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The Crime of Genocide in International Law

Introduction

Publications

The Caselaw of the ICTY and the ICTR

Links

By Martin Mennecke, LLM, PhD Fellow in International Law at DCHF

Introduction

The field of genocide studies brings together various different disciplines which all propose their own definitions of genocide. Law, or more precisely, international law, provides, however, for a definition of genocide which is special in two ways. Firstly, the definition set forth in the UN Convention on the Prevention and Punishment of the Crime of Genocide is internationally accepted by more than 130 states which have ratified this treaty. In countries such as Belgium, Switzerland, and Germany domestic courts have recently begun to hear cases involving charges of genocide. Secondly, the new international tribunals, i.e. the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the new International Criminal Court (ICC), have all adopted this definition in their respective statutes. Thus, the legal definition is also applied and tested in practice. Many genocide scholars have therefore – notwithstanding their criticism of certain aspects of the legal definition – suggested to work with Art. II of the Genocide Convention which reads as follows:

In the present Convention, genocide means any of the following acts committed with the 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.

It was the experience of the Holocaust that let the Polish lawyer Raphael Lemkin succeed in convincing international leaders to draft the Genocide Convention in 1948. During the Nuremberg trials the term “genocide” played by and large no role as the offence had formally not been introduced to international law yet. Only later proceedings under Control Council Law No. 10 referred more frequently to the crime of genocide. Even the Eichmann trial 1961 in Israel was instead based on a domestic statute as the Genocide Convention only came into force after the Holocaust. Until recently, in fact, the Genocide Convention has basically remained dormant. With the deadlock of the Cold War blocking any substantive political agreement no international proceedings against alleged genocidaires took place until the early 1990s. The creation of the ICTR and the ICTY meant a considerable change in that a whole range of indictees was tried for genocide charges – both on the international, but also on the national level.

In terms of international law this meant that the focus of scholarly attention shifted from questions of general law (e.g. what reservations can a state enter when ratifying the Convention?) to substantive issues of criminal law. It became clear that the legal definition did entail many complex problems: can sexual violence or ethnic cleansing constitute acts of genocide? How does one define the groups protected by the definition, i.e. what is for example an ‘ethnic group’? How is it to be understood when the legal definition suggests that genocide can be committed against a part of a group – what constitutes such ‘part’? These and many other questions are now addressed by the international tribunals and legal scholars.

Only four years after the first genocide conviction was rendered the meaning of the legal definition has already become much clearer. In fact, it is interesting to note that the recent jurisprudence of the two tribunals indicates that certain criticism that had been put forward by genocide scholars for many years has had a bearing on the latest interpretations. For example the often criticised omission of the notion of ’cultural genocide’ from the Genocide Convention did not hinder the ICTY Trial Chamber in the Krstic Case to refer to this very concept. Having said that, it is equally important to state that still many unresolved questions remain: Questions to the accountability of the media in inciting genocidal violence or the existence of a legal duty for states to intervene in case of a genocide await further analysis.

Publications

When the UN Convention on the Prevention and Punishment of the Crime of Genocide came into existence in 1948, numerous scholars authored articles and even monographs to this issue. However, with no legal proceedings taking place in the years following, the academic interest nearly vanished. This is why one finds a range of publications from the 1950s, but not so many stemming from the following years up to the early 1990s. The picture changed drastically with the establishing of the ICTY and the ICTR: almost all decisions have been discussed in form of case notes, many law journals have featured articles analysing the recent developments concerning the crime of genocide and its legal definition. In the following a necessarily subjective overview over the existing literature. For further references consult the very comprehensive work by William A. Schabas mentioned below; Schabas provides for a 38-page bibliography. Most publications listed below are on file with DCHF.

The Caselaw of the ICTY and the ICTR

All judgements, indictments, and other material of the ICTY and the ICTR are available online on the comprehensive websites of the ad hoc tribunals at www.icty.org and www.ictr.org respectively. In particular the following cases are of interest:

Prosecutor v. Akayesu, ICTR-96-4, 2 September 1998
This was the first conviction for the crime of genocide by an international tribunal since the drafting of the Genocide Convention. Apart from its historical significance the judgement also sets forth an in-depth study of the facts of the Rwandan genocide. Legally, the inclusion of sexual violence, more specifically of rape, into the catalogue of acts that can constitute genocide is of major importance.

Prosecutor v. Jelisic, IT-95-10, 14 December 1999 (Trial Chamber) and 5 July 2001 (Appeals Chamber)
In this case the ICTY Trial Chamber starts to explore further aspects of the legal definition of genocide. Questions such as whether a single perpetrator can commit genocide in a local community are addressed. Furthermore, the Trial Chamber and the Appeals Chamber agree that the crime of genocide requires a very specific form of intent that distinguishes genocide from other offences such as crimes against humanity. This had been disputed by the prosecution and a number of legal writers.

Prosecutor v. Krstic, IT-98-33, 2 August 2001
Another historic judgement: the first genocide conviction by an international tribunal in Europe. General Krstic was found guilty in the context of the killing of approximately 7000 male inhabitants of the Bosnian town of Srebrenica. The judgement provides for a comprehensive overview of the events and takes up the intrinsic problems surrounding an element of the legal definition of genocide: what exactly does it require to destroy a protected group “in part”?

In addition to the documents provided by the tribunals one can also use the extensive and instructional coverage provided by some non-governmental organisations on the internet. www.iwpr.net contains for example regular updates on all the proceedings before the ICTY, but also on the reactions and politics in the different regions of Former Yugoslavia. Amongst others, IWPR journalists summarise witness testimonies and analyse judgements and decisions. As a special service you can subscribe to the IWPR “Tribunal Update” that appears forthnightly. Similar information but with a focus on the jurisprudence of the ICTR is collected by www.hirondelle.org and www.diplomatiejudiciaire.com.

Links

www.unhchr.ch/html/menu3/b/p_genoci.htm
Convention on the Prevention and Punishment of the Crime of Genocide, approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948, entry into force 12 January 1951.

www.unhchr.ch/html/menu3/b/treaty1gen.htm
Status of ratifications, reservations and declarations to the UN Genocide Convention.

www.menneskeret.dk/
tema/forbrydelser/intnatdok/#fnskonventionomforebyggelseafogstrafforfolkedrab1948
An introduction to the UN Convention, its history and current application through the ad hoc tribunals in Danish.