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Max Planck Encyclopedia of Public International Law [MPEPIL]

Genocide

William A. Schabas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 15 December 2018

Subject(s):
Genocide — Aggression — Individual criminal responsibility — Command responsibility — Minorities — Crimes against humanity — War crimes — Protected persons and property

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Genocide is defined within international law as one of five punishable acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such. The five punishable acts are killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. The definition first appears in Art. II Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’), adopted by the United Nations General Assembly on 9 December 1948. It has been repeated without change in such instruments as the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (‘ICTY Statute’), the Statute of the International Criminal Tribunal for Rwanda (ICTR) (‘ICTR Statute’), and the Rome Statute of the International Criminal Court (ICC) (‘ICC Statute’). There have been calls for amendment of the definition over the years, and several State[s] have made changes and innovations in the course of domestic implementation of the international norm (see also International Law and Domestic [Municipal] Law). Nevertheless, since 1948 international institutions have resisted appeals to enlarge or modify the concept, in marked contrast with the dramatic evolutions that have taken place with respect to the other important categories of international crimes, namely crimes against humanity and war crimes.

The Genocide Convention has been called the first treaty on human rights to be adopted within the UN system. It serves to protect what have often been described in a general sense as minorities or national minorities from the ultimate attack on their existence, physical destruction (see also Minorities, International Protection). More expansive interpretations of the concept of genocide also see it addressing threats to survival of the culture of minorities. In this broader formulation, it is often associated with the notion of ethnic cleansing, an expression that lacks precise definition but that definitely has its own autonomous legal existence.

B.  Historical Evolution of Legal Rules

The term genocide was invented by an academic of Polish Jewish origin, Raphael Lemkin, in his book Axis Rule in Occupied Europe, which was published in 1944. A year later, it was being commonly used to describe the destruction of the European Jews by the Nazi regime. The prosecutor at the International Military Tribunal in Nuremberg used the term in the pleadings, although it does not appear in the judgment. At the first session of the UNGA, in late 1946, Cuba, India, and Panama submitted a draft resolution on genocide that was adopted with modifications. It provides the first attempt at a legal definition of genocide, one that is somewhat broader than the version that has now become authoritative. UNGA Resolution 96 (I) of 11 December 1946 called for the preparation of a convention on genocide. The States that proposed the resolution professed two principal aims: that genocide should be recognized as a crime under international law that could be committed in peacetime as well as in time of war, and that it should be subject to universal jurisdiction (see also Criminal Jurisdiction of States under International Law;). They were only partially successful. UNGA Resolution 96 (I) eliminates the nexus with armed conflict that had characterized the cognate concept of crimes against humanity, in the Nuremberg judgment, although it lacks the explicit formulation—which would appear in the subsequent convention—that genocide is a crime committed in time of peace or in time of war. The attempt at recognition of universal jurisdiction over genocide disappeared during the drafting of the resolution.

Following adoption of UNGA Resolution 96 (I), drafting on the proposed convention was undertaken in three stages. Initially, an expert group organized by the UN Secretariat and comprised of Raphael Lemkin, Henri Donnedieu de Vabres, and Vespasian V Pella, prepared a draft convention. It took a relatively expansive approach to the concept, recognizing three categories of genocide: physical, biological, and cultural. A draft statute for an international criminal court was also prepared. It was largely inspired by the 1937 Convention for the Creation of an International Criminal Court, an instrument adopted within the system of the League of Nations but which never entered into force. The expert proposals, known as the Secretariat Draft, were then forwarded to an ad hoc committee established by the Economic and Social Council that was made up of several interested States: China, France, Lebanon, Poland, the Soviet Union, the United States of America (‘US’), and Venezuela. Its revised version of the draft provided the basis for the debates in the third session of the UNGA, which met in Paris in the latter half of 1948. The Genocide Convention was adopted on a roll-call vote by 56 in favour, with none opposed and no abstentions (nternational Organizations or Institutions, Voting Rules and Procedures). Two other resolutions were adopted in conjunction, one dealing with non-self-governing territories and the other mandating subsequent work aimed at creating an international criminal court.

1.  The Genocide Convention

The Genocide Convention’s Preamble begins by affirming that genocide is a crime under international law, ‘contrary to the spirit and aims of the United Nations and condemned by the civilized world’ (para. 1). It affirms that genocide has inflicted great losses on humanity ‘at all periods of history’ (para. 2), an important statement that is relevant to claims that the crime did not exist, and therefore could not be committed, prior to the adoption of a definition by the UNGA. The Genocide Convention contains no reference to either the Nuremberg judgment or to crimes against humanity. This was quite intentional, and was meant to avoid any suggestion of the nexus with armed conflict about which the International Military Tribunal insisted with respect to convictions for crimes against humanity.

Art. I Genocide Convention establishes the general obligation upon States Parties to ‘prevent and punish’ genocide, which is labelled a ‘crime under international law’. The convention says virtually nothing more about the scope of the obligation to prevent genocide, except to the extent that prosecution of the crime can be considered an act of prevention, in that one of its objectives is deterrence. The import of the obligation to prevent genocide remained vague until it was addressed by the International Court of Justice (ICJ) in its two 1993 orders in the application filed by Bosnia and Herzegovina against the Federal Republic of Yugoslavia and in the corresponding judgment of 26 February 2007 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Bosnia and Herzegovina v Serbia and Montenegro]; ‘Bosnian Genocide Case’). In 2005 the Outcome Document of the Summit of Heads of State and Government of 16 September (‘2005 World Summit Outcome’) defined a responsibility to protect against genocide with two dimensions, one internal and one external. It affirms that ‘[e]ach individual State has the responsibility to protect its populations from genocide’, something that ‘entails the prevention of such crimes, including their incitement, through appropriate and necessary means’ (UNGA Res 60/1 para. 138; see also Responsibility to Protect). Furthermore, the international community pledges to take collective action, ‘in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide’ (ibid para. 139).

Art. II Genocide Convention sets out the definition of the crime. The chapeau begins with the phrase ‘any of the following acts’, these being listed in five subsequent paragraphs. These acts must be ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The different elements of the definition have been examined in case law and scholarly writing in great detail. Most of this interpretative work has been undertaken since the late 1990s, when the activities of the international criminal tribunals for the former Yugoslavia and Rwanda were well underway.

Art. III Genocide Convention completes the definition by listing five modalities of the commission of genocide: genocide itself, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. These forms of commission of the crime have been incorporated within the provision defining genocide in the Statutes of the ICTR and the ICTY. The ICC Statute takes a different approach, presenting the forms of commission of the crime within a general provision applicable not only to genocide but also to crimes against humanity, war crimes and, once a final definition is adopted, aggression (see also Criminal Responsibility, Modes of; Individual Criminal Responsibility).

Art. IV Genocide Convention affirms a rule that was first set out in the Charter of the International Military Tribunal and that was applied in the Nuremberg judgment: ‘Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’ (see also Command Responsibility). It was not, however, the intent of the drafters of the Genocide Convention to eliminate forms of immunities recognized by public international law. Rather, Art. IV Genocide Convention deals with the defence of official capacity, which might be invoked by a senior official in response to a prosecution before the courts of that person’s own State. Although judicial decisions have sometimes treated the defence of official capacity and immunities as being equivalent in scope, the distinction between the two is apparent in the two paragraphs of Art. 27 ICC Statute.

10  In terms of the obligations that the Genocide Convention imposes, Art. V lies at the core. It requires States Parties to enact necessary legislation to give effect to the provisions of the convention. More particularly, they are required to provide effective penalties for persons guilty of genocide or of the other acts enumerated in Art. III Genocide Convention. State practice in the implementation of Art. V Genocide Convention is erratic. Some States have incorporated the provisions of the convention without substantial change, imposing the most severe penalties that exist within their own domestic criminal justice systems. Others have taken the Genocide Convention as an invitation to innovate, developing their own unique definitions of genocide. For example, the French Code penal describes genocide as the destruction of any group based upon arbitrary criteria. The Canadian legislation refers to groups that are protected as a matter of customary international law, although it deems the convention definition—as repeated in Art. 6 ICC Statute—to be an authoritative statement of customary international law as of 17 July 1998. Still others have taken the view that because the underlying acts of genocide, such as killing, are already punishable under their domestic criminal legislation, no further action is necessary to give effect to the Genocide Convention. Finally, there are many States that ratify or accede to the convention but that clearly give little thought or attention to the obligations that flow from it, especially in the area of domestic implementation.

11  One of the most delicate provisions in the negotiation of the Genocide Convention concerned jurisdiction over prosecutions. The original proposal in the first session of the UNGA was for some recognition that genocide was an international crime subject to universal jurisdiction. The first draft of UNGA Resolution 96 (I) said: ‘Whereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern’ (UNGA Doc A/BVR/50). But there was no acknowledgement of universal jurisdiction in the final version of the resolution. Two years later, when the Genocide Convention was being drafted, the Sixth Committee of the UNGA expressly decided not to recognize universal jurisdiction over genocide in the convention. Instead, Art. VI Genocide Convention declares that genocide ‘shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction’.

12  Until courts in Rwanda began hearing genocide cases in 1997, there had been no prosecutions pursuant to this provision before courts of territorial jurisdiction. As for the international penal tribunal whose jurisdiction was accepted by States, this did not exist until the 1990s. According to the ICJ, the ICTY was such a court, at least to the extent that Serbia and Montenegro had accepted its jurisdiction by ratifying the Dayton Peace Agreement in 1995. Certainly, Art. VI Genocide Convention is now a total anachronism. In 1993, the UN Security Council established the ICTY, whose jurisdiction over the crime of genocide is not authorized by Art. VI Genocide Convention. Much earlier, in the Eichmann Case Israeli courts rejected a challenge by Adolf Eichmann against their exercise of jurisdiction by claiming this was authorized under customary international law, despite the provisions of the Genocide Convention and the import of the debates in the UN Sixth Committee (Attorney General of the Government of Israel v Adolf Eichmann[District Court Jerusalem Judgment of 12 December 1961] paras 20–38; Attorney General of the Government of Israel v Adolf Eichmann[Supreme Court Judgment of 29 May 1962] para. 12). Many States, including Canada, Spain, Germany, Belgium, Norway, the US, and the Netherlands, have now enacted legislation to enable the exercise of universal jurisdiction over genocide, without protest or objection. The ICTY and the ICTR have enacted rules of procedure and evidence that recognize universal jurisdiction over genocide, allowing them to transfer cases from the international jurisdiction to a national justice system prepared to prosecute (International Criminal Courts and Tribunals, Complementarity and Jurisdiction). When the transfer of cases on this basis has been discussed in the UNSC, there has been no objection from members.

13  Art. VII Genocide Convention states that genocide shall not be considered as a political crime for the purpose of extradition. The provision concludes with a pledge by the States Parties to grant extradition in accordance with their laws and treaties in force. Art. VIII Genocide Convention states that any Party may call upon the competent organs of the UN to take such action under the United Nations Charter they consider appropriate for the prevention and suppression of genocide. The provision is unnecessary, of course, and has only been invoked once. In September 2005, the US Secretary of State cited Art. VIII Genocide Convention in calling upon the UNSC to take action with respect to the ongoing atrocities in the Darfur region of Western Sudan. The UNSC responded by establishing a Commission of Inquiry and, subsequently, by referring the situation in Darfur to the ICC in accordance with Art. 13 (b) ICC Statute (UNSC Res 1593 [2005]).

14  The Genocide Convention contains a compromissory clause, Art. IX, by which States Parties accept the jurisdiction of the ICJ with respect to disputes relating to the interpretation, application, or fulfilment of the convention, including those relating to the responsibility of a State for genocide. Many States chose to formulate reservations to this provision (Treaties, Multilateral, Reservations to). The legality of reservations to Art. IX Genocide Convention was endorsed by the ICJ in its advisory opinion (Genocide Convention, Reservations [Advisory Opinion]), although individual opinions in the February 2006 ruling in the case of Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v Rwanda) suggest that some judges are prepared to reconsider the precedent (see also Armed Activities on the Territory of the Congo Cases; Congo, Democratic Republic of the).

15  The first application to the ICJ under the provision, filed by Pakistan against India in the early 1970s, was discontinued following political negotiation[s]. Art. IX Genocide Convention was invoked several times during the 1990s as a basis of jurisdiction. In the application filed by the Federal Republic of Yugoslavia against several Member States of the North Atlantic Treaty Organization (NATO), in 1999, the ICJ dismissed the suit against the US and Spain on the basis of their reservations to Art. IX Genocide Convention (Yugoslavia, Cases before the ICJ). The case against the other respondent States was later declared inadmissible. Similarly, in its February 2006 ruling, the ICJ gave effect to Rwanda’s reservation to Art. IX Genocide Convention, dismissing a suit by the Democratic Republic of Congo. On 26 February 2007, the ICJ rendered judgment in the application of Bosnia and Herzegovina against the Federal Republic of Yugoslavia in the Bosnian Genocide Case. It confirmed the finding of the ICTY in Prosecutor v Krstić (Krstić Case) that genocide had been committed at Srebrenica in July 1995, but that there was no generalized campaign or programme of genocide during the conflict as a whole.

16  The Genocide Convention entered into force on 11 January 1951, after obtaining the twentieth ratification required for entry into force by Art. XIII Genocide Convention. As of 31 December 2006, the Genocide Convention had 140 ratifications or accessions. This is a relatively small number, compared with the levels of ratification of other important treaties in the area of human rights and humanitarian law. The reasons for this are not evident, especially when it is considered that the ICJ has affirmed that the fundamental norms of the Genocide Convention belong to customary international law.

2.  Subsequent Developments

17  Although the Genocide Convention remains the principal instrument applicable to genocide, there have been other subsequent normative developments. The Genocide Convention says nothing about statutory limitation. This shortcoming is addressed in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968. The crime of genocide is punishable by the two ad hoc tribunals established by the UNSC, for the former Yugoslavia and Rwanda, but not by the other two international criminal tribunals established by the UN with respect to Sierra Leone and Lebanon (see also Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia]). Genocide figures as the first crime within the subject-matter jurisdiction of the ICC. There have also been attempts to strengthen the vague obligations to prevent genocide. The Constitutive Act of the African Union (AU), adopted in 2000, recognizes in Art. 4 (h) ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity’. Five years later, the 2005 World Summit Outcome confirms the same principle, with respect to the UN. The Pact on Security, Stability and Development in the Great Lakes Region (Great Lakes Region, Africa), adopted on 14/15 December 2006, includes a Protocol on the Prevention of and Curbing of the Crime of Genocide, Crimes of War, Crimes against Humanity (Art. 8 Pact on Security, Stability and Development in the Great Lakes Region).

18  Unlike subsequent human rights treaties, the Genocide Convention does not provide for any enforcement mechanism. There have been isolated calls to establish a treaty body (Human Rights, Treaty Bodies), similar to the Human Rights Committee whose existence derives from the International Covenant on Civil and Political Rights (1966). The Committee for the Elimination of Racial Discrimination, which is created by the International Convention for the Elimination of All Forms of Racial Discrimination, has indicated its intention to assume responsibilities for prevention of genocide by adopting guidelines and indicators, and pledging an active role when potential crises develop. On the tenth anniversary of the Rwandan Genocide in July 2004, the UN Secretary-General announced the appointment of a Special Adviser on the Prevention of Genocide. Later that year, this special adviser, Juan E Méndez, directly addressed the UNSC concerning the conflict in Darfur, but a year later, he was denied direct access to the body.

C.  Special Legal Problems

1.  Cultural Genocide

19  When the Genocide Convention was being prepared, the concept was deconstructed into three types of genocide: physical, biological, and cultural. Cultural genocide was highly controversial, and was ultimately excluded from the Genocide Convention by a vote in the UN Sixth Committee. The accepted definition of genocide speaks of intent to ‘destroy’ (Art. II Genocide Convention), without further specification. An interpretation relying upon the drafting history would exclude destruction of the group through cultural means, such as prohibition of language or religion (see also Interpretation in International Law). But the same conclusion does not result from a literal interpretation. A similar ambiguity arises when the punishable acts of genocide are concerned. Although four of the punishable acts involve physical or biological destruction, the fifth act, forced transfer of children of the group, had always been included in the list of acts of cultural genocide because it did not involve the physical destruction of the victims. It was added to Art. II Genocide Convention by the drafters as an exception to the general exclusion of cultural genocide. The same interpretative conundrum presents itself. The two approaches, one relying on the drafting history and the other on a literal reading, are reflected in the case law (see eg in the Krstić Case the dissenting opinion of Judge Shahabuddeen in the appeal judgment of 19 April 2004 at 99).

20  Perhaps the most extreme form of cultural genocide is subsumed within the term ethnic cleansing. Although no formal definition exists of ethnic cleansing, it has been used in resolutions of the UNGA (eg UNGA Res 47/121 of 18 December 1992 concerning the situation in Bosnia and Herzegovina) and other bodies, and it appeared in the 2005 World Summit Outcome which outlined a responsibility of each individual State ‘to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (UNGA Res 60/1 para. 138). In its February 2007 judgment in the Bosnian Genocide Case, the ICJ confirmed the distinction between genocide and ethnic cleansing, defining the latter as ‘rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area’ (para. 190). The court noted that a proposal to include a concept analogous to ethnic cleansing as a sixth act of genocide was deliberately excluded from Art. II Genocide Convention in 1948. The exclusion of ethnic cleansing from the Genocide Convention reflects a widespread view at the time that the forced displacement of ethnic groups was actually permitted under international law (see also Forced Population Transfer; Population, Expulsion and Transfer). The mass deportation of ethnic Germans in Central and Eastern Europe that followed World War II was authorized by the Potsdam Agreement of July 1945. It was to be conducted ‘in an orderly and humane manner’, according to Art. 12 of the agreement, but in practice was associated with much human suffering.

21  Today, such acts would be condemned as crimes against humanity. The debate that has been of special concern to the ICTY is whether such acts rise to the level of genocide. The result, in the case law of the tribunal, is still unclear. The expulsion of Bosnian Muslims from Srebrenica has been condemned by the ICTY on several occasions, but the characterization of this atrocity as genocide is clearly associated with the mass murder of the adult men in the group (Krstić Case). It is unlikely that the ICTY would have reached a verdict of genocide if the measures were not associated with physical destruction on such a scale.

2.  Definition of Protected Groups

22  The four groups contemplated by the definition of genocide—national, ethnic, racial, and religious—elude precise definition. The drafting history of the Genocide Convention makes it clear that some groups, such as political groups, were quite intentionally excluded. The rejection of attempts at amendment of the definition confirms its relatively narrow scope, also providing good arguments against its enlargement by interpretation.

23  The ICTR, in one of its first verdicts, confronted the difficulty of analysing the scope of the groups protected by the definition. It was uncomfortable with the characterization of the Rwandan Tutsi under any of the four rubrics. The trial chamber reasoned that the drafters of the Genocide Convention had intended the definition to cover all permanent and stable groups. This innovative interpretation has not found support in other judgments of the ad hoc tribunals. It was endorsed, however, by the Report of the Commission of Inquiry into Darfur established by the UNSC in late 2004.

24  Other trial chambers of the ad hoc tribunals have tended to approach the problem from a subjective rather than an objective standpoint. The issue, they have explained, is not whether the victims belong to a national, ethnic, racial, or religious group in an objective sense, but rather whether they are perceived as such by their persecutors. The subjective approach seems to provide a more workable methodology for applying the definition.

3.  State Policy

25  The definition of genocide requires that the crime be committed with intent to destroy the group. But it makes no reference to the policy of a State or some analogous entity as an element of the crime. An early judgment of the ICTY took the view that while the presence of a State plan or policy was a compelling fact in determining whether or not genocide was being committed, it was not required by the definition (Prosecutor v Jelisić [Appeal Judgment] [5 July 2001] para. 48). In other words, the crime of genocide could be committed by an individual, acting alone. Largely in reaction to this ruling, the Assembly of States Parties of the ICC adopted a provision in the Elements of Crimes required for punishable acts of genocide that ‘[t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’ (Elements of Crimes Art. 6 (a) para. 4; Art. 6 (b) para. 4; Art. 6 (c) para. 5; Art. 6 (d) para. 5; and Art. 6 (e) para. 7).

4.  Quantitative Dimension

26  Genocide consists in the intent to destroy a protected group ‘in whole or in part’ (Art. II Genocide Convention). The expression usefully denies a defence to those who may argue that they have not effected or planned to effect the total destruction of a group throughout the globe. The International Law Commission (ILC) has taken the view that the word substantial should be implied. Thus, the destruction of a relatively isolated group of individuals belonging to an ethnic group would not constitute the crime of genocide. Nevertheless, a group can be defined in a narrow geographic context. The Appeals Chamber of the ICTY in the Krstić Case said that the intent had been to destroy a part of the Bosnian Muslims, namely those living in the Srebrenica region (at paras 24–38).

27  There is also some authority for the view that part of the group may be identified in a qualitative sense, by its importance to the survival of the group. Accordingly, the destruction of the political or religious leaders of a group may be viewed as a threat to the entire existence of the group, as a whole. The ICTY has appeared to endorse this approach, considering the destruction of the adult males of Srebrenica as compromising the future of the entire community (ibid para. 28).

5.  Relationship with Crimes against Humanity

28  Genocide and crimes against humanity were both defined by international law at the same period, following World War II, and in contemplation of essentially the same atrocities (see also History of International Law, since World War II). It was in reaction to the shortcomings of the definition of crimes against humanity, specifically the nexus with aggressive war recognized at Nuremberg, that certain States within the UNGA promoted the recognition of a cognate concept, genocide. The two categories of international crime coexisted in a state of some tension for nearly half a century. Crimes against humanity was broader in scope, in that it covered a range of punishable acts going well beyond destruction, and it protected any civilian population, whereas the Genocide Convention dealt only with destruction and it was addressed to a specific type of group. But at the same time, the Genocide Convention was a robust treaty, offering access to the ICJ. Nothing comparable existed with respect to crimes against humanity.

29  By the 1990s, the differences between the two categories of crime had become far less significant. In 1995, the first ruling of the appeals chamber of the ICTY established that crimes against humanity no longer had any nexus with aggressive war. That they could be committed in peacetime, like genocide, was affirmed in the ICC Statute, adopted in July 1998. Thus, post-Nuremberg the rationale for distinguishing between genocide and crimes against humanity had ceased to exist. The recognition of both genocide and crimes against humanity as core crimes within the jurisdiction of the ICC left only two significant differences between the two: the nebulous duty to prevent in Art. I Genocide Convention, and the compulsory jurisdiction of the ICJ in Art. IX Genocide Convention. The first of these differences disappeared with the 2005 World Summit Outcome (UNGA Res 60/1 paras 138–39), which associated genocide and crimes against humanity with a general responsibility to protect. Therefore the only meaningful legal consequence of a determination that an act constitutes genocide, rather than crimes against humanity, is the possibility of access to the ICJ.

30  Nevertheless, genocide retains a great symbolic significance. The stigma associated with designating acts as genocide rather than as crimes against humanity continues to feature in international political discourse, even if its legal significance is now marginal at best. The Commission of Inquiry into the atrocities committed in Darfur insisted upon the gravity of crimes against humanity in its report of 25 January 2005 (at 4). After all, the term was used to qualify atrocities in the judgment of the International Military Tribunal in 1946, and even before, in the Declaration of Russia, the United Kingdom and France of 29 May 1915 concerning the Armenian Genocide condemning ‘these new crimes of Turkey against humanity and civilization’.

31  The international criminal tribunals have frequently insisted that there is no hierarchy among the crimes within their jurisdiction. However, the message conveyed by their sentencing policy is that genocide constitutes the crime of crimes, and consistently attracts a more serious penalty. The prosecutors have reached several plea agreements with defendants involving admission of guilt for crimes against humanity in exchange for withdrawal of genocide charges, suggesting a perception by both the prosecutors and the accused that genocide is the more serious crime.

C.  International Jurisprudence and Current Developments under Domestic Law

32  Art. VI Genocide Convention promised prosecution by an international tribunal, but none was established until the UNSC ordered the creation of the ICTY in May 1993. Eighteen months later, a sister institution, the ICTR, was set up in the same manner. Both had subject-matter jurisdiction over genocide, as defined in Arts II and III Genocide Convention. At the ICTY, the prosecutor proceeded cautiously, suggesting a degree of uncertainty about whether genocide was the proper characterization of the atrocities committed during the wars in Croatia and Bosnia and Herzegovina. In 1999, following the ethnic cleansing of Kosovo, Slobodan Milošević was indicted for crimes against humanity but not genocide, although two years later, after he had been taken into custody in The Hague, an additional indictment charged Milošević with genocide in Bosnia and Herzegovina (Milošević Trial). An initial attempt to prosecute genocide where the accused was a fanatic official in a Bosnian Serb concentration camp ended in acquittal, although the accused was convicted of crimes against humanity (Prosecutor v Jelisić [Judgment] [14 December 1999]). Then on 2 August 2001 in the Krstić Case a ICTY trial chamber convicted the general of genocide for his role in the July 1995 Srebrenica massacre.

33  The appeal in the Krstić Case was partially successful. His conviction was replaced by the appeal judgment of 19 April 2004 with one of aiding and abetting genocide. Subsequent judgments of the trial chambers have shown considerable diversity, with some benches opting for a relatively strict approach and others taking a liberal construction. Several persons accused of genocide have been acquitted at trial. In some cases, the prosecutor has withdrawn genocide charges as part of a negotiated plea agreement, even when these involved the Bosnian Serb leadership. Slobodan Milošević stood trial for genocide with respect to the war in Bosnia and Herzegovina but the trial was indecisive, a result of his death while in the final stages of the case for the defence. The fact that the ICTY had failed to convict anyone for genocide during the conflict in Bosnia and Herzegovina—indictments concerning Croatia and Kosovo did not charge genocide—with the exception of the 1995 Srebrenica massacre, and the ambiguities in the prosecutor’s approach to the crime, led the ICJ to conclude that genocide had not been committed during the conflict, again with the exception of Srebrenica.

34  At the ICTR, characterization of the atrocities in Rwanda as genocide has never been in much doubt. With a few exceptions involving guilty plea agreements, defendants have been found guilty of genocide. Most of them have received sentences of life imprisonment. In 2006, the Appeals Chamber of the tribunal took judicial notice that genocide had been committed in Rwanda during 1994.

35  Like their international counterparts, national courts did not begin prosecutions for genocide until the 1990s, with one exception. In 1961, Nazi official Adolf Eichmann was convicted by the District Court of Jerusalem on the basis of an Israeli legal provision derived from Art. II Genocide Convention. The judgment, and the subsequent ruling of the Israeli Supreme Court when the conviction was appealed, provided much initial interpretation of the provisions of the Genocide Convention. The judgment did not address the difficult problem of defining the protected groups, an issue that had already been resolved in the legislation’s reference to crimes against the Jewish people.

36  Rwanda launched an ambitious attempt to prosecute genocide based on a complex legislative scheme that differentiated between categories of offenders. Thousands were convicted of genocide, and many were sentenced to death. Rwanda executed 22 offenders in April 1998 before imposing a moratorium (see also Death Penalty). In 2006 it informed the UNSC of its intent to abolish capital punishment (UN Doc S/PV/5594 at 31), a move designed to facilitate transfers of cases from the ICTR to the national courts. Confronted by the sheer magnitude of prosecuting the hundreds of thousands of genocide suspects, Rwanda devised an innovative system of accountability based upon traditional justice methods, known as Gacaca Courts.

37  There have also been a relatively small number of prosecutions in European States based upon universal jurisdiction, dealing with cases arising from Rwanda and the former Yugoslavia. A significant contribution to the evolving legal issues has been made, notably by the German Constitutional Court. In a 2000 judgment, it proposed enlarging the scope of genocide, by interpretation, so as to encompass the concept of cultural genocide (German Federal Constitutional Court [12 December 2000] 2 BvR 1290/99 [2001] NJW 1848). In the Krstić Case, a trial chamber of the ICTY acknowledged the jurisprudential development, but declined to follow it out of discomfort about a possible violation of the rule against retroactivity.

E.  Evaluation

38  Adopted in 1948 by the UNGA, the Convention for the Prevention and Punishment of the Crime of Genocide was, for several decades, more a judicial monument to the atrocities of the past than an effective tool to deal with present-day violations of human rights. This may have been proof that it did indeed operate as an effective deterrent. In the 1990s, the crime of genocide came out of hibernation to be used in both a political and judicial context to characterize atrocities in Europe, Central Africa, and Asia. Its application was almost invariably controversial, with the notable exception of Rwanda, where all but a handful of political extremists acknowledge that hundreds of thousands of Tutsi were massacred in the course of a few months in 1994 in an attempt to destroy the group.

39  Although the ICJ took a relatively conservative approach to the definition of the crime of genocide, in its Bosnian Genocide Case of 26 February 2007 it adopted a very robust approach to the obligation to prevent genocide. The court said that ‘[t]he obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide…. [T]he obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome’ (at para. 461). This obligation has never been stated so clearly. Arguably, the same duties apply by virtue of customary international law, even with respect to States that have not ratified the Genocide Convention, as well as to international organizations. For the message to be applied, the authoritative voice of the ICJ will have to be translated into effective political initiatives by the UNSC, and other bodies with both the authority and the resources to take effective action.

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