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By MARISSA GOLDFADEN

In a recent lawsuit, current Yale professor and former Mexican president Ernesto Zedillo has been accused of committing war crimes and crimes against humanity during his presidential tenure. But the U.S. State Department is arguing that Zedillo is immune from the suit, since his actions in connection with the 1997 Acteal massacre of 45 indigenous villagers were taken as part of his official duties as head of state.

Zedillo’s lawyer, Jonathan Freiman, motioned to dismiss the $50 million suit in January, citing the same reasoning. According to the Yale Daily News, “Ingrid Wuerth, a professor at Vanderbilt Law School who has written about immunity issues, said the courts have tended to side with State Department suggestions of immunity. She cautioned that such practices lend the government political power in altering the course of judicial proceedings.”

Though such cases are rare, it is common practice for the State Department to provide immunity recommendations to U.S. courts for cases concerning foreign heads of state. While State Department legal adviser Harold Koh wrote that the agency’s position took into account “the overall impact of [the case] on the foreign policy of the United States,” Curtis Bradley, a professor at Duke University School of Law, said it was primarily grounded in principles of international law. He said a federal court would have considered similar principles, and would likely have reached a comparable conclusion about Zedillo’s immunity even without the State Department recommendation.

This is an interesting case for those concerned with prevention of mass atrocities, as it raises the question, At what point does immunity become impunity?

Also in the news this week, the United States is refusing to extradite Bolivian ex-president Gonzalo Sánchez de Lozada to face charges of genocide and crimes against humanity. In October 2003, then-president Sánchez de Lozada ordered security forces to suppress popular protests against economic inequality. Sixty-seven men, women, and children were killed, and 400 injured, almost all of them poor and from the nation’s indigenous Aymara communities. Sánchez de Lozada fled to the United States, and has been living here ever since.

Writes Glenn Greenwald in The Guardian:

In 2007, Bolivian prosecutors formally charged him with genocide for the October 2003 incident, charges which were approved by the nation’s supreme court.

Bolivia then demanded his extradition from the US for him to stand trial. That demand, ironically, was made pursuant to an extradition treaty signed by Sánchez de Lozada himself with the US. Civil lawsuits have also been filed against him in the US on behalf of the surviving victims.

In the civil case against him, a U.S. appellate court ultimately ruled that Sánchez de Lozada was immune from damages or civil lawsuits, overturning a lower court ruling that there were sufficient allegations of genocide and war crimes against him to allow the suit to proceed.

The topic of immunity for heads of state, both sitting and former, is more widely debated than ever. As it should be. The question of how genocide, war crimes, and crimes against humanity can be legitimately seen as part of a head of a state’s “official duties” is one that must be answered.

Photo: yaledailynews.com

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By MARISSA GOLDFADEN

The Genocide Prevention Advisory Network recently issued a conference report from their advanced workshop at The Hague on March 14-15, 2012. Focusing on the emerging global and regional architectures aiming at the prevention of genocide, war crimes, and crimes against humanity, the conference addressed the following questions:

  • What guiding principles are emerging to shape the architecture and community of genocide prevention and its relevant fields?
  • What can GPANet offer to articulate those principles and strengthen these emerging capacities?
  • How can GPANet work in partnership to support and facilitate local, national, regional and international prevention networks?

The papers presented at the conference dealt with the topics of early warning and data gathering and verification systems, case studies on Somalia, linkages with terrorism, and lastly, perspectives on genocide prevention. This final subject is what we’ll focus on, given the work of AIPR.

Discussing Holocaust education and genocide prevention, Yehuda Bauer spoke of the “problematic” text of the Genocide Convention and the resultant inefficacy of the United Nations to prevent or halt instances of genocide post-World War II: two examples being Rwanda in 1994 and Sudan at present. Given the structure of the Security Council, geopolitical interests often trump those of the humanitarian variety. Moreover, Bauer argues that race and ethnicity are modern social constructs, given the singular origin of the human species. This leads to the common “us vs. them” framing that serves to precipitate genocide. All of this is compounded by the fact that, “There is a dialectical development one can discern in international politics, reflecting two contradictory global trends: a tendency towards greater unification on the one hand, and an opposing tendency towards greater autonomy and independence of ethnic and/or national groups on the other hand.”

Gregory Stanton, president of Genocide Watch and formulator of the Eight Stages of Genocide model, noted Genocide Watch’s early warning system and how “[r]apid response by regional alliances has prevented or stopped several genocides: in East Timor, Kosovo, Côte d’Ivoire, Ethiopia , and Sierra Leone.” He also spoke of the success of international tribunals and the creation of the ICC. Having worked against genocide for 30 years, Stanton says he has learned two things about genocide prevention. He states:

  1. The first lesson is the direct result of our own human incapacity to comprehend or feel sympathy for large groups of people halfway around the world. Because individuals cannot do that, we need permanent institutions established that will watch out for precursors of genocide, take action to prevent it, intervene to stop it, and arrest and prosecute those who commit it.
  2. The second lesson I have learned is that genocide prevention must start and be led by people from countries at risk. It cannot be led by an American organization in Washington, DC, led by a pacifist director, that is unwilling to advocate the use of force to stop genocide. Prevention must especially begin from the ground up in countries at risk of genocide. A true International Alliance to End Genocide can support such local efforts and create an international mass movement to end genocide.

Daniel Feierstein then offered “A Critique of the Hegemonic View of the Current Genocidal Conflicts: A Perspective from the Latin American Margin.” His understanding of genocide seeks to dismantle a simplistic “Good People vs. Bad People” scenario and instead puts forth a perspective where genocide is “a technology of power used very successfully to destroy and reorganize social relationships and identities.” He believes “this would be a better explanation of why it continues beyond our collective calls of ‘never again.'” He went on to point out three different initiatives as possible alternatives to the military intervention model:

1. The UNASUR (Union of South American Nations) Experience

Since the UNASUR Constitutive Treaty was signed on May 23, 2008, UNASUR has helped four countries in the region that have experienced the possibility of new violent conflicts: Bolivia (2008), Honduras (2009), Ecuador (2010), and the conflict between Colombia and Venezuela (2010). In each case there was a major crisis with strong potential to trigger atrocity crimes.

2. The Regional Fora on Genocide Prevention

Writes Feierstein, “The idea was to meet all the governments of a region to create an open exchange and debate on how to prevent possible genocidal conflicts. As every government is involved in the discussions, there is a possibility (only a possibility, but we should have little utopias, which are more possible to achieve than the big ones) that the real problems of the regions will appear. It is even possible that some approaches to resolve them will emerge, as there are few instances in which the governments are invited to debate on regional perspectives to analyze and prevent genocide.”

3. The Auschwitz Institute for Peace and Reconciliation

AIPR has organized several meetings with mid- and low-level representatives, with the idea that governments change but there are some kinds of officers who continue in their key positions as professionals and/or bureaucracy. The objective of the AIPR is to train those people in early warning and genocide prevention as a challenge for the future.

The  workshop concluded with a concept note by Alice Ackermann on emerging genocide prevention structures in Europe and Liberata Mulamula discussing the same in the context of the Great Lakes region of Africa.

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