Implementing the Genocide Convention at the Domestic Level: The Elie Wiesel Genocide and Atrocity Prevention Act 2018

On January 14, 2019, U.S. President Donald Trump signed into law the Elie Wiesel Genocide and Atrocity Prevention Act of 2018. The United States initially signed the Convention on the Prevention and Punishment of the Crime of Genocide at its unveiling in 1948, but did not take the mandated step (Article V) of established the federal crime of genocide until the Proxmire Act in 1988.

The Elie Wiesel Act is the first legislative effort within the United States to address the Convention’s first element, the call for States to undertake action to prevent genocide (Article I). The Convention itself contemplates the U.N. Security Council as the appropriate mechanism for such prevention efforts (Article VIII). The U.N. itself has established the Office on Genocide Prevention and the Responsibility to Protect and asserts that the obligation to prevent and punish genocide “have been considered as norms of international customary law and therefore, binding on all States, whether or not they have ratified the Genocide Convention.”[1]

In addition, in the preliminary objections holdings of the Genocide Convention Case, the International Court of Justice held that “the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention.”[2]

The Elie Wiesel Act (the Act) represents the first legislative step by the United States to codify its own atrocity prevention efforts and creates certain legislatively required mandates that serve as a foundation for atrocity prevention efforts with which all future administrations must comply. These include:

• The regular inter-agency cooperation of relevant U.S. Government officials;
• The explicit statement that atrocity prevention is in the national interest of the United States;
• A “United States Government-wide strategy to identify, prevent, and respond to the risk of atrocities;”
• The training of U.S. Foreign Service Officers (FSOs) headed to countries “experience or at risk of mass atrocities;” and
• The annual report by the Administration to Congress on its efforts.

The First Elie Wiesel Act Report

As a significant insight into the current Administration’s commitment to this issue, the legislatively mandated initial report (the Report), due within 180 days of the signing of the Act, came out on September 12, 2019 (241 days after the Act became law).

The Report contains a significant amount of information about the United States various efforts to address genocide and atrocity prevention through different administrations, as well as the current efforts in different departments and agencies. As permitted by the Act, the report includes a classified annex. While this annex will not be made public, most civil society actors believe that the requirement to train FSOs headed to specific at-risk countries means that, at some point, there will be a list of countries determined to be at risk that will be made publicly available.

The Report includes all of the sections required by the Act and I will attempt to cover the items raised in each section that have drawn upon or may affect the international legal framework aimed at atrocity prevention.

1. Global Assessment

The Administration flagged that the term “mass atrocities” is not defined under international law (or U.S. domestic law), but did note that the classified annex provided a definition that includes “acts that can be characterized as war crimes, crimes against humanity, genocide, and ethnic cleansing.” 

2. Multilateral and Diplomatic Engagement

The Report references ongoing efforts within the United Nations system to address at-risk countries, including the provision of satellite imagery to the Independent International Fact-Finding Mission on Burma. It also reemphasized the U.S. Government’s position on the Responsibility to Protect movement by stating that it “believe[s] that each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” Finally, the Administration flagged its efforts to work within the UN General Assembly’s Third Committee on Social, Humanitarian, & Cultural Issues to address issues in Venezuela and Nicaragua.

Of course, such assertions of compliance and engagement with the U.N. system have to be taken into consideration against the backdrop of this Administration’s choice to withdraw from the U.N. Human Rights Council and UNESCO. While the Administration cites efforts to engage with the UN system, these systematic withdrawals, the downgrading of the post of U.S. Ambassador to the UN from a cabinet position, and the ongoing recovery of the eight month gap left after Ambassador Nikki Haley departed in January make it difficult to anticipate significant investment of time and resources on behalf of the United States in cooperating with the United Nations system.

The Report also flags regional organization and country-to-country engagement, including work with the African Union and efforts to address protection of civilians issues through military commands. This is a growing area of focus among civil society and national actors and is a welcome addition to the conversation.

The Report did not explicitly discuss efforts to hold violators accountable through international courts or tribunals, though it did make reference to “transitional justice and accountability mechanisms,” which one can reasonably interpret to be a nod to those methods from an Administration demonstrably hostile to international courts and tribunals.

3. Consultations with Civil Society

The author would note that he was a part of the civil society engagement meetings mentioned in this section, and contributed to the recommendations referenced in Section IV as well. While those meetings took place off-the-record, the sense of the civil society community is that they were positive interactions with the representative U.S. Government agencies and departments. The State Department, USAID, and White House teams were committed to engaging on this issue and undertaking more than just the bare minimum of activities required by the Elie Wiesel Act.

4. U.S. Government and Civil Society Recommendations

The four specific recommendation mentioned in the Report were a small portion of the issues raised by civil society. They do address significant areas of improvement that the U.S. Government should address, including:

• “Improved use of data analytics, qualitative analysis, and intelligence reporting to enhance early warning and forecasting of atrocity risks;
• Standardized atrocity prevention training for United States Government personnel;
• Regular information-sharing and consultations with civil society; and
• Streamlining efforts to prevent and mitigate atrocities within existing interagency policy processes.”

5. Efforts by the U.S. Government to Respond to Atrocities

This section lays out the ongoing efforts already in place at the various U.S. agencies and departments engaged in activities that relate to genocide and atrocity prevention. The Administration does highlight several activities that derive from the Genocide Convention, including the prosecution of individuals found to be in the United States who are implicated in events that fall within the “mass atrocity” definition used in Section I. The Report also makes mention of several non-atrocity prevention systems and tools that could be used to better effect to address these issues, including the Global Magnitsky Human Rights Accountability Act, the Treasury Department’s Financial Action Task Force, and Treasury sanctions regimes of specific countries and actors.

The Report includes a decision to rename the Atrocities Prevention Board (APB), established by Presidential Study Directive 10 in August 2011, to the “Atrocity Early Warning Task Force” (Task Force).[3]

The Administration offered no explanation for the name change in the Report, but discussion by civil society organizations raised several concerns. The first, and perhaps the most nebulous but also potentially the most significant, is that removing the word “prevention” from the body changes the nature of the entity in a substantive way. The individuals from within the U.S. Government that participated in this interagency process prior to the name change took the “prevention” portion of their efforts seriously. Removing that word from the official name for the interagency cooperation mechanism may have unintended consequences when it comes to the efforts undertaken by the interagency process to address the real need of peoples around the world who may go from being at risk to victims in a very short period of time.

The new formulation of the Task Force also includes a decrease in the meeting of the interagency entity. The APB met monthly, at least, with Deputy level meetings twice a year and Principals meetings once a year. The new Task Force will meet only four times a year and “at the leadership level once a year.” The reduction in frequency of meetings does raise concerns that a situation that the Task Force has been monitoring could go from at risk to actual loss of life between meetings. The lack of a specific Deputy-level meeting creates concerns that those actors in the participating agencies most likely to have the ability to maneuver resources and attention within a department most effectively to address a breaking situation may not be fully apprised of the surrounding issues or the need to act.

The Report offers as a counterpoint to these concerns the intent to coordinate between the Task Force and other “regional and country decision-making bodies in the White House” to ensure that issues are addressed, but it frames that coordination in the context of “eliminate[ing] duplication of effort and improve[ing] coordination at the policy-making level.”

6. Atrocity Prevention Training for U.S. Government Personnel

Perhaps one of the most understated but crucial elements of the Elie Wiesel Act was the requirement that U.S. FSOs headed to countries designated as at-risk event receive training on how to appropriately recognize and respond to warning signs that might precede a mass atrocity event. The report outlines the existing trainings that the State, Justice, and Defense departments currently use, along with USAID’s Field Guide: Helping Prevention Mass Atrocities. 

Under the Elie Wiesel Act, only new FSOs heading to designated at-risk countries are required to undergo this training. One of the strongest recommendations civil society actors made was that this training be expanded to include a wider variety of government employees. The report goes further and states “select Foreign Service and Civil Service Officers (including Desk Officers and those employed in relevant functional Bureaus or interacting with relevant multilateral institutions) whose portfolios include countries designated as at-risk of atrocities, will be required to complete atrocity prevention training.” This represents a significant increase in the capacity to allow U.S. Government employees to appropriately identify and respond to potential mass atrocity events.

Summary

This first report of the Trump Administration under the new requirements imposed by the Elie Wiesel Act provides significant insight into the role that the Executive Branch sees for itself in the issue of atrocity prevention. While there is much left that civil society actors would like to see pursued, some of which is acknowledged by the report, there are signs of commitment to atrocity prevention goals by the staff of the various agencies and departments that bear this legislatively mandated burden. It will be critical to follow future engagement by the U.S. Government with civil society actors and the actions that they actually take, such as are known to the general public, in evaluating whether or not the Administration is actually complying with the goal of the Act.

About the Author: D. Wes Rist is the deputy executive director at the American Society of International Law and a member of the civil society Prevention and Protection Working Group that engages on atrocity prevention issues.