Genocide in International Law Andrea Caligiuri University of Macerata
1
“Qui répondrait en ce monde à la terrible obstination du crime, si ce n’est l’obstination du témoignage?” Albert Camus (Les Justes, 1949)
2
Contents
1. 2. 3. 4. 5. 6. 7.
Origins of legal prohibition of genocide The legal definition of genocide The nature of legal prohibition in international law The protected interest: groups, not individuals The mental element (mens rea) of genocide The physical element (actus reus) of genocide Acts of genocide not punishable under the Convention
Basic Bibliography
3
1. Origins of the legal prohibition of genocide
4
Historical background: Disputed genocides •
“Herero and Namaqua Genocide” in German South-West Africa (Namibia) - 1904/1907
•
“Armenian Genocide” in Ottoman Empire - 1915/1917
•
“Great Famine (Holodorom)” in Soviet Ukraine - 1932/1933
•
“Dersim Massacre” in Turkey - 1937/1938
5
•
Report of Allied warning to the Ottoman government to stop the massacres of Armenians (May 29, 1915): “in the presence of the new crimes of Turkey against humanity and civilisation, the allied Governments publicly inform the Sublime Porte that they will hold personally responsible for the said crimes all members of the Ottoman Government as well as those of its agents who are found to be involved in such massacres”
6
R. Lemkin: Axis Rule in Occupied Europe, Washington, 1944 Genocide is “a co-ordinated plan of different actions aiming at the destruction of essential foundations of life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of national groups and the destruction of personal security, liberty, health, dignity, and even lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group”
7
•
Genocide was first conceived as a category of crimes against humanity. In fact, the Charters of the IMT at Nuremberg (art. 6) and Tokyo (art. 5) did not explicitly mention genocide.
•
However, genocide was mentioned in Indictment against Nazi Criminals at Nuremberg and by British and French Prosecutors in their final speech for the prosecution.
8
•
A/Res/96 (I), 11 December 1946, was the first official international document confirming the status of genocide as crime (see infra)
•
Genocide was also discussed in a few cases decided by national tribunals: - Hoess case, in Poland (1948) - Greifelt at al. case, by the US Military Tribunal at Nuremberg (1948)
•
Convention on the prevention and punishment of genocide, 9 December 1948 (see infra)
9
2. The nature of the legal prohibition in international law
10
1946 General Assembly Resolution •
Resolutions of the General Assembly are not binding, even if they are adopted unanimously; however, they may be declaratory of existing customary law.
•
U.S.A. v. Joseph Altstötter et al. (US Nuremberg Military Tribunal): “The General Assembly is not an international legislature, but it is the most authoritative organ in existence for the interpretation of world opinion. Its recognition of genocide as an international crime is persuasive evidence of the fact. We approve and adopt its conclusions... [We] find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed...” 11
ICJ decisions •
Case of the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, in ICJ Reports 1951, a p. 23: In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.
12
The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as “a crime under international law” involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations ... The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required in order to liberate mankind from such an odious scourge. 13
•
Barcelona Traction, Light and Power Co. Case (II phase), Judgment of 5 February 1970, in ICJ Reports 1970, § 34: The outlawing of genocide is an obligation erga omnes, that is an obligation of a State towards the international community as a whole. By their nature the obligations eraga omnes are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection.
14
•
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, 11 July 1996, ICJ Reports 1996 (II), § 31: “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”.
15
•
ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment, 3 February 2006, § 64: Prohibition of genocide is a peremptory norm of general international law (jus cogens)
16
Practice of national courts •
Judgment of 14 December 1990, High Court of Namibia: ius cogens “embodies rules such as the prohibition of aggressive war, the law of genocide, the principle of non-racial discrimination, slavery, etc., and which, according to some opinions, are overriding principles of international law”
•
(Belgium) Pinochet case, order of 6 November 1998
•
Federal Court of Australia, Nulyarimma v. Thompson, 1 September 1999
•
(Italy) Corte di Cassazione, Sezioni Unite, n. 5044/04, 11 March 2004, Ferrini 17
The practice of the ad hoc International Tribunals •
Kayishema and Ruzindana (Judgment of 21 May 1999, § 88) and Jelisic (1999, § 60): “There can be absolutely no doubt that its provisions fall under customary international law as, moreover, noted by the International Court of Justice as early as 1951. The Court went even further and placed the crime on the level of jus cogens because of its extreme gravity”. The ad hoc Tribunals identify, as numerous scholars have made, obligations erga omnes, cited in ICJ decision, and jus cogens.
18
3. The legal definition of genocide
19
A/Res/96 (I), 11 December 1946 •
Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.
•
Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.
20
1948 Genocide Convention •
Article I: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”
21
•
Article II: “…genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group” 22
Other legal sources The definition of genocide is also replicated in: • the ILC Draft Code Against the Peace and Security of Mankind (art. 19) • the Statutes of the ad hoc Tribunals for the former Yugoslavia (art. 4) and Rwanda (art. 2) • the Statute of the International Criminal Court (art. 6)
23
“to destroy, in whole or in part” •
Opinion of some authors: whether the intent of the guilty is to destroy many members of the group, it is necessary a minimalist destruction to have genocide, at least killing one member of that protected group
•
Literal interpretation of rule: genocide requires evidence of more than one victim, since the plural is used consistently throughout Article II (a) to (e).
24
•
The United Nations Expert Study on Genocide defines the term “in part” as implying “a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership”.
•
This definition means that, although the complete annihilation of the group is not required, it is necessary to establish “the intention to destroy at least a substantial part of a particular group” (in 1996 ILC Draft Code).
25
… interpretation by the ad hoc Tribunals •
Jelisic case (Judgment of 14 December 1999): the phrase "in whole or in part" must be understood to mean the genocidal intent may be manifest in two forms: - It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. - it may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group "selectively“ (at least a substantial part of the group). 26
•
Sikirika case (Judgment on Defence Motions to Acquit, 3 September 2001): - the term “in part” calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. - if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership. - the two elements “substantial” and “significant” are alternative
27
Geographic dimension of genocide •
Jelisic case (1999): it is accepted that genocide may be perpetrated in a limited geographic zone. Furthermore, the United Nations General Assembly did not hesitate in characterising the massacres at Sabra and Shatila as genocide, even if it is appropriate to look upon this evaluation with caution due to its undoubtedly being more of a political assessment than a legal one. ... In view of the object and goal of the Convention and the subsequent interpretation thereof, the Trial Chamber thus finds that international custom admits the characterisation of genocide even when the exterminatory intent only extends to a limited geographic zone.
28
4. The protected interest: Groups, not individuals
29
The types of “groups” listed in the Genocide Convention •
A common criterion in the four types of groups protected by the Genocide Convention is that membership in such group would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.
•
The more “mobile” groups which one joins through individually voluntary commitment, such as political, social, professional, or economic groups, are excluded from this category of crime.
30
… ICTY interpretation of “protected group” •
Prosecutor v. Jelisic (1999), § 71: “A group may be stigmatised in this manner by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. The Trial Chamber … deems that it is consonant with the object and the purpose of the Convention to consider that its provisions also protect groups defined by exclusion where they have been stigmatised by the perpetrators of the act in this way” 31
•
Prosecutor v. Stakic, Judgment, 31 July 2003, § 512: “In cases where more than one group is targeted, it is not appropriate to define the group in general terms, as, for example, “non-Serbs”. In this respect, the Trial Chamber does not agree with the “negative approach” taken by the Trial Chamber in Jelisic… Conversely, a targeted group may be distinguishable on more than one basis and the elements of genocide must be considered in relation to each group separately, e.g. Bosnian Muslims and Bosnian Croats”.
32
… ICTR interpretation of “protected group” Prosecutor v. Akayesu, Judgment of 2 September 1998, § 512: “a national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties” We have a mistake in this definition because nationality is identified with citizenship.
33
Prosecutor v. Akayesu (1998), § 513: “[a]n ethnic group is generally defined as a group whose members share a common language or culture” Prosecutor v. Kayishema and Ruzindana (1999), § 98: An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the group (identification by others). In the ILC Draft Code Against the Peace and Security of Mankind “tribal groups” are qualified as ethnic groups. 34
Prosecutor v. Akayesu (1998), § 514: “[t]he conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors” The ICTR uses no a objective but a subjective criterion to determine the definition of racial group. The perpetrator distinguishes the group by reason of what he considers to be a racial characteristic pertaining to the group. “Races” do not exist for modern science: “[a]ll human beings belong in a single species and are descended from a common stock” (UNESCO Declaration on Race and Race Prejudice, 27 November 1978) 35
•
Prosecutor v. Akayesu (1998), § 514: “religious group is one whose members share the same religion, denomination or mode of worship”
•
Definition of religious group can encompass also theistic, non-theistic, and atheistic communities which are united by a single spiritual ideal? - Spanisch Judg Garzon in the case on Genocide in Argentina: “To destroy a group because of its atheism or its common nonacceptance of the Christian religious ideology is… the destruction of a religious group, inasmuch as, in additional, the group to be destroyed also technically behaves as the object of identification of the motivation or subjective element of the genocidal conduct. It seems, in effect, that the genocidal conduct can be defined both in a positive manner, vis a vis the identity of the group to be destroyed (Muslims, for example). As in a negative matter, and, indeed, of a greater genocidal pretensions (all-Christian, or all atheists, for example)”. 36
Other stable groups •
In Akayesu case, the ICTR affirms that Convention ensures the protection of any stable and permanent group.
•
In Rwanda, Hutu and Tutsi have the same ethnic origin, language and cultural heritage; however, Tutsi organised a genocide against Hutu. Are Hutu protected by the Convention?
•
In Darfur, the Fur, Massalit and Zaghawa tribes do not appear to make up ethnic groups distinct from the ethnic group to which persons or militias that attack them belong. They speak the same language (Arabic) and embrace the same religion (Muslim). Do members of the tribes victims of attacks and killing make up objectively a protected group? 37
•
Prosecutor v. Akayesu (1998), § 702: “[i]n the light of the facts brought to its attention during the trial, the Chamber is of the opinion that, in Rwanda in 1994, the Tutsi constituted a group referred to as 'ethnic' in official classifications. Thus, the identity cards at the time included a reference to 'ubwoko' in Kinyarwanda or 'ethnie' (ethnic group) in French which, depending on the case, referred to the designation Hutu or Tutsi, for example. The Chamber further noted that all the Rwandan witnesses who appeared before it invariably answered spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity. Accordingly, the Chamber finds that, in any case, at the time of the alleged events, the Tutsi did indeed constitute a stable and permanent group and were identified as such by all”. 38
•
Report of the International Commission of Inquiry on Darfur to the United Nations Segretari-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, §§ 509-512: historical reasons, including those directly affected by the conflict, have contributed to the consolidation of the contrast between tribes and gradually created a marked polarisation in the perception and selfperception of the groups concerned as either “African” or “Arab”
39
Political groups •
General Assembly Resolution 96 (I) included “political groups”, but the Genocide Convention does not contained a reference to it.
•
A number of delegations had voted against the inclusion of political group as protected group because: - political groups are not stable groups; - such inclusion would create difficulties for legally established Governments in their preventive actions against subversive elements; - there was a risk of bringing about a confusion between the idea of political crime and that of genocide; - the protection of political and other groups should be ensured outside the Convention, under national legislation and the Universal Declaration of Human Rights . 40
•
Whitaker (in Revised and updated report on the question of the prevention and punishment of the crime of genocide, 1985) argued that leaving political and other groups beyond the purported protection of the Convention offers a wide and dangerous loophole which permits any designated group to be exterminated, ostensibly under the excuse that this is for political reasons .
See genocide in Cambodia
41
•
Solution adopted by national legislations: - inclusion of “political groups”: Ethiopia, Equatorial Guinea, Ivory Coast, Panama, Costa Rica, Colombia, Poland, Slovenia, Latvia, Bangladesh - inclusion of “social groups”: Peru, Paraguay - reference to “others groups”: France, Finland
42
•
Solution adopted by national courts: - Pol Pot and Ieng Sary case (People’s Revolutionary Tribunal of Kampuchea), Judgment, 19 August 1979 - Pinochet Case (Audiencia National – Sala de lo Penal), 5 November 1998: “[g]enocide is a crime consisting of the total or partial extermination of a race or human group, by the death or the neutralization of its members. Thus it is understood in social terms, without any need for a specific criminal law definition... the idea of genocide is incomplete if one delimits the characteristics of the group that suffers the horrors and action of extermination”. 43
5. The mental element (mens rea) of genocide
44
The Prosecutor’s position on mens rea •
The mens rea may be determine on the basis of three alternatives: "1. The accused consciously desired the acts to result in the destruction, in whole or in part, of the group, as such; 2. the accused knew his acts were destroying, in whole or in part, of the group, as such; and 3. the accused knew that the likely consequence of his acts would be to destroy, in whole or in part, of the group, as such".
45
The jurisdictional approach to define mens rea
•
The “intent to destroy, in whole or in part, a group as such” gives genocide its speciality and distinguishes it from an ordinary crime and other crimes against international humanitarian law.
•
Prosecutor v. Kayishema and Ruzindana (1999), § 91; Prosecutor v. Krstic, Judgment of 2 August 2001, § 572: the mens rea must be formed prior to the commission of the genocidal acts. The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent.
46
… Proof of the requisite intent •
Specific intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact.
•
Prosecutor v. Akayesu (1998), § 523: it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Tribunals to infer the genocidal intent of a particular act. 47
•
In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated that “the relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a group in whole or in part.”
•
Prosecutor v. Rutaganda, Judgement and Sentence of 6 December 1999, § 63: “in practice, intent can be, on a case-by-case basis, inferred from the material evidence submitted to the Chamber, including the evidence which demonstrates a consistent pattern of conduct by the Accused”
48
The mens rea in Art. 30 ICC Statute 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. 49
Is specific plan to destroy an element of genocide?
•
Although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without such a plan, or organisation.
•
Some authors have noted that “it is virtually impossible for the crime of genocide to be committed without some or indirect involvement on the part of the State given the magnitude of this crime”; however, “it is unnecessary for an individual to have knowledge of all details of the genocidal plan or policy.”
50
Genocide and Crimes against Humanity •
The crime of genocide is a type of crime against humanity. Genocide, however, is different from other crimes against humanity. The essential difference is that genocide requires the specific intent to exterminate a protected group (in whole or in part) while crimes against humanity require the civilian population to be targeted as part of a widespread or systematic attack.
51
… Genocide and Extermination •
Prosecutor v. Kristic (2001): the crime of extermination must, by its very nature, be directed against a group of individuals, it requires an element of mass destruction and it embraces situations where a large number of people who do not share any common characteristic are killed.
No discriminatory element is required.
52
… Genocide and Persecution •
Prosecutor v. Kupreskic et al., Judgment of 14 January 2000: “… the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. … persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation)”
53
•
“While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide”
54
… Genocide and Apartheid • •
Convention on the Suppression and Punishment of the Crime of Apartheid (1973): Preamble: “… in the Convention on the Prevention and Punishment of the Crime of Genocide, certain acts which may also be qualified as acts of apartheid constitute a crime under international law…” Art. 2: “… the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them: (…) (b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part; …”
Art. 7, para. 1, lett. j, ICC Statute: apartheid is qualified as a crime against humanity 55
Genocide as “crime of crimes” •
In Kambanda (Judgement and Sentence of 4 September 1998, § 16) and Serushago (Sentence of 5 February 1999, § 15), the ICTR defined it as “the crime of crimes”.
•
In Krstić the ICTY Appeals Chamber stated that “Among the grievous crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity.”(§ 36). 56
•
In Kayishema and Ruyindana, the accused alleged “that the Trial Chamber erred in finding that genocide is the “crime of crimes” because there is no such hierarchical gradation of crimes”. The Appeals Chamber agreed: “The Appeals Chamber remarks that there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are “serious violations of international humanitarian law”, capable of attracting the same sentence” (§ 367)
57
6. The physical element (actus reus) of genocide
58
Genocidal acts (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group”
59
•
Criminal acts, depending upon the definition of the crime, may require proof not only of the act itself, but also of a result. Put differently, the material element includes a result. Three of the five acts defined in article II require proof of a result: (a) (b) (e). Two of the acts do not demand such proof, but require a further specific intent: (c) (d). In the three cases where the outcome is an element of the offence, the accused may still be subject to prosecution for attempting to commit the crime even if non result can be proven. Proof of a crime of result also requires evidence that the act itself is a “substantial cause” of the outcome.
60
•
The actus reus of an offence may be either an act of commission or an act of omission. For example, a commander or superior may be found guilty of genocide for failing to intervene when subordinates are actually carrying out of genocide. This example, while not specifically contemplate by the Convention, is clearly recognized in statues of the ad hoc tribunal as well as in the Rome Statute. Nevertheless, troubled by the possibility that crimes of omission might not be adequately covered, Whitaker proposed an amendment to article II: “In any of the above conduct, a conscious act or act advertent omission may be as culpable as an act of commission”.
61
… Killing
•
Killing is homicide committed with the intent to cause death
•
The conduct mast take please in the contest of a manifest pattern of similar conduct
62
Causing serious bodily or mental harm to members of the group …
•
In the Adolf Eichmann case, who was convicted of crimes against the Jewish people, genocide under another legal definition, the District Court of Jerusalem stated in its judgment of 12 December 1961, that serious bodily or mental harm of members of the group can be caused " by the enslavement, starvation, deportation and persecution [...] and by their detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture”.
63
•
Serious Bodily Harm: In the Akayesu Judgement, it was held that serious bodily harm does not necessarily mean harm that is permanent or irremediable. The Akayesu Judgement further held that acts of sexual violence, rape, mutilations and interrogations combined with beatings, and/or threats of death, were all acts that amount to serious bodily harm. In Kayishema-Ruzindana Judgment, this phrase had been construed to mean harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses.
•
The phrase “serious mental harm” should be determined on a case-bycase. 64
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part …
•
The explanation within the Draft Convention, prepared by the U.N. Secretariat which interpreted this concept includes circumstances which will lead to a slow death, for example, lack of proper housing, clothing, hygiene and medical care or excessive work or physical exertion.
•
The conduct includes methods of destruction which do not immediately lead to the death of members of the group.
•
Therefore the conditions of life envisaged include rape, the starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period, provided the above would lead to the destruction of the group in whole or in part. 65
Imposing measures intended to prevent births within the group …
•
Sterilization or castration were qualified as genocide by Supreme National Tribunal of Poland, Poland v. Hoess, and by US Military Tribunal, USA v. Geifelt et al.
•
In Secretariat draft Convention, “restricting births” was qualified as “biological genocide”, a rubric which contained three subcategories: sterilization an / or compulsory abortion, segregation of sexes, and obstacles to marriage.
•
Imposing measures intended to prevent births within all population of a country (see Chinese law) or voluntary abortion (legal measure in many countries) are not acts of genocide
66
… Akayesu case
•
the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.
•
Furthermore, … measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate. 67
… Forcibly
transferring children of the group to another group
•
In Secretariat draft Convention, this conduct was qualified as “cultural genocide”
•
The Convention does not explain the meaning of “child”; in Convention on the rights of children child means person under 18 years ( see also Elements of Crimes of the ICC Statute)
•
Akayesu case: With respect to forcibly transferring children of the group to another group, … as in the case of measures intended to prevent births, the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another. 68
•
It is scandalous the judgment of the High Court of Australia in the cases Kruger and Others and Bray and Others in 1997. The Court did not qualified the forcibly transferring children of the aboriginal group to white group, authorized by law (The Aboriginals Ordinance 1918 – Northern Territory), because the law did not have an intention to destroy the aboriginal group as such.
69
7. Acts of genocide not punishable under the Convention
Ethnic cleansing as genocide? •
Ethnic cleansing is a forcible dislocation of populations.
•
ILC, in the commentary to Draft Code of Crimes against the Peace and Security of Mankind (1996), affirms that this type of conduct in certain circumstances could constitute a crime against humanity [Arbitrary deportation or forcible transfer of population] or a war crime [Unlawful deportation or transfer of unlawful confinement of protected persons]. Moreover, the the forcible transfer of members of a group, particularly when it involves the separation of family members, could also constitute genocide [Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part]
71
•
"The Situation in Bosnia and Herzegovina”, A/RES/47/121, 18 December 1992, adopted with 57 abstentions: “…the abhorrent policy of 'ethnic cleansing' … is a form of genocide”
•
Osijek District Court, 25 June 1997, K.64/97-53: “the goal to drive out the Croats from the village and make Branjina the ethnically clean Serb village” was qualified as genocide
•
Federal High Court of Germany, Jorgic Case, Judgment, 30 Avril 1999: “…Contrary to the meaning suggested by the term genocide, the offence under § 220a of the Criminal Code does not imperatively require that the perpetrator is intending the physical destruction of the group. It is sufficient that he is acting to destroy the group in its social existence ("as such"), as a social unit in its particularity and singularity and in its fellow feeling (…)” 72
Rape as genocide? Different qualifications of rape in ad hoc Tribunals: •
Akayesu case: rape as torture
•
Furundzija case: rape as a war crime
•
Nikolic case: rape as a crime against humanity
73
… Akayesu case: “Killing
members of the group”
“in most cases, the rapes of Tutsi women in Taba, were accompanied with the intent to kill those women. Many rapes were perpetrated near mass graves where the women were taken to be killed . ... In this respect, it appears clearly to the Chamber that the acts of rape and sexual violence, as other acts of serious bodily and mental harm committed against the Tutsi, reflected the determination to make Tutsi women suffer and to mutilate them even before killing them, the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process”
74
Akayesu case: “Causing serious bodily or mental harm to members of the group” …
"With regard … to … rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole …” 75
Akayesu case: “Imposing measures intended to prevent births within the group” …
This measures are “sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages”. “In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group”. “[M]easures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate” 76
Kayishema-Ruzindana case: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” …
“the conditions of life envisaged include rape, the starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period, provided the above would lead to the destruction of the group in whole or in part”
77
… S/RES/ 1820 (2008), 19 June 2008
“3. Demands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include, inter alia, enforcing appropriate military disciplinary measures and upholding the principle of command responsibility, training troops on the categorical prohibition of all forms of sexual violence against civilians, debunking myths that fuel sexual violence, vetting armed and security forces to take into account past actions of rape and other forms of sexual violence, and evacuation of women and children under imminent threat of sexual violence to safety; (…)”
78
Cultural genocide R. Lemkin: “There are three basic phases of life in a human group; physical existence, biological continuity (through procreation), and spiritual or cultural expression. Accordingly, the attacks on these three basic phases of the life of a human group can be qualified as physical, bio-logical, or cultural genocide. It is considered a criminal act to cause death to members of the above-mentioned groups directly or indirectly, to sterilize through compulsion, to steal children, or to break up families. Cultural genocide can be accomplished predominantly in the religious and cultural fields by destroying institutions and objects through which the spiritual life of a human group finds expression, such as houses of worship, objects of religious cult, schools, treasures of art, and culture. By destroying spiritual leadership and institutions, forces of spiritual cohesion within a group are removed and the group starts to disintegrate. This is especially significant for the existence of religious groups. Religion can be destroyed within a group even if the members continue to subsist physically” 79
•
Supreme National Tribunal of Poland, Poland v. Greiser (1948): “attacks on Polish culture and learning” as genocide
80
… Art. 1, § 3, Draft Convention by UN Secretary-General “Destroying the specific characteristics of the group by: (a) forcible transfer of children to another human group; or (b) forced and systematic exile of individuals representing the culture of a group; or (c) prohibition of the use of the national language even in private intercourse; or (d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship” 81
… Art. III, Draft Convention by ECOSOC
“In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion, or culture of a national, racial or religious group on grounds of the national or racial origin or the religious belief of its members such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group”
82
… UNESCO Declaration of San José (11 December 1981)
“Ethnocide means that an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language, whether individually or collectively. This involves an extreme form of massive violation of human rights… 1. We declare that ethnocide, that is cultural genocide, is a violation of international law equivalent to genocide, which was condemned by the United Nations Convention on the Prevention an Punishment of the Crime of Genocide”
83
… Kristić case (2001) “despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide” (=> reference to ‘recent developments’ indicates German constitutional court’s expansive reading of the term genocide) The deliberate destruction of religious buildings and houses belonging to members of a protected group may be taken into account as evidence of intent to destroy a group as such 84
… Partial Dissenting Opinion of Judge Shahabuddeen in Krstić Appeal (Judgment of 19 April 2004)
“The proposition that the intended destruction must always be physical or biological is supported by much in the literature. However, the proposition overlooks a distinction between the nature of the listed “acts” and the “intent” with which they are done. From their nature, the listed (or initial) acts must indeed take a physical or biological form, but the accompanying intent, by those acts, to destroy the group in whole or in part need not always lead to a destruction of the same character”
85
… Protection of cultural heritage as human rights of the minorities
•
Art. 27 International Covenant on Civil and Political Rights: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”.
86
… Cultural destructions as a war crime •
The Hague Regulations respecting the laws and customs of war on land (1907), art. 56: “All seizure of, destruction or wilful damage done to institutions [dedicated to religion, charity and education, the arts and sciences, even when State property], historic monuments, works of art and science, is forbidden…”.
•
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, art. 53: “it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”
•
Convention for the Protection of Cultural Property in the Event of Armed Conflict (14 May 1954) 87
Basic Bibliography
•
Boustany K., Dormoy D., Génocide(s), Bruxelles, 1999
•
Cassese A., Genocide, in, The Rome Statute of the International Criminal Court: A Commentary, Vol. I (a cura di Cassese A., Gaeta P., Jones J.R.W.D.), Oxford, 2002, pp. 335-351
•
Gaeta P. (ed.), The UN Genocide Convention. A Commentary, Oxford, 2009
•
Graven J., Les Crimes contre l’Humanité, in Recueil des Cours de l’Académie de droit international, 76, 1950, pp. 433-605
•
Jescheck H.H., Genocide, in Encyclopedia of Public International Law, 1985, vol. 8, pp. 541-544
•
Lemkin R., Axis Rule in Occupied Europe, Washington, 1944
•
Robinson N., The Genocide Convention. A Commentary, New York, 1960
•
Schabas W.A., Genocide in International Law. The Crime of Crimes, II edition, Cambridge, 2009
•
Verdirame G., The Genocide Definition in the Jurisprudence of the Ad hoc Tribunals, in International and Comparative Law Quarterly, 49, 2000, pp. 578-598 89
Detail of a drawing by a young child in response to the prompt: “Draw a picture of what your life in Darfur is like”, http://genocideinterventionfund.org/GIF_index.php
90