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Genocide Under International Criminal Law

Written by: Mohi Kumari - LL.M. 2nd year, Criminal Law, Rajiv Gandhi National University of Law, Patiala
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  • Genocide is not a wild beast or a natural disaster. It is mass murder deliberately planned and carried out by individuals, all of whom are responsible whether they made the plan, gave the order or carried out the killings. Whatever its scale, genocide is made up of individual acts, and individual choices to perform them. So human individuals need to make the commitment, as early in life as possible, that they will have no truck with it. To do that, the way genocide becomes possible has to be understood.

    Historical Overview
    The systematic annihilation of entire groups of people has cut a broad swathe of blood through human history. The manifestation of the crime is as varied as the motives for it and the events that have triggered it. Genocide particularly marks the face of the 20th century. At the start of World War 1, Armenians living in turkey were the victim of an extermination campaign in which the estimated number of death ranged from 500000 to a million. The tragic climax of the history of genocide was the Holocast, the Nazi extermination of the European Jews.

    More than six million Jews fell victim t due to the extermination policy of Hitler. They were used to kill them by putting them in gas chamber and they were forced to work as bonded labour and their behavior was very inhuman towards them. On 9th December 1948, as a reaction to nazi genocide, the convention on the prevention and punishment of the crime of genocide was adopted. But the continuation of genocide did not end up with World War 2. it again arise in Nigeria which shaken the whole world. Towards the end of 20th century in Rawanda civil war broke out in 1994 which took form of genocide. Again in July 1995 genocide was committed during the war in Bosnia. Despite the adoption of genocide convention in 1948 ,50 years have passed before an international court, the Yugoslavia Tribunal, would be created to prosecute genocide, though with temporal and territorial limitations. Shortly after the UN Security Council created the Rwanda Tribunal to deal specifically with the genocide in Rwanda .With the creation of the international criminal court, there is now for the first time an international institution that can push genocide anywhere in the world.

    Meaning and Definition of Genocide

    The term genocide was coined by Raphael Lemkin (1900–1959), a Polish-Jewish legal scholar, in 1943, firstly from the Latin gens, gentis, meaning tribe, clan, or race, or the Greek root genos (family, tribe or race - gene); secondly from Latin -cide (occido-to massacre, kill). According to Lemkin, Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the 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 economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. In Resolution 96(1) OF 11TH December 1946, The UN General Assembly for the first time defines the crime of genocide and determines it to be a crime under international law. The U.N. Economic and social council were authorized to draft a proposal for the formulation of genocide convention. A group of experts including Lamkin drew up an initial draft convention. The draft was again modified and presented to the general assembly which unanimously adopted the draft in resolution 260 A (III) on 9th December 1948, the convention on the prevention and punishment of crime of genocide had a detail and quite technical definition as a crime against the law of notions.

    The detail and technical definition is as follows:
    Article 1.The contracting parties confirm that genocide, whether committed in time of peace or time of war, is a crime under international law which they undertake to prevent and punish.

    Article II. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group as such:
    (a) Killing members of the group;
    (b) Causing serious bodily or mental harm to the 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) Forcible transferring children of the group to another group.
    Article III. The following acts shall be punishable:-
    (a) Genocide;
    (b) Conspiracy to commit genocide;
    (c) Direct and Public incitement to commit genocide;
    (d) Attempt to commit genocide;
    (e) Complicity in genocide.

    Article II of the convention on the prevention and punishment of the Crime of Genocide, adopted by ICTY Statute into Article 4(2) and Article 2(2) of the ICTR statute. At the negotiations on the statute of the international criminal court, efforts were made to include political and social groups in the definition; however the majority of delegates preferred not to temper with the definition recognized under customary international law. Thus, Article 6 of the ICC Statute repeats Article II of the Genocide Convention.

    Material elements
    I. Protected groups:
    Only group constituted through national, ethnic, racial or religious are protected under the definition of the crime. This list is exclusive; the drafters of the Genocide Convention purposely limited Article II to protection of the four named groups. Common to the protected group is the fact that group membership is generally determined by birth and is of a permanent and stable nature.

    1. Criteria for group classification:
    The common criteria is common customs, language or religion or visible characteristics such as skin colour or stature. But its also possible to see group characteristics subjectively and rely on social ascription processes- that is, a groups self-perception or its perception by others as national, ethnic, racial or religious groups.

    2. National Groups:
    It includes a person who has nationality of that particular state and other elements can be included like common language, history, customs and culture.

    3. Ethnic Groups:
    An ethnic group is a group of humans whose members identify with each other, through a common heritage that is real or presumed. Ethnic identity is further marked by the recognition from others of a group's distinctiveness and the recognition of common cultural, linguistic, religious, behavioural traits as indicators of contrast to other groups. Ethnicity is an important means through which people can identify themselves . Some believed that ethnic groups were a subcategory of national groups; another believed that the concept of ethnicity was identical with that of race. An ethnic group is distinguished in particular by a specific cultural tradition and a common history. The members of the group speak the same language, have the same customs and traditions and share a common way of life.

    4. Racial Groups:
    Racial groups includes members exhibit the same inherited, visible physical traits, such as skin colour or physical stature.

    5. Religious Groups:
    Religion can also be one of very important factor for committing of genocide. Religious groups such as Hinduism, Islam, Christianity, Sikhism etc..have their own religious procedure, belief and traditions. All groups have different spiritual paradigm, faith and spiritual ideas.

    II. Individual acts:
    Genocide includes all the acts which are defined under Article 6 of the ICC Statute. If any person of any group has been attacked or targeted by another group member, whose physical integrity or social existence are violated or endangered. Even where the definitions requires conduct against the group then conduct said to be done if any single member of group has been attacked. Conduct under this means causing seriously bodily harm to body or health, mutilation and use of force, beating with rifle butts etc.. it also includes sexual violence.

    Article 6(b) of the ICC Statute require the perpetrator to have caused serious bodily injury or harm to atleast one member of the group. It is not necessary that the injury should be permanent or irreparable. Article 6( c) of the statute covers the infliction of conditions of life on a group that are calculated to bring about its physical destruction , in whole or in part. It includes all such conditions which take towards death like lack of food, shelter, medicine, clothes etc... Perpetrator must employ these conducts to exterminate the group. Article 6(d) of the ICC Statute encompasses the imposition of measures intended to prevent births within the group. For example,forced -birth control, Sterilization, prohibition on marriages and segregation of the sexes. Article 6 (e) of the ICC Statute contain provision related to children i.e.genocide also includes Forcibly transferring children of the group to another group. It should be done with intent to exterminate that group or destroying the existence of that group. Children adopt anything very fast and when a child transferred to some other group then he adopts that group culture and tradition and for him his own culture, language remains aliens.

    Mental element
    The mental elements of the genocide comprise both the requisite intention to commit the underlying prohibited act (such as killing) and the intent special to genocide. It is the special intent to destroy in whole or in part [a protected group] as such that distinguishes genocide from other crimes. For commission of genocide, mental element should also be there. All the acts which falls under the definition of genocide according to Article 6 of the ICC Statute should be carried with intention and knowledge.

    Article 30 of the ICC Statute defines Mental Element as follows:
    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.

    The reference to intent in the Convention indicates that not only must the offender have meant to engage in the conduct or to cause its consequences; he must also have had a specific intentor dolus specialis. It indeed appears from the debates during the drafting of the text that the drafters chose the intent to destroy the group as the distinctive element in genocide and wanted to clearly distinguish the international crime of genocide from the municipal crime of homicide. As a result, if such a specific intent is not established, the crime remains punishable but not as genocide.

    The Genocide Convention requires a specific intent, a requirement which is all the more problematic because if such intent cannot be established, the genociders will have to be acquitted of the charge of genocide. Genociders may thus easily deny the commission of genocide by simply arguing that the required intent to destroy a group in whole or in part is lacking. Intent is a mental factor which is difficult, even impossible, to determine, adding that, without confession of the accused, intent can only be inferred from a certain number of presumptions of fact. Intent to destroy in the Convention on the Prevention and Punishment of the Crime of Genocide, meant the intended physical-biological destruction of the protected group and that this was still the majority opinion. But the European Court of Human Right also noted that a minority took a broader view and did not consider biological-physical destruction was necessary as the intent to destroy a national, racial, religious or ethnical group was enough to qualify as genocide. The perpetrator must act with intent to destroy the group in whole or in part. What comprises the group as a whole, and thus the actual target of the crime, is determined by the perpetrators perception.

    Cases related to genocide

    1. Rawanda genocide:

    The Rwandan Genocide was the 1994 mass killing of hundreds of thousands of Rwanda's Tutsis and Hutu political moderates by Hutus under the Hutu Power ideology. Over the course of approximately 100 days, from the assassination of Juvénal Habyarimana on 6th April through mid-July, at least 500,000 people were killed. Most estimates indicate a death toll between 800,000 and 1,000,000, which could be as high as 20% of the total population.In 1990 the Rwandan Patriotic Front (RPF), a rebel group, composed mostly of Tutsi refugees, invaded northern Rwanda from Uganda. The Rwandan Civil War, fought between the Hutu regime, with support from Francophone nations of Africa and France itself, and the RPF, with support from Uganda, vastly increased the ethnic tensions in the country and led to the rise of Hutu Power, an ideology that stressed that the Tutsi intended to enslave Hutus and thus must be resisted at all costs. Despite ongoing ethnic tension, including the displacement of large numbers of Hutu in the north by the rebels and periodic localized ethnic cleansing of Tutsi to the south, pressure on the government of Juvénal Habyarimana led to a cease-fire in 1993 and the preliminary implementation of the Arusha Accords.The assassination of Habyarimana in April 1994 was the proximate cause of the mass killings of Tutsis and pro-peace Hutus. It was carried out primarily by two Hutu militias associated with political parties: the Interahamwe and the Impuzamugambi. The genocide was directed by a Hutu Power group known as the Akazu.

    The killing also marked the end of the peace agreement meant to end the war and the Tutsi RPF restarted their offensive, eventually defeating the army and seizing control of the country. Then The International Criminal Tribunal for Rwanda (ICTR), or the Tribunal pénal international pour le Rwanda (TPIR), which is an international court established in November 1994 by the United Nations Security Council in order to judge people responsible for the Rwandan genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. In 1995 it became located in Arusha, Tanzania from 2006; Arusha also became the location of the African Court on Human and Peoples' Rights). In 1998 the operation of the Tribunal was expanded. Through several resolutions, the Security Council called on the Tribunal to complete its investigations by end of 2004, complete all trial activities by end of 2008, and complete all work in 2010.The tribunal has jurisdiction over genocide, crimes against humanity and war crimes, which are defined as violations of Common Article Three and Additional Protocol II of the Geneva Conventions (dealing with war crimes committed during internal conflicts). So far, the Tribunal has finished 21 trials and convicted 29 accused persons. Another 11 trials are in progress. 14 individuals are awaiting trial in detention; but the prosecutor intends to transfer 5 to national jurisdiction for trial. 13 others are still at large, some suspected to be dead. The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty.

    2. Bosnia genocide

    In the republic of Bosnia-Herzegovina, conflict between the three main ethnic groups - the Serbs, Croats, and Muslims - resulted in genocide committed by the Serbs against Bosnian Muslims. In the late 1980s a Serbian named Slobodan Milosevic came to power. In 1992 acts of ethnic cleansing started in Bosnia, a mostly Muslim country where the Serb minority made up only 32% of the population. Milosevic responded to Bosnias declaration of independence by attacking Sarajevo, where Serb snipers shot down civilians. The Bosnian Muslims were outgunned and the Serbs continued to gain ground. They systematically rounded up local Muslims and committed acts of mass murder, deported men and boys to concentration camps, and forced repopulation of entire towns. Serbs also terrorized Muslim families by using rape as a weapon against women and girls. Over 200,000 Muslim civilians were systematically murdered and 2,000,000 became refugees at the hands of the Serbs. In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.

    On 26 February 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.

    Stages of genocide and preventive measures
    Genocide is a process that develops in eight stages that are predictable but not inexorable. At each stage, preventive measures can stop it. The process is not linear. Logically, later stages must be preceded by earlier stages. But all stages continue to operate throughout the process.

    1. Classification: All cultures have categories to distinguish people into us and them by ethnicity, race, religion, or nationality: German and Jew, Hutu and Tutsi. Bipolar societies that lack mixed categories, such as Rwanda and Burundi, are the most likely to have genocide. The main preventive measure at this early stage is to develop universalistic institutions that transcend ethnic or racial divisions, that actively promote tolerance and understanding, and that promote classifications that transcend the divisions. The Catholic church could have played this role in Rwanda, had it not been riven by the same ethnic cleavages as Rwandan society. Promotion of a common language in countries like Tanzania has also promoted transcendent national identity. This search for common ground is vital to early prevention of genocide.

    2. Symbolization: We give names or other symbols to the classifications. We name people Jews or Gypsies, or distinguish them by colors or dress; and apply the symbols to members of groups. Classification and symbolization are universally human and do not necessarily result in genocide unless they lead to the next stage, dehumanization. When combined with hatred, symbols may be forced upon unwilling members of pariah groups: the yellow star for Jews under Nazi rule, the blue scarf for people from the Eastern Zone in Khmer Rouge Cambodia. To combat symbolization, hate symbols can be legally forbidden (swastikas) alike the hate speeches. Group marking like gang clothing or tribal scarring can be outlawed, as well. The problem is that legal limitations will fail if unsupported by popular cultural enforcement. Though Hutu and Tutsi were forbidden words in Burundi until the 1980s, code-words replaced them. If widely supported, however, denial of symbolization can be powerful, as it was in Bulgaria, where the government refused to supply enough yellow badges and at least eighty percent of Jews did not wear them, depriving the yellow star of its significance as a Nazi symbol for Jews.

    3. Dehumanization: One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human revulsion against murder. At this stage, hate propaganda in print and on hate radios is used to vilify the victim group. In combating this dehumanization, incitement to genocide should not be confused with protected speech. Genocidal societies lack constitutional protection for countervailing speech, and should be treated differently than democracies. Local and international leaders should condemn the use of hate speech and make it culturally unacceptable. Leaders who incite genocide should be banned from international travel and have their foreign finances frozen. Hate radio stations should be shut down, and hate propaganda banned. Hate crimes and atrocities should be promptly punished.

    4. Organization: Genocide is always organized, usually by the state, often using militias to provide deniability of state responsibility (the Janjaweed in Darfur.) Sometimes organization is informal (Hindu mobs led by local RSS militants) or decentralized (terrorist groups.) Special army units or militias are often trained and armed. Plans are made for genocidal killings. To combat this stage, membership in these militias should be outlawed. Their leaders should be denied visas for foreign travel. The U.N. should impose arms embargoes on governments and citizens of countries involved in genocidal massacres, and create commissions to investigate violations, as was done in post-genocide Rwanda.

    5. Polarization: Extremists drive the groups apart. Hate groups broadcast polarizing propaganda. Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center. Moderates from the perpetrators own group are most able to stop genocide, so are the first to be arrested and killed. Prevention may mean security protection for moderate leaders or assistance to human rights groups. Assets of extremists may be seized, and visas for international travel denied to them. Coups détat by extremists should be opposed by international sanctions.

    6. Preparation: Victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. Members of victim groups are forced to wear identifying symbols. Their property is expropriated. They are often segregated into ghettoes, deported into concentration camps, or confined to a famine-struck region and starved. At this stage, a Genocide Emergency must be declared. If the political will of the great powers, regional alliances, or the U.N. Security Council can be mobilized, armed international intervention should be prepared, or heavy assistance provided to the victim group to prepare for its self-defense. Otherwise, at least humanitarian assistance should be organized by the U.N. and private relief groups for the inevitable tide of refugees to come.

    7. Extermination begins, and quickly becomes the mass killing legally called genocide. It is extermination to the killers because they do not believe their victims to be fully human. When it is sponsored by the state, the armed forces often work with militias to do the killing. Sometimes the genocide results in revenge killings by groups against each other, creating the downward whirlpool-like cycle of bilateral genocide (as in Burundi). At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection. (An unsafe safe area is worse than none at all.) The U.N. Standing High Readiness Brigade, EU Rapid Response Force, or regional forces -- should be authorized to act by the U.N. Security Council if the genocide is small. For larger interventions, a multilateral force authorized by the U.N. should intervene. If the U.N. is paralyzed, regional alliances must act. It is time to recognize that the international responsibility to protect transcends the narrow interests of individual nation states. If strong nations will not provide troops to intervene directly, they should provide the airlift, equipment, and financial means necessary for regional states to intervene.

    8. Denial is the eighth stage that always follows a genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. There they remain with impunity, like Pol Pot or Idi Amin, unless they are captured and a tribunal is established to try them. The response to denial is punishment by an international tribunal or national courts. There the evidence can be heard, and the perpetrators punished. Tribunals like the Yugoslav or Rwanda Tribunals, or an international tribunal to try the Khmer Rouge in Cambodia, or an International Criminal Court may not deter the worst genocidal killers. But with the political will to arrest and prosecute them, some may be brought to justice.

    Genocide is on of the heinous crime against human being. Genocide is a crime on a different scale to all other crimes against humanity and implies an intention to completely exterminate the chosen group. Genocide is therefore both the gravest and the greatest of the crimes against humanity. In the same way as in a case of homicide the natural right of the individual to exist is implied, so in the case of genocide as a crime, the principle that any national, racial or religious group has a natural right to exist is clearly evident. Attempts to eliminate such groups violate this right to exist and to develop within the international community.A genocide is a conspiracy aimed at the total destruction of a group and thus requires a concerted plan of action. The instigators and initiators of a genocide are cool-minded theorists first and barbarians only second. The specificity of genocide does not arise from the extent of the killings, nor their savagery or resulting infamy, but solely from the intention: the destruction of a group. So, strict action and laws should be made against genocide. The punishment should be deterrent.

    Werle,Gerhard, Principals of International Criminal Law, T.M.C.Asser Press, Netherland, 2005.
    Jones,Adam, Genocide: A Comprehensive Introduction, Routledge publication, New York, 2007.
    Fournet,Caroline, Law of Genocide: Their Impact on Collective Memories, Ashgate publishing limited, England, 2007.

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