GENOCIDE AS AN INTERNATIONAL

CRIME

GENOCIDE AS AN INTERNATIONAL

CRIME

Presented By:ABSAR AFTAB ABSARPresented By:ABSAR AFTAB ABSAR

History of the Crime

• The term “genocide” was coined by Raphael Lemkin during World War II to describe the crimes committed against the Jews by the Nazis.

• The word is formed from the Greek genos, for race, and the Latin caedere, for killing.

• In reaction to the genocide carried out by the Nazis, the U.N. General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in 1948.

• Article II of the Convention marked the first time the crime was formulated in an international legal instrument.

• The wording of the crime was adopted verbatim into Art. 4 (2) of the ICTY Statute and Art. 2 (2) of the ICTR Statute. The same applies to Art. 6 of the ICC Statute.Today, the substance of Art. II of the Genocide Convention is part of customary international law and jus cogens.

Structure of the Crime

Conduct is punishable as genocide if it aims to destroy in whole or part a national, ethnic,

racial or religious group.

Protected Groups

Only groups constituted through “national,” “ethnic,” “racial,” or “religious”

characteristics are protected under the definition of the crime.

Individual Acts

The targets of attack are always individual members of the protected group. Even where the definition requires conduct against the “group,” this conduct is

conveyed through attacks on one individual group member.

Essential Requirements to Constitute Genocide

• Killing (Art. 6 [a] of the ICC Statute)

The perpetrator must have caused the death of at least one member of the group.

• Causing serious bodily or mental harm (Art. 6 [b] of the ICC Statute)

The perpetrator must have caused serious bodily or mental harm to at least onemember of the group. This can encompass (psychological) torture, mutilation orother serious damage. It is not required that the harm is permanent orirreversible; a merely temporary physical or mental impairment, however, is notsufficient.

Essential Requirements to Constitute Genocide Contd..

• Inflicting destructive conditions of life (Art. 6 [c] of the ICC Statute)

The perpetrator must have inflicted conditions of life on a group that are

calculated to bring about its physical destruction, in whole or in part. The

provision prohibits so-called slow death measures, that is, conduct that

does not kill immediately but that can (and is intended to) bring about the

death of group members over the long term. Possible conduct includes

forced labor, deportation, imprisonment in concentration camps, and

withholding necessities, such as food, clothing, shelter or medical care.

Essential Requirements to Constitute Genocide Contd..

• Imposing measures to prevent births (Art. 6 [d] of the ICC Statute)

This prohibition encompasses the imposition of measures aimed at preventing

births within the group and thereby targeting its continued biological existence,

such as sterilization, forced birth control, prohibitions on marriage, segregation

of the sexes, and rape if it causes the victim to decide not to reproduce because of

the trauma suffered.

• Forcibly transferring children of the group to another group (Art. 6 [e] of the ICC Statute)

This provision seeks to prevent children from being torn from their group and

Thus estranged from it. It encompasses the permanent transfer of children, that

is, members of the group under 18 years of age, not only by physical but also by

psychological force.

Questions on Some Aspects

1. Is the Destruction of the group required?

Even an isolated individual, acting with specific intent can, through his individual conduct, be guilty of the crime of genocide. It is not required that the group be partially or wholly destroyed.

2 Can rape be an act of genocide?

In the 1998 landmark Akayesu judgment, a Trial Chamber of the International Criminal Tribunal for Rwanda held that when rape was used as a method to destroy a protected group by causing serious bodily or mental harm to the members of the group, it constituted genocide. In addition, it explained that rape also can be used as a way to prevent births within a group. For example, in societies where ethnicity is determined by the identity of the father, raping a victim to make her pregnant can prevent the victim from giving birth to a baby within her own group.

Questions on Some Aspects Contd..

3. Are those who encourage others to commit genocide guilty of the crime?

Under Article 25 (3) (b) of the Statute, anyone who orders, solicits or induces someone to commit genocide (who carries it out or attempts to do) so is guilty of genocide. It is also a crime under the Article 23 (3) (e) if a person ''directly and publicly incites others to commit genocide''.

4. What about those who assist others in committing genocide or attempts to commit genocide?

Article 25 (3) (c) states that anyone who aids, abets or otherwise assists someone to commit genocide or attempt to commit it is guilty of genocide. Article 25 (3) (f) provides that a person who attempts to commit genocide is guilty of the crime. Although, in contrast to Article III of the Genocide Convention, conspiracy to commit genocide is not expressly defined as a crime under the Statute, Article 23 (3) (d) provides that much the same conduct is a crime.

Questions on Some Aspects Contd..

5. Who can be tried for genocide?

Anyone can be tried for genocide, no matter what the person's position. This means that not only a head of state or government minister who planned or ordered the act, but those who committed the act, whether ordinary foot soldiers or next door neighbours can be guilty of the crime. Article 33 (2) expressly provides that following a superior's orders is not a legitimate defence to genocide.

6. What is necessary to prove genocide?

As the intention to destroy all or part of a group, as such, is an essential element of the crime, it is crucial, and at the same time often very difficult, to find clear evidence of the motives and intentions that lie behind acts.

Utility of Genocide Convention

• The extent to which the Genocide Convention has contributed to both the prevention and punishment of acts of genocide, at least until the 1990s, is not impressive.

• The effectiveness of the Convention, undoubtedly, was weakened by divergent state interests and objectives at the time of its drafting, which led to a compromise accord that fell short of what proponents had envisioned.

• Effectiveness could be seen by the establishment of the two ad hoc tribunals and the International Criminal Court. But such an effectiveness is too narrow to contribute to the utility of the entire Convention as a whole

Prevention of Genocide

• While prevention shares an equal status with punishment in the Convention’s title, there are no direct prevention provisions in the treaty’s articles.

• The sources of genocide are argued to include, inter alia, human nature (see Lorenz,1966; Koestler, 1978), fears of death and non-aliveness (Charny, 1982), material deprivation, ethnic diversity (Falk, 1979), economic system (Falk, 1979), and the presence of war (Markusen, 1996), which serves as a cover for the suppression and elimination of individuals based upon their common group characteristics.

• As such, the prevention of genocide relies upon deterrence, principally in the form of the threat of punishment of those contemplating acts of genocide. For prevention through the threat of punishment to be credible, a consistent record of bringing perpetrators of genocide to justice must be established.

Punishment of Genocide

• The punishment of the crime of genocide is provided for in the Genocide Convention at two judicial levels—municipal and international—as stated in Articles V and VI.

• According to Article V, Parties to the Convention are required to enact the necessary legislation to give effect to the provisions of the Convention.

• Article VI calls for persons charged with genocide to be tried by a competent tribunal of the state of whose territory the act was committed.

Punishment of Genocide Contd..

• In instances where acts of genocide occur in the victim state’s territory, international genocide, that state enjoys full rights of prosecution, as long it is in possession of the offender.

• The second scenario involves what Kuper (1985, pp 102–104) terms domestic genocide, genocidal acts committed within a state by citizens of that state. The chief obstacle to state prosecution of its own citizens for acts of genocide is the common complicity of states in the act.

• As such, international prosecution depends upon either the creation of ad hoc tribunals for specific instances of genocide, as was the case with the former Yugoslavia and Rwanda, or the establishment of a permanent international criminal court.

International Court of Justice Cases

1. Bosnia v. Yugoslavia case

In 1993 the ICJ heard its first case regarding genocide, brought by Bosnia and Herzegoveniaagainst Yugoslavia. In its application, Bosnia claimed that the Serb effort to create a“Greater Serbia” resulted in the systematic bombing of Bosnian cities and the intentionaltargeting of its Muslim citizens. Bosnia claimed that Serbs cruelties matched those of Nazis.In its 1994 ruling the Court did not issue a finding on whether genocide wasbeing committed in Bosnia. It ask ed the government of Yugoslavia to ensure that no acts ofgenocide are committed genocide, of direct and public incitement against the Muslimpopulation of Bosnia and Herzegovenia or against any other national, ethnical, racial orreligious group.”

1. Bosnia v. Yugoslavia case

In 1993 the ICJ heard its first case regarding genocide, brought by Bosnia and Herzegovena

against Yugoslavia. In its application, Bosnia claimed that the Serb effort to create a

“Greater Serbia” resulted in the systematic bombing of Bosnian cities and the intentional

targeting of its Muslim citizens. Bosnia claimed that Serbs cruelties matched those of Nazis.

In its 1994 ruling the Court did not issue a finding on whether genocide was

being committed in Bosnia. It ask ed the government of Yugoslavia to ensure that no acts of

genocide are committed genocide, of direct and public incitement against the Muslim

population of Bosnia and Herzegovenia or against any other religious community.

Cases Contd..

2. Yugoslavia v. NATO cases

On April 29, 1999 the Federal Republic of Yugoslavia instituted proceedings before the

Court in 10 separate cases against Belgium, Canada, France, Germany, Italy, Netherlands,

Portugal, Spain, United Kingdom, and United States, accusing each of bombing Yugoslav

territory in violation of their international Obligations. The reference to the “physical

destruction of a national group” caused by the NATO bombing campaign constituted a

charge by Yugoslavia of the commission of the crime of genocide. By a vote of 11 to four, the

Court ruled in an initial decision that the Threat or use of force against a State cannot in

itself constitute an act of genocide within the meaning of Article II of the Genocide

Convention. The Court further ruled that it does not appear that bombings “indeed entail

the element of intent, towards a group” as required by the Convention’s provisions.

Cases Contd..

3. Croatia v. Yugoslavia case

On July 2, 1999 the Republic of Croatia instituted proceedings before the Courtagainst the Federal Republic of Yugoslavia for alleged violations of the Genocide

Convention between 1991 and 1995.

While the International Court of Justice did not rule in any of the cases thatacts of genocide had been committed, its application of the provisions in the1948 Genocide Convention further strengthen the Convention’s standing in

international law. At no time did the Court question the jurisdictional powersprovided to it by Article IX of the Convention, nor did the Court stray from the

legal definition of genocide provided in Article II.

Cases Contd..

OTHER EXAMPLES

4. Yugoslavia Tribunal

5. Rwanda Tribunal

SOME OTHER EXAPLES OF UNSOLVED CASES

6. Gujarat 2002

7. Iraq

8. Syria

Conclusions

The fact that 133 states have ratified the Genocide Convention signifies its global acceptanceat least in principle, and the adjudication of genocide cases by the two ad hoc tribunals andthe International Court of Justice signifies the regime’s continued utility.

Legal analysis of the specific components of the genocide regime, such as, 1946 GeneralAssembly resolution, 1948 Genocide Convention, ad hoc tribunals, ICJ rulings, statute of theInternational Criminal Court must be assessed as a whole to make these more relevant andMeaningful.

Criticizing the 1948 Convention for its limited definition of genocide or its failure toestablish an international penal tribunal fails to appreciate the path-breaking contributionof the treaty.

The International Criminal Court should not be viewed as a negative reaction to theShortcomings of the Genocide Convention, but rather as an extension of the ideals andprovisions codified in it.

The codification and adjudication of the genocide regime during the twentieth century will,accordingly, continue to influence the regime’s evolution during the twenty-first century.