steady investment from potential deterrent impact of having a public
the political leadership. That said, the continuity list,82 and limiting the ability to mobilize the
of working level teams ensures that the Biden general public and global community.83 PPWG’s
administration can resume this work without assessment of the Trump administration’s 2020
starting from scratch. report echoed these concerns and also raised
the specter of politicization in light of the over-
Civil society actors were critical of the Task Force weaning attention to China and the absence or
and the administration’s perfunctory reporting limited mention of other high-risk situations—such
under the Elie Wiesel Act. The PPWG issued two as Yemen, Afghanistan, or the Rohingya minority
reports evaluating the Trump administration’s in Myanmar—which undermined the positive
implementation of the Act. Its 2019 assessment elements of the administration’s efforts.84
Signed into law in January 2019, the Elie Wiesel Genocide and Atrocities Prevention Act
recognized the prevention of atrocities as in the U.S. national interest; committed to working with
partners and allies to identify, prevent, and respond to the causes of atrocities; and recognized
the need for a US, government-wide strategy (through the APB or a successor entity) to do so. It
also instituted additional training for Foreign Service Officers on potential risks and patterns of
escalation as well as methods to prevent and respond to atrocities.
The Act also required the administration to report to Congress annually with a global assessment
of countries and regions at-risk, ongoing atrocities, U.S. prevention efforts, funding utilized, and
recommendations for strengthening U.S. capabilities and for enhancing regional and multilateral
mechanisms that might share responsibility for responses.
78 Daren Caughron, Advocates for Peace Disappointed with State Department Report on Atrocities Prevention, Friends Committee
on Nat’l Legislation (Aug. 12, 2020).
79 Office of Foreign Assistance Resources, U.S. State Dep’t, The Strategic Prevention Project: Assessing the Role of Foreign
Assistance in Preventing Violent Conflict in Fragile States (2019).
80 Dispute Resolution, Bureau of Conflict and Stabilization Operations, U.S. Dep’t State.
81 Prevention and Protection Working Group, Civil Society Assessment of the Administration Report Submitted in
Compliance with the Elie Wiesel Genocide and Atrocity Prevention Act (2019).
82 See Judith Kelley, Scorecard Diplomacy: How Grades Drive Behavior in International Relations, Brookings Institution (May 22,
2017).
83 See PPWG 2019 Assessment, supra note 81, at 10.
84 Prevention and Protection Working Group, Civil Society Assessment of the 2020 Report to Congress Pursuant to Section
5 of the Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (P.L. 115-441) 6-8 (2020). See also Caughron, supra
note 78.
9III. COMPONENTS
OF A ROBUST ATROCITIES
PREVENTION AGENDA
The Biden administration has recommitted to learned about what strategies are effective
protecting civilians, preventing atrocities, and and what tools need to be sharpened, socialize
promoting accountability globally. Rebuilding this work throughout government, and inform
this policy plank will require the development U.S. bilateral and multilateral policy in at-risk
and revitalization of capacities at several key countries. The new administration must look for
stages: upstream prevention, quick responses ways to ensure that this entity is not just another
in at-risk situations, engaging in effective crisis interagency committee, but rather enjoys some
response, and catalyzing the range of justice real power to drive policy, convene high-level
options in the wake of abuses. The latter attention, urge Deputies and Principals to act,
involves, most importantly, the documentation and be integrated into relevant regional policy
of abuses and criminal accountability, but also processes. In this regard, this body should be
promoting other transitional justice mechanisms, better embedded within the mainstream NSC
including exercises in truth-telling, establishing processes, including country-specific policy
historical memory, lustrations, reparations, and committees, in order to improve coordination
memorialization.85 Such post-hoc responses are and unity of effort. Ensuring an engaged whole-
important in their own right but also contribute of-government architecture in support of these
to prevention by channeling retributive priorities, and creating a pervasive culture of
impulses, interrupting cycles of vengeance, and prevention rather than reaction, will enable the
acknowledging harm. new entity to build awareness and consensus
across the government around at-risk situations,
The United States must work to strengthen marshal resources and expertise, and coordinate
global norms and institutions devoted to atrocity responses across regional and functional offices,
prevention and civilian protection, and proceed which do not always work smoothly with each
collaboratively to anticipate, prevent, and other.86 The entire foreign policy system must
respond to at-risk situations around the world. commit to upstream prevention but also be
The imperative of atrocity prevention and poised and ready to act when the situation
accountability must pervade all components of begins to erode.
the Executive Branch through law and policy
that will survive the test of time.
The new administration must look
for ways to ensure that this entity
A Centralized But Integrated Interagency
Process
is not just another interagency
Key to this effort will be a revitalized interagency committee, but rather enjoys real
entity (however denominated) that creates power to drive policy, convene
a framework for atrocities prevention and
response work, including long-range planning, high-level attention, urge Deputies
crisis mitigation, emergency response, real- and Principals to act, and be
time documentation, and post-hoc justice and integrated into relevant regional
accountability. Such a body can emphasize early
policy processes.
prevention, build upon what has been
85 See, e.g., Int’l Coalition of Sites of Conscience.
86 Finkel, supra note 48.
10Each country identified by the intelligence with incipient or ongoing atrocities that are not
community or other experts to be “at-risk” should yet on the global radar. The Atrocities Assessment
be subject to a tailored response process that is Framework, jointly created by the State
cross-cutting and co-convened by regional and Department and USAID, can help provide guidance
functional offices within the State Department, in this regard alongside other conflict assessment
with special attention given to those situations tools.87
This body should be empowered to utilize all available tools—including:
• catalyzing and coordinating upstream preventative efforts;
• deploying a rapid-reaction team;
• imposing targeted sanctions;
• recommending a role for regional or U.N. peacekeeping missions with multidimensional
mandates and for U.S. involvement therein (e.g., in the command structure or in a
supportive capacity);
• addressing incoming and outgoing supply chains and the provision of dual-use technology
through trade and other authorities;
• supporting documentation and accountability mechanisms through innovative funding
mechanisms down to the local level;88
• addressing dangerous speech on multiple platforms through peace-building initiatives,89
potential counter-speech,90 public diplomacy and media outreach, and engagement with
the private sector;91
• investing in transitional justice mechanisms, reconciliation and peacemaking efforts, social
cohesion, and inter-faith dialogues;
• training armed actors in international humanitarian law;
• launching gender inclusive disarmament, demobilization and reintegration (DDR) programs
for armed actors;92
• supporting programs that will provide reparations—individual, collective, and symbolic—for
survivors and their communities; and
• supplying humanitarian assistance to and through trusted civil society actors—all in
partnership with U.S. friends and allies and the United Nations.
87 Bureau of Conflict and Stabilization Operations, U.S. Dep’t State, Atrocity Assessment Framework: Supplemental Guidance
to State/USAID Conflict Assessment Frameworks (2015).
88 On funding, see Riva Kantowitz, Center on Int’l Cooperation, Innovative Finance to Sustain Peace: Mapping Ideas (2019);
Peace Direct, Radical Flexibility: Strategic Funding for the Age of Local Activism (2020).
89 See Dangerous Speech Project, Dangerous Speech: A Practical Guide (2021). See also Hate Speech as Early Warning,
Monitoring, Intervention, and Mitigation, in U.S. Agency for Int’l Dev. et al., Preventing Atrocities: Five Key Primers at 2
(2014).
90 Susan Benesch, et al., Considerations for Successful Counterspeech, Dangerous Speech Project (Oct. 14, 2016).
91 See Tech Challenge for Atrocity Prevention, U.S. Agency for Int’l Dev. (last updated Sept. 7, 2018).
92 Brian McQuinn, DDR and the Internal Organization of Non-State Armed Groups, Stability: Int’l J. Security & Development 5:1
at 2 (2016).
11Public Engagement specific risk factors, at-risk groups, and likely
scenarios in which atrocities would occur.”99
In order to enhance its work, and ensure This offers the opportunity to issue more
accountability, the entity dedicated to this public reports about executive efforts toward
portfolio should not eschew public engagement atrocity prevention and response, enhancing
like other interagency policy committees. Much transparency and accountability. The Trump
of the work of the APB, and its successor, has not administration promised to release its “Atrocity
been made public, although the White House has Prevention Strategy”—setting forth the Task
periodically released a series of fact sheets, cleared Force’s approach to identifying at risk countries
remarks, and congressionally-mandated reports (including assessment tools and data sources),
(see, e.g., in 2012,93 2013,94 2015,95 and 2018)96 follow up policies, and modalities of interagency
about the Board/Task Force’s membership, key engagement—but this was not forthcoming. While
priorities, operations, and activities. By remaining the Biden administration’s first report in 2021
in largely stealth mode, Obama’s APB did not build included greater detail about U.S. engagement
congressional and civil society constituencies in select countries where atrocities were ongoing
that could have supported its work. This stance (Myanmar, China, Ethiopia, Iraq, Syria and South
generated criticism about the lack of transparency Sudan), including support for transitional justice
around the Board’s work, particularly given the efforts, it did not include a public list of countries
passion among many groups for this initiative— or regions at risk or clear presentations of
including among human rights, human security, coordinated, government-wide prevention efforts
faith-based, and development organizations, in cases further upstream.100 There are significant
as reflected in the Prevention and Protection opportunities to improve transparency and
Working Group’s cross-sectoral membership.97 communication about the Task Force’s work and
Outreach to and lines of communication with non- impact and to demonstrate publicly the spectrum
governmental organizations (NGOs) in particular of U.S. atrocity prevention efforts.
could offer alternative sources of information,
advice, and implementing partners for addressing Prioritize Upstream Work
at-risk situations.98
Rather than waiting until violence is imminent,
Through the Elie Wiesel Act, Congress has the United States and other members of the
mandated the U.S. government to publish “the international community should work to reduce and
global assessment of ongoing atrocities, including mitigate underlying risk factors around the world,
the findings of such assessment and, where particularly given that opportunities for influence
relevant, the efficacy of any steps taken by the and external action as a crisis is already underway
Board or relevant Federal agency to respond may already be limited significantly. This work—
to such atrocities” and “countries and regions which involves investments in education, access
at risk of atrocities, including a description of to justice, the rule of law, good governance, and
93 Office of the Press Secretary, White House, Fact Sheet: A Comprehensive Strategy and New Tools to Prevent and Respond
to Atrocities (Apr. 23, 2012).
94 White House, Fact Sheet: The Obama Administration’s Comprehensive Efforts to Prevent Mass Atrocities Over the Past
Year (May 1, 2013).
95 Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, Remarks to the Council on Foreign
Relations: Preventing Mass Atrocities: Progress in Addressing an Enduring Challenge (Mar. 30, 2015).
96 Atrocity Prevention, Bureau of Conflict and Stabilization Operations, U.S. Dep’t State (2018).
97 Prevention and Protection, Friends Committee on National Legislation.
98 By way of example, Human Rights First has convened a consortium of civil society actors that are helping to compile dossiers
for potential Magnitsky and related sanctions. Targeted Human Rights and Anti-Sanctions (Global Magnitsky), Human Rts
First.
99 See Elie Wiesel Genocide and Atrocities Prevention Act, supra note 27, § 5.
100 Bureau of Conflict and Stabilization Operations, U.S. Dep’t State, 2021 Report to Congress Pursuant to Section 5 of the
Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (P.L. 115-441) (July 12, 2021). For a civil society response, see
Prevention & Protection Working Group, Civil Society Assessment of the 2021 Report to Congress Pursuant to Section
5 of the Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (P.L. 115-441) (2021) (recommending public release of
country list, factors used for classifications, and training curricula).
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