Preventing the next genocide
White & Case partner Owen Pell discusses our work with the Auschwitz Institute for Peace and Reconciliation.
How did White & Case become involved with genocide prevention work?
OP: About ten years ago, I happened to meet an extraordinary man, Fred Schwartz, a successful businessman in the retail industry, who after a serious illness turned from business to thinking about events like the Holocaust and its meaning today. Exploring this question led to a project to build a synagogue and museum in Auschwitz, Poland (known today as Oświęcim) to replace the synagogues destroyed during World War II. Fred's work then moved to genocide prevention, and he founded the Auschwitz Institute for Peace and Reconciliation (AIPR).
We reviewed legal and historical precedents and developed teaching outlines that delineated the processes such as the "red flags" that tend most frequently to precede genocide or mass atrocity, and then explained the principles of international law that apply to those processes as they relate to genocide and mass atrocities.
Owen Pell, Partner,
Commercial Litigation & White Collar
What was Fred Schwartz's insight on prevention?
OP: Fred's premise, consistent with much social psychology research, was that genocides are neither random nor spontaneous, but social "sicknesses" that result from social processes that take time. He then posited two things.
First, that government agencies generally exist to address other social problems, but there were no agencies focused on preventing genocide.
Second, that history shows us many examples of individuals stepping in to mitigate or thwart mass atrocities as they are unfolding. Fred's idea was to get governments to focus bureaucratically on genocide prevention and to train government officials to spot the warning signs of genocide. Ideally, he would train mid-level officials who were committed to government service, but capable of rising into positions of power. He set out to create a "toolkit" of methods by which an official might slow down, disrupt or thwart a process that could contribute to genocide or mass atrocities.
What did White & Case do?
OP: We were involved in helping to create the original teaching curriculum. We reviewed legal and historical precedents and developed teaching outlines that delineated the processes such as the "red flags" that tend most frequently to precede genocide or mass atrocity, and then explained the principles of international law that apply to those processes as they relate to genocide and mass atrocities. We geared our outlines to people who are not lawyers or are not US-qualified lawyers.
How has this training been delivered?
OP: These materials are used today in seminars AIPR runs at the Auschwitz-Birkenau camp, a remarkable venue for focusing participants on the processes of genocide. Over the last decade, Fred has created a growing network of government officials focused for the first time on mitigating or preventing societal processes that can lead to genocide or mass atrocities. The United Nations (UN) recommends his program to Member States, and the US, German, Dutch and Danish governments fund the training of government officials from around the world at the so-called Lemkin Seminars, which are named after the Polish Jewish lawyer who coined the word genocide and was instrumental in the creation and passage of the UN Genocide Convention.
We continue to help AIPR expand the applications of this training. We are now helping AIPR develop a training program on genocide recognition and prevention for senior corporate executives from multinational corporations who often are doing business in very difficult places. They can make a difference in the societies in which they operate by how they engage with civil society groups and governments.
Officials from 45+ countries
have been trained in genocide
recognition and prevention
Who has participated?
OP: AIPR has trained government and military officials from more than 45 countries, including Argentina, Bosnia, Cambodia, Chile, China, Georgia, Germany, Indonesia, Rwanda, Senegal, Turkey and Uganda. US participants have included cadets from the four US military academies, high-ranking general officer candidates from the US Army War College and agents from the FBI working on atrocity crime cases.
What else is White & Case doing in this field?
OP: We are helping AIPR with a range of projects, including one aimed at assessing the feasibility of the World Bank developing a risk analysis "lens" for grant-making that would include UN-developed genocide prevention factors. Also through AIPR, we are analyzing for the UN Special Advisor on Genocide Prevention the thorny regulatory issues under EU and US antitrust law that might allow companies to take concerted action against governments or businesses that were complicit in human rights violations.
AIPR is an exciting client because it is taking an innovative and long-term approach to the hard questions of genocide and mass atrocity prevention.
Helping to answer critical questions
How should mercenaries be regulated?
On behalf of the Cyrus R. Vance Center for International Justice, White & Case surveyed how 22 countries regulate nongovernmental military forces and identified best practices. Private military and security companies are extremely prevalent and very often deployed in many conflicts today. An international institution specializing in dispute resolution will use our report, which was compiled by lawyers from seven of our offices, to inform its position on how mercenaries should be regulated.
How can regional sanctions be most effective?
Sanctions—either by individual countries or regional entities such as the African Union or the European Union—are one tool for pressuring adversarial parties to participate in a peace process. At the request of the Public International Law & Policy Group (PILPG), our lawyers researched the use and effectiveness of regional sanctions to help PILPG's clients in South Sudan decide if such sanctions might help encourage the parties to participate more constructively in the peace negotiation process.
How can peace agreements best promote national dialogues?
Peace agreements have sometimes called for formal "national dialogues" that are designed to help heal a country after a conflict. At the request of PILPG, which is working to support the peace process in South Sudan, our lawyers researched how national dialogues were structured in six countries—Guatemala, Indonesia, Lebanon, Rwanda, South Africa and Yemen—and recommended language to incorporate into the peace agreements in South Sudan that would improve the chance of an effective national dialogue once the conflict has ended.
Changing US government policy on anti-terrorist vetting procedures
After the US State Department and US Agency for International Development began to pilot new anti-terrorist vetting procedures for recipients of aid funds that could put the recipients in danger, Save the Children US, Save the Children International and InterAction approached White & Case for support in their efforts to get the US government to reconsider.
Our work on anti-terrorist vetting procedures was "commended" for its innovation by the Financial Times in the social responsibility category of the FT Innovative Lawyers 2014 report.
The pilot policy required any primary aid recipient organization, such as Save the Children, to not only submit personal details of its own key employees, but to do so on behalf of other organizations it works with that would receive some of the aid funds. This can put local aid workers in danger by creating the perception that they have close ties to the United States. Research has shown that attacks on aid workers, including murders, have been linked to perceived US ties.
Calling upon our experience with UK and EU privacy and data protection laws, we put forward a novel argument that changed the nature of the debate and holds the promise of protecting the safety of aid workers while still achieving the goal of preventing aid funds from reaching terrorist organizations.
Many non-governmental organizations (NGOs) had been asking the US government to rethink these vetting procedures since 2007. But progress was only achieved when our lawyers took the novel approach of using EU and UK data privacy and protection law and applying it to US domestic policy and the wider humanitarian ecosystem.
We understood that UK and EU privacy law can be considered more far-reaching and universal than US law. Unlike the American Constitution, Europe's Lisbon Treaty ensures the individual’s right to data protection and privacy. Crucial to the argument, Save the Children International is based in London and would be responsible for much of the vetting across its global alliance. In this case, where potential privacy abuses were affecting personal safety, it seemed appropriate that the broader EU definition be applied.
This argument has proven valuable in negotiations with the US government over changes to its policy. USAID launched its pilot for contracts in 2014 and provided the option of local NGOs to submit their information directly; the rules governing assistance awards have not yet been announced.
The Counterterrorism and Humanitarian Engagement Project of Harvard Law School published White & Case's policy argument in a peer-reviewed article.
URGING SYRIAN REFUGEES TO REGISTER BIRTHS AND MARRIAGES
Our lawyers in Abu Dhabi, Washington, DC and London worked with the women's rights organization MADRE to create outreach materials that will be distributed by the thousands to Syrian refugees in Iraq, Jordan, Lebanon and Turkey to urge them to legally register births and marriages with the government of the country to which they have fled. There are serious consequences for those who fail to register. Women have no protection or support if their husbands die or abandon or abuse them. Children might not be allowed to attend school or receive medical attention.
INTERNATIONAL CRISIS GROUP: A KEY CLIENT
For more than a decade, lawyers from many of our offices have advised the International Crisis Group (ICG) on a wide array of legal issues, including matters related to its operations in areas experiencing and recovering from deadly armed conflict. As corporate and transaction counsel, our advice has included corporate governance, sanctions compliance, investment structuring, tax, employment, intellectual property and immigration law, and a plethora of regulatory matters across many jurisdictions. We also provide ICG with advice on substantive matters of international law that impact its reporting on deadly conflicts around the globe.