Genocide - Wikipedia

The intentional destruction of all or a significant part of a racial, ethnic, religious or national group

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Genocide is the intentional action to destroy a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. A term coined by Raphael Lemkin in his 1944 book Axis Rule in Occupied Europe,[1] the hybrid word geno-cide is a combination of the Greek word γένος (genos, "race, people") and the Latin suffix -caedo ("act of killing").[3]

The United Nations Genocide Convention, which was established in 1948, defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such" including the killing of its members, causing serious bodily or mental harm to members of the group, deliberately imposing living conditions that seek to "bring about its physical destruction in whole or in part", preventing births, or forcibly transferring children out of the group to another group.[4][5][6]

Prominent examples of genocides in history include the Holocaust, the Armenian Genocide, and the Rwandan genocide. The Political Instability Task Force estimated that, between 1956 and 2016, a total of 43 genocides took place, causing the death of about 50 million people.[7] The UNHCR estimated that a further 50 million had been displaced by such episodes of violence up to 2008.[7]

Origin of the term

Before genocide was coined, there were various ways of describing such events. The Armenian Genocide was described by contemporary English-speaking observers as a "systematic" or "organized" "campaign of extermination" or "race extermination".[8] Some languages already had words for such killings, including German (Völkermord, lit. 'murder of a people') and Polish (ludobójstwo, lit. 'killing of a people or nation').[9][10] In 1941, Winston Churchill, when describing the German invasion of the Soviet Union, spoke of "a crime without a name".[11]

In 1944, Raphael Lemkin created the term genocide in his book Axis Rule in Occupied Europe. The book describes the implementation of Nazi policies in occupied Europe, and cites earlier mass killings.[12] The term described the systematic destruction of a nation or people,[13] and the word was quickly adopted by many in the international community. The word genocide is a combination of the Ancient Greek word génos (γένος, meaning "race" or "people") with the Latin caedere ("to kill"). The word genocide was used in indictments at the Nuremberg trials, held from 1945, but solely as a descriptive term, not yet as a formal legal term.[15] The so-called Polish Genocide Trials of Arthur Greiser and Amon Leopold Goth in 1946 were the first trials in which judgments included the term genocide.[16]

According to Lemkin, genocide was "a coordinated strategy to destroy a group of people, a process that could be accomplished through total annihilation as well as strategies that eliminate key elements of the group's basic existence, including language, culture, and economic infrastructure". Lemkin defined genocide as follows:

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.

The preamble to the 1948 Genocide Convention (CPPCG) notes that instances of genocide have taken place throughout history.[17] But it was not until Lemkin coined the term and the prosecution of perpetrators of the Holocaust at the Nuremberg trials that the United Nations defined the crime of genocide under international law in the Genocide Convention.[18]

Lemkin's lifelong interest in the mass murder of populations in the 20th century was initially in response to the killing of Armenians in 1915[19][1][20] and later to the mass murders in Nazi-controlled Europe. He referred to the Albigensian Crusade as "one of the most conclusive cases of genocide in religious history".[21] He dedicated his life to mobilizing the international community, to work together to prevent the occurrence of such events.[22] In a 1949 interview, Lemkin said "I became interested in genocide because it happened so many times. It happened to the Armenians, then after the Armenians, Hitler took action."[23]

As a crime

Pre-criminalization view

Before genocide was made a crime against national law, it was considered a sovereign right.[24] When Lemkin asked about a way to punish the perpetrators of the Armenian Genocide, a law professor told him: "Consider the case of a farmer who owns a flock of chickens. He kills them and this is his business. If you interfere, you are trespassing."[25] As late as 1959, many world leaders still "believed states had a right to commit genocide against people within their borders", according to political scientist Douglas Irvin-Erickson.[24]

International law

After the Holocaust, which had been perpetrated by Nazi Germany prior to and during World War II, Lemkin successfully campaigned for the universal acceptance of international laws defining and forbidding genocides. In 1946, the first session of the United Nations General Assembly adopted a resolution that "affirmed" that genocide was a crime under international law and enumerated examples of such events (but did not provide a full legal definition of the crime). In 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) which defined the crime of genocide for the first time.[26]

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 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.

— UN Resolution 96(1), 11 December 1946

The CPPCG was adopted by the UN General Assembly on 9 December 1948[4] and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally-recognized definition of genocide which has been incorporated into the national criminal legislation of many countries and was also adopted by the Rome Statute of the International Criminal Court, which established the International Criminal Court (ICC). Article II of the Convention defines genocide as:

... 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.

The first draft of the convention included political killings, but these provisions were removed in a political and diplomatic compromise following objections from some countries, including the USSR, a permanent United Nations Security Council member.[27][28] The USSR argued that the convention's definition should follow the etymology of the term,[28] and may have feared greater international scrutiny of its own mass killings.[27][29] Other nations feared that including political groups in the definition would invite international intervention in domestic politics.[28] However leading genocide scholar William Schabas states: "Rigorous examination of the travaux fails to confirm a popular impression in the literature that the opposition to inclusion of political genocide was some Soviet machination. The Soviet views were also shared by a number of other States for whom it is difficult to establish any geographic or social common denominator: Lebanon, Sweden, Brazil, Peru, Venezuela, the Philippines, the Dominican Republic, Iran, Egypt, Belgium, and Uruguay. The exclusion of political groups was in fact originally promoted by a non-governmental organization, the World Jewish Congress, and it corresponded to Raphael Lemkin's vision of the nature of the crime of genocide."[30]

Incitement to genocide is recognized as a separate crime under international law and an inchoate crime which does not require genocide to have taken place to be prosecutable.[31]

Genocidal intent

Under international law, genocide has two mental (or mens rea) elements – the general mental element and the element of specific intent (dolus specialis). The general element refers to whether the prohibited acts were committed with intent, knowledge, recklessness, or negligence. For most serious international crimes, including genocide, the requirement is that the perpetrator act with intent. The Rome Statute defines intent as meaning to engage in the conduct and, in relation to consequences, as meaning to cause that consequence or being "aware that it will occur in the ordinary course of events".[32]

The specific intent element defines the purpose of committing the acts: "to destroy in whole or in part, a national, ethnical, racial or religious group, as such". The specific intent is a core factor distinguishing genocide from other international crimes, such as war crimes or crimes against humanity.

"Intent to destroy"

In 2007, the European Court of Human Rights (ECHR) noted in its judgement on Jorgic v. Germany case that, in 1992, the majority of legal scholars took the narrow view that "intent to destroy" in the CPPCG meant the intended physical-biological destruction of the protected group, and that this was still the majority opinion. But the ECHR also noted that a minority took a broader view, and did not consider biological-physical destruction to be necessary, as the intent to destroy a national, racial, religious or ethnic group was enough to qualify as genocide.[33]

In the same judgement, the ECHR reviewed the judgements of several international and municipal courts. It noted that the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice had agreed with the narrow interpretation (that biological-physical destruction was necessary for an act to qualify as genocide). The ECHR also noted that at the time of its judgement, apart from courts in Germany (which had taken a broad view), that there had been few cases of genocide under other Convention states' municipal laws, and that "There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide."[34]

In the case of "Onesphore Rwabukombe", the German Supreme Court adhered to its previous judgement, and did not follow the narrow interpretation of the ICTY and the ICJ.[35]

"In whole or in part"

The phrase "in whole or in part" has been subject to much discussion by scholars of international humanitarian law.[36] The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic – Trial Chamber I – Judgment – IT-98-33 (2001) ICTY8 (2 August 2001)[37] that Genocide had been committed. In Prosecutor v. Radislav Krstic – Appeals Chamber – Judgment – IT-98-33 (2004) ICTY 7 (19 April 2004)[38] paragraphs 8, 9, 10, and 11 addressed the issue of in part and found that "the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole." The Appeals Chamber goes into details of other cases and the opinions of respected commentators on the Genocide Convention to explain how they came to this conclusion.

The judges continue in paragraph 12, "The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Tribunal's Statute]."[39][40]

In paragraph 13 the judges raise the issue of the perpetrators' access to the victims: "The historical examples of genocide also suggest that the area of the perpetrators' activity and control, as well as the possible extent of their reach, should be considered. [...] The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can—in combination with other factors—inform the analysis."[38]

"A national, ethnic, racial or religious group"

The drafters of the CPPCG chose not to include political or social groups among the protected groups. Instead, they opted to focus on "stable" identities, attributes that are historically understood as being born into and unable or unlikely to change overtime. This definition conflicts with modern conceptions of race as a social construct rather than innate fact and the practice of changing religion, etc.[41]

International criminal courts have typically applied a mix of objective and subjective markers for determining whether or not a targeted population is a distinct group. Differences in language, physical appearance, religion, and cultural practices are objective criteria that may show that the groups are distinct. However, in circumstances such as the Rwandan genocide, Hutus and Tutsis were often physically indistinguishable.[42]

In such a situation where a definitive answer based on objective markers is not clear, courts have turned to the subjective standard that "if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group".[43] Stigmatization of the group by the perpetrators through legal measures, such as withholding citizenship, requiring the group to be identified, or isolating them from the whole could show that the perpetrators viewed the victims as a protected group.

Genocidal acts

The Genocide Convention establishes five prohibited acts that, when committed with the requisite intent, amount to genocide. Although massacre-style killings are the most commonly identified and punished as genocide, the range of violence that is contemplated by the law is significantly broader.[44]

Killing members of the group

While mass killing is not necessary to commit genocide, it has been present in every recognized genocide. A near-uniform pattern has emerged throughout history in which men and adolescent boys are singled out for murder in the early stages,[citation needed ] such as in the genocide of the Yazidis by Daesh,[45] the Ottoman Turks' attack on the Armenians,[46] and the Burmese security forces' attacks on the Rohingya.[47] Men and boys are typically subject to "fast" killings, such as by gunshot.[48] Women and girls are more likely to die slower deaths by slashing, burning, or as a result of sexual violence.[49] The jurisprudence of the International Criminal Tribunal for Rwanda (ICTR), among others, shows that both the initial executions and those that quickly follow other acts of extreme violence, such as rape and torture, are recognized as falling under the first prohibited act.[50]

A less settled discussion is whether deaths that are further removed from the initial acts of violence can be addressed under this provision of the Genocide Convention. Legal scholars have posited, for example, that deaths resulting from other genocidal acts including causing serious bodily or mental harm or the successful deliberate infliction of conditions of life calculated to bring about physical destruction should be considered genocidal killings.[44]

Causing serious bodily or mental harm to members of the group Article II(b)

This second prohibited act can encompass a wide range of non-fatal genocidal acts.[51] The ICTR and International Criminal Tribunal for the Former Yugoslavia (ICTY) have held that rape and sexual violence may constitute the second prohibited act of genocide by causing both physical and mental harm. In its landmark Akayesu decision, the ICTR held that rapes and sexual violence resulted in "physical and psychological destruction".[52] Sexual violence is a hallmark of genocidal violence, with most genocidal campaigns explicitly or implicitly sanctioning it.[44] It is estimated that 250,000 to 500,000 women were raped in the three months of the Rwandan genocide, many of whom were subjected to multiple rapes or gang rape.[53] In Darfur, a systemic campaign of rape and often sexual mutilation was carried out[54] and in Burma public mass rapes and gang rapes were inflicted on the Rohingya by Burmese security forces.[55] Sexual slavery was documented in the Armenian Genocide by the Ottoman Turks and Daesh's genocide of the Yazidi.[56] These acts are ordinarily, but not exclusively committed against women.[citation needed ]

Torture and other cruel, inhuman, or degrading treatment or punishment, when committed with the requisite intent, are also genocide by causing serious bodily or mental harm to members of the group. The ICTY found that both experiencing a failed execution and watching the murder of one's family members may constitute torture.[57] The Syrian Commission of Inquiry (COI) also found that enslavement, removal of one's children into indoctrination or sexual slavery, and acts of physical and sexual violence rise to the level of torture, as well. While it was subject to some debate, the ICTY and, later, the Syrian COI held that under some circumstances deportation and forcible transfer may also cause serious bodily or mental harm.[58]

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction

The third prohibited act is distinguished from the genocidal act of killing because the deaths are not immediate (or may not even come to pass), but rather create circumstances that do not support prolonged life.[3] Due to the longer period of time before the actual destruction would be achieved, the ICTR held that courts must consider the duration of time the conditions are imposed as an element of the act.[59] The drafters incorporated the act to account for the horrors of the Nazi concentration camps and to ensure that similar conditions never be imposed again. However, it could also apply to the Armenian death marches, the siege of Mount Sinjar by Daesh, the deprivation of water and forcible deportation against ethnic groups in Darfur, and the destruction and razing of communities in Burma.

The ICTR provided guidance into what constitutes a violation of the third act. In Akayesu, it identified "subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement"[60] as rising to genocide. In Kayishema and Ruzindana, it extended the list to include: "lack of proper housing, clothing, hygiene and medical care or excessive work or physical exertion" among the conditions.[59] It further noted that, in addition to deprivation of necessary resources, rape could also fit within this prohibited act.

Imposing measures intended to prevent births within the group

The fourth prohibited act is aimed at preventing the protected group from regenerating through reproduction. It encompasses acts with the single intent of affecting reproduction and intimate relationships, such as involuntary sterilization, forced abortion, the prohibition of marriage, and long-term separation of men and women intended to prevent procreation.[3] Rape has been found to violate the fourth prohibited act on two bases: where the rape was committed with the intent to impregnate her and thereby forcing her to carry a child of another group (in societies where group identity is determined by patrilineal identity) and where the person raped subsequently refuses to procreate as a result of the trauma.[61] Accordingly, it can take into account both physical and mental measures imposed by the perpetrators.

Forcibly transferring children of the group to another group

The final prohibited act is the only prohibited act that does not lead to physical or biological destruction, but rather to destruction of the group as a cultural and social unit.[44] It occurs when children of the protected group are transferred to the perpetrator group. Boys are typically taken into the group by changing their names to those common of the perpetrator group, converting their religion, and using them for labor or as soldiers.[62] Girls who are transferred are not generally converted to the perpetrator group, but instead treated as chattel, as played out in both the Yazidi and Armenian genocides.[44] The measures used to forcibly transfer children may be imposed by direct force or psychological coercion, such as threats, duress, or detention.[3]

Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) coming into force

The convention came into force as international law on 12 January 1951 after the minimum 20 countries became parties. At that time however, only two of the five permanent members of the UN Security Council were parties to the treaty: France and the Republic of China. The Soviet Union ratified in 1954, the United Kingdom in 1970, the People's Republic of China in 1983 (having replaced the Taiwan-based Republic of China on the UNSC in 1971), and the United States in 1988. This long delay in support for the convention by the world's most powerful nations caused the convention to languish for over four decades. Only in the 1990s did the international law on the crime of genocide begin to be enforced.[citation needed ]

UN Security Council on genocide

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity".[63] The resolution committed the council to action to protect civilians in armed conflict.[64]

In 2008 the UN Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".[65]

Municipal law

Since the Convention came into effect in January 1951 about 80 United Nations member states have passed legislation that incorporates the provisions of CPPCG into their municipal law.[66]

Criticisms of the CPPCG and other definitions of genocide

William Schabas has suggested that a permanent body as recommended by the Whitaker Report to monitor the implementation of the Genocide Convention, and require states to issue reports on their compliance with the convention (such as were incorporated into the United Nations Optional Protocol to the Convention against Torture), would make the convention more effective.[67]

Writing in 1998, Kurt Jonassohn and Karin Björnson stated that the CPPCG was a legal instrument resulting from a diplomatic compromise. As such the wording of the treaty is not intended to be a definition suitable as a research tool, and although it is used for this purpose, as it has international legal credibility that others lack, other definitions have also been postulated. Jonassohn and Björnson go on to say that none of these alternative definitions have gained widespread support for various reasons.[68]

Jonassohn and Björnson postulate that the major reason why no single generally accepted genocide definition has emerged is because academics have adjusted their focus to emphasise different periods and have found it expedient to use slightly different definitions to help them interpret events. For example, Frank Chalk and Kurt Jonassohn studied the whole of human history, while Leo Kuper and R. J. Rummel in their more recent works concentrated on the 20th century, and Helen Fein, Barbara Harff and Ted Gurr have looked at post World War II events. Jonassohn and Björnson are critical of some of these studies, arguing that they are too expansive, and conclude that the academic discipline of genocide studies is too young to have a canon of work on which to build an academic paradigm.[68]

The exclusion of social and political groups as targets of genocide in the CPPCG legal definition has been criticized by some historians and sociologists, for example, M. Hassan Kakar in his book The Soviet Invasion and the Afghan Response, 1979–1982[69] argues that the international definition of genocide is too restricted,[70] and that it should include political groups or any group so defined by the perpetrator and quotes Chalk and Jonassohn: "Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator."[71] In turn some states such as Ethiopia,[72] France,[73] and Spain[74][75] include political groups as legitimate genocide victims in their anti-genocide laws.

Barbara Harff and Ted Gurr defined genocide as "the promotion and execution of policies by a state or its agents which result in the deaths of a substantial portion of a group ... [when] the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality".[76] Harff and Gurr also differentiate between genocides and politicides by the characteristics by which members of a group are identified by the state. In genocides, the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality. In politicides the victim groups are defined primarily in terms of their hierarchical position or political opposition to the regime and dominant groups.[77][78] Daniel D. Polsby and Don B. Kates, Jr. state that "we follow Harff's distinction between genocides and 'pogroms', which she describes as 'short-lived outbursts by mobs, which, although often condoned by authorities, rarely persist'. If the violence persists for long enough, however, Harff argues, the distinction between condonation and complicity collapses."[79][80]

According to R. J. Rummel, genocide has 3 different meanings. The ordinary meaning is murder by the government of people due to their national, ethnic, racial, or religious group membership. The legal meaning of genocide refers to the international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). This also includes non-killings that in the end eliminate the group, such as preventing births or forcibly transferring children out of the group to another group. A generalized meaning of genocide is similar to the ordinary meaning but also includes government killings of political opponents or otherwise intentional murder. It is to avoid confusion regarding what meaning is intended that Rummel created the term democide for the third meaning.[81]

Highlighting the potential for state and non-state actors to commit genocide in the 21st century, for example, in failed states or as non-state actors acquiring weapons of mass destruction, Adrian Gallagher defined genocide as 'When a source of collective power (usually a state) intentionally uses its power base to implement a process of destruction in order to destroy a group (as defined by the perpetrator), in whole or in substantial part, dependent upon relative group size'.[82] The definition upholds the centrality of intent, the multidimensional understanding of destroying, broadens the definition of group identity beyond that of the 1948 definition yet argues that a substantial part of a group has to be destroyed before it can be classified as genocide.

International prosecution of genocide

By ad hoc tribunals

All signatories to the CPPCG are required to prevent and punish acts of genocide, both in peace and wartime, though some barriers make this enforcement difficult. In particular, some of the signatories—namely, Bahrain, Bangladesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and former Yugoslavia—signed with the proviso that no claim of genocide could be brought against them at the International Court of Justice without their consent.[83] Despite official protests from other signatories (notably Cyprus and Norway) on the ethics and legal standing of these reservations, the immunity from prosecution they grant has been invoked from time to time, as when the United States refused to allow a charge of genocide brought against it by former Yugoslavia following the 1999 Kosovo War.[84]

It is commonly accepted that, at least since World War II, genocide has been illegal under customary international law as a peremptory norm, as well as under conventional international law. Acts of genocide are generally difficult to establish for prosecution because a chain of accountability must be established. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.[citation needed ]

Nuremberg Tribunal (1945–1946)

The Nazi leaders who were prosecuted shortly after World War II for taking part in the Holocaust, and other mass murders, were charged under existing international laws, such as crimes against humanity, as the crime of "genocide' was not formally defined until the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). Nevertheless, the recently coined term[85] appeared in the indictment of the Nazi leaders, Count 3, which stated that those charged had "conducted deliberate and systematic genocide—namely, the extermination of racial and national groups—against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, Gypsies and others."[86]

International Criminal Tribunal for the Former Yugoslavia (1993–2017)

The term Bosnian genocide is used to refer either to the killings committed by Serb forces in Srebrenica in 1995,[87] or to ethnic cleansing that took place elsewhere during the 1992–1995 Bosnian War.[88]

In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.[89] On 26 February 2007, the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the massacre in Srebrenica and Zepa 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.[90]

On 12 July 2007, European Court of Human Rights when dismissing the appeal by Nikola Jorgić against his conviction for genocide by a German court (Jorgic v. Germany) noted that the German courts wider interpretation of genocide has since been rejected by international courts considering similar cases.[91][92][93] The ECHR also noted that in the 21st century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide, and the ICTY has found in the Momcilo Krajisnik case that the actus reus of genocide was met in Prijedor "With regard to the charge of genocide, the Chamber found that in spite of evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide".[94]

About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date, after several plea bargains and some convictions that were successfully challenged on appeal two men, Vujadin Popović and Ljubiša Beara, have been found guilty of committing genocide, Zdravko Tolimir has been found guilty of committing genocide and conspiracy to commit genocide, and two others, Radislav Krstić and Drago Nikolić, have been found guilty of aiding and abetting genocide. Three others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgić lost an appeal against his conviction in the European Court of Human Rights. A further eight men, former members of the Bosnian Serb security forces were found guilty of genocide by the State Court of Bosnia and Herzegovina (See List of Bosnian genocide prosecutions).

Slobodan Milošević, as the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He died on 11 March 2006 during his trial where he was accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina, so no verdict was returned. In 1995, the ICTY issued a warrant for the arrest of Bosnian Serbs Radovan Karadžić and Ratko Mladić on several charges including genocide. On 21 July 2008, Karadžić was arrested in Belgrade, and later tried in The Hague accused of genocide among other crimes.[95] On 24 March 2016, Karadžić was found guilty of genocide in Srebrenica, war crimes and crimes against humanity, 10 of the 11 charges in total, and sentenced to 40 years' imprisonment.[96][97] Mladić was arrested on 26 May 2011 in Lazarevo, Serbia,[98] and was tried in The Hague. The verdict, delivered on 22 November 2017 found Mladić guilty of 10 of the 11 charges, including genocide and he was sentenced to life imprisonment.[99]

International Criminal Tribunal for Rwanda (1994 to present)

Victims of the 1994 Rwandan genocide

The International Criminal Tribunal for Rwanda (ICTR) is a court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide which occurred there during April 1994, commencing on 6 April. The ICTR was created on 8 November 1994 by the Security Council of the United Nations in order to judge those people responsible for the acts of genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.

So far, the ICTR has finished nineteen trials and convicted twenty-seven accused persons. On 14 December 2009, two more men were accused and convicted for their crimes. Another twenty-five persons are still on trial. Twenty-one are awaiting trial in detention, two more added on 14 December 2009. Ten are still at large.[100] The first trial, of Jean-Paul Akayesu, began in 1997. In October 1998, Akayesu was sentenced to life imprisonment. Jean Kambanda, interim Prime Minister, pleaded guilty.

The Khmer Rouge, led by Pol Pot, Ta Mok and other leaders, organized the mass killing of ideologically suspect groups. The total number of victims is estimated at approximately 1.7 million Cambodians between 1975–1979, including deaths from slave labour.[101]

On 6 June 2003 the Cambodian government and the United Nations reached an agreement to set up the Extraordinary Chambers in the Courts of Cambodia (ECCC) which would focus exclusively on crimes committed by the most senior Khmer Rouge officials during the period of Khmer Rouge rule of 1975–1979.[102] The judges were sworn in early July 2006.[103][104][105]

The genocide charges related to killings of Cambodia's Vietnamese and Cham minorities, which is estimated to make up tens of thousand killings and possibly more[106][107]

The investigating judges were presented with the names of five possible suspects by the prosecution on 18 July 2007.[103][108]

There has been disagreement between some of the international jurists and the Cambodian government over whether any other people should be tried by the Tribunal.[108]

By the International Criminal Court

Since 2002, the International Criminal Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states. Due to the United States concerns over the ICC, the United States prefers to continue to use specially convened international tribunals for such investigations and potential prosecutions.[114]

Darfur, Sudan

A mother with her sick baby at Abu Shouk IDP camp in

North Darfur

There has been much debate over categorizing the situation in Darfur as genocide.[115] The ongoing conflict in Darfur, Sudan, which started in 2003, was declared a "genocide" by United States Secretary of State Colin Powell on 9 September 2004 in testimony before the Senate Foreign Relations Committee.[116] Since that time however, no other permanent member of the UN Security Council has done so. In fact, in January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of Sudan has not pursued a policy of genocide."[117] Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide."[117]

In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the Commission report but without mentioning any specific crimes.[118] Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution.[119] As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.[120]

In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes.[121]

On 14 July 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir: three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors claimed that al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity.

On 4 March 2009, the ICC issued a warrant of arrest for Omar Al Bashir, President of Sudan as the ICC Pre-Trial Chamber I concluded that his position as head of state does not grant him immunity against prosecution before the ICC. The warrant was for war crimes and crimes against humanity. It did not include the crime of genocide because the majority of the Chamber did not find that the prosecutors had provided enough evidence to include such a charge.[122] Later the decision was changed by the Appeals Panel and after issuing the second decision, charges against Omar al-Bashir include three counts of genocide.[123]

Genocide in history

Naked

Soviet POWs

held by the Nazis in

Mauthausen concentration camp

. "[T]he murder of at least 3.3 million Soviet POWs is one of the least-known of modern genocides; there is still no full-length book on the subject in English." —Adam Jones

[124]

The concept of genocide can be applied to historical events of the past. The preamble to the CPPCG states that "at all periods of history genocide has inflicted great losses on humanity."

Revisionist attempts to challenge or affirm claims of genocide are illegal in some countries. For example, several European countries ban the denial of the Holocaust or the Armenian Genocide, while in Turkey referring to the mass killings of Armenians, Greeks, Assyrians and Maronites as genocides may be prosecuted under Article 301.[125]

William Rubinstein argues that the origin of 20th-century genocides can be traced back to the collapse of the elite structure and normal modes of government in parts of Europe following the First World War:

The 'Age of Totalitarianism' included nearly all of the infamous examples of genocide in modern history, headed by the Jewish Holocaust, but also comprising the mass murders and purges of the Communist world, other mass killings carried out by Nazi Germany and its allies, and also the Armenian genocide of 1915. All these slaughters, it is argued here, had a common origin, the collapse of the elite structure and normal modes of government of much of central, eastern and southern Europe as a result of the First World War, without which surely neither Communism nor Fascism would have existed except in the minds of unknown agitators and crackpots.[126]

Stages, risk factors, and prevention

For genocide to happen, there must be certain preconditions. Foremost among them is a national culture that does not place a high value on human life. A totalitarian society, with its assumed superior ideology, is also a precondition for genocidal acts.[127] In addition, members of the dominant society must perceive their potential victims as less than fully human: as "pagans," "savages," "uncouth barbarians," "unbelievers," "effete degenerates," "ritual outlaws," "racial inferiors," "class antagonists," "counterrevolutionaries," and so on.[128] In themselves, these conditions are not enough for the perpetrators to commit genocide. To do that—that is, to commit genocide—the perpetrators need a strong, centralized authority and bureaucratic organization as well as pathological individuals and criminals. Also required is a campaign of vilification and dehumanization of the victims by the perpetrators, who are usually new states or new regimes attempting to impose conformity to a new ideology and its model of society.[127]

In 1996 Gregory Stanton, the president of Genocide Watch, presented a briefing paper called "The 8 Stages of Genocide" at the United States Department of State.[130] In it he suggested that genocide develops in eight stages that are "predictable but not inexorable".[130][131]

The Stanton paper was presented to the State Department, shortly after the Rwandan Genocide and much of its analysis are based on why that genocide occurred. The preventative measures suggested, given the briefing paper's original target audience, were those that the United States could implement directly or indirectly by using its influence on other governments.

Stage Characteristics Preventive measures
1.
Classification 		People are divided into "us and them". "The main preventive measure at this early stage is to develop universalistic institutions that transcend... divisions."
2.
Symbolization 		"When combined with hatred, symbols may be forced upon unwilling members of pariah groups..." "To combat symbolization, hate symbols can be legally forbidden as can hate speech".
3.
Dehumanization 		"One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects, or diseases." "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."
4.
Organization 		"Genocide is always organized... Special army units or militias are often trained and armed..." "The U.N. should impose arms embargoes on governments and citizens of countries involved in genocidal massacres, and create commissions to investigate violations"
5.
Polarization 		"Hate groups broadcast polarizing propaganda..." "Prevention may mean security protection for moderate leaders or assistance to human rights groups...Coups d'état by extremists should be opposed by international sanctions."
6.
Preparation 		"Victims are identified and separated out because of their ethnic or religious identity..." "At this stage, a Genocide Emergency must be declared. ..."
7.
Extermination 		"It is 'extermination' to the killers because they do not believe their victims to be fully human". "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."
8.
Denial 		"The perpetrators... deny that they committed any crimes..." "The response to denial is punishment by an international tribunal or national courts"

In April 2012, it was reported that Stanton would soon be officially adding two new stages, Discrimination and Persecution, to his original theory, which would make for a 10-stage theory of genocide.[132]

In a paper for the Social Science Research Council Dirk Moses criticises the Stanton approach, concluding:

In view of this rather poor record of ending genocide, the question needs to be asked why the "genocide studies" paradigm cannot predict and prevent genocides with any accuracy and reliability. The paradigm of "genocide studies," as currently constituted in North America in particular, has both strengths and limitations. While the moral fervor and public activism is admirable and salutary, the paradigm appears blind to its own implication in imperial projects that are themselves as much part of the problem as they are part of the solution. The US government called Darfur a genocide to appease domestic lobbies, and because the statement cost it nothing. Darfur will end when it suits the great powers that have a stake in the region.

Other authors have focused on the structural conditions leading up to genocide and the psychological and social processes that create an evolution toward genocide. Ervin Staub showed that economic deterioration and political confusion and disorganization were starting points of increasing discrimination and violence in many instances of genocides and mass killing. They lead to scapegoating a group and ideologies that identified that group as an enemy. A history of devaluation of the group that becomes the victim, past violence against the group that becomes the perpetrator leading to psychological wounds, authoritarian cultures and political systems, and the passivity of internal and external witnesses (bystanders) all contribute to the probability that the violence develops into genocide.[134] Intense conflict between groups that is unresolved, becomes intractable and violent can also lead to genocide. The conditions that lead to genocide provide guidance to early prevention, such as humanizing a devalued group, creating ideologies that embrace all groups, and activating bystander responses. There is substantial research to indicate how this can be done, but the information is only slowly transformed into action.[135]

Kjell Anderson uses a dichotomistic classification of genocides: "hot genocides, motivated by hate and the victims' threatening nature, with low-intensity cold genocides, rooted in victims' supposed inferiority."[136]

See also

Research

References

  1. ^ a b William Schabas (2000). Genocide in international law: the crimes of crimes. Cambridge University Press. p. 25. ISBN 9780521787901. Lemkin's interest in the subject dates to his days as a student at Lvov University, when he intently followed attempts to prosecute the perpetration of the massacres of the Armenians.
  2. ^ a b c d Stanton, Gregory H., What is genocide?, Genocide Watch .
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  111. ^ "002/19-09-2007: Decision on immediate appeal against Trial Chamber's order to release the accused Ieng Thirith" (PDF) . Extraordinary Chambers in the Courts of Cambodia. 13 December 2011 . Retrieved 16 February 2017 .
  112. ^ "Statement by Carolyn Willson, Minister Counselor for International Legal Affairs, on the Report of the ICC, in the UN General Assembly" (PDF) .   (123 KB) 23 November 2005
  113. ^ Jafari, Jamal and Paul Williams (2005) "Word Games: The UN and Genocide in Darfur" Jurist
  114. ^ Powell Declares Killing innn Dafur 'Genocide', The NewsHour with Jim Lehrer, 9 September 2004
  115. ^ a b "Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General" (PDF) .   (1.14 MB) , 25 January 2005, at 4
  116. ^ "Security Council Resolution 1593 (2005)" (PDF) . Archived from the original (PDF) on 29 May 2005.   (24.8 KB)
  117. ^ Security Council Refers Situation in Dafur, Sudan, to Prosecutor of International Criminal Court, UN Press Release SC/8351, 31 March 2005
  118. ^ "Fourth Report of the Prosecutor of the International Criminal Court, to the Security Council pursuant to UNSC 1593 (2005)" (PDF) . Archived from the original (PDF) on 14 June 2007.   (597 KB) , Office of the Prosecutor of the International Criminal Court, 14 December 2006.
  119. ^ Statement by Mr. Luis Moreno Ocampo, Prosecutor of the International Criminal Court, to the United Nations Security Council pursuant to UNSCR 1593 (2005) Archived 13 August 2008 at the Wayback Machine, International Criminal Court, 5 June 2008
  120. ^ ICC issues a warrant of arrest for Omar Al Bashir, President of Sudan Archived 27 March 2009 at the Wayback Machine (ICC-CPI-20090304-PR394), ICC press release, 4 March 2009
  121. ^ https://www.icc-cpi.int/CourtRecords/CR2010_04826.PDF
  122. ^ Adam Jones (2017), Genocide: A Comprehensive Introduction (3 ed.), p. 377 – " ' " Next to the Jews in Europe," wrote Alexander Werth', "the biggest single German crime was undoubtedly the extermination by hunger, exposure and in other ways of [...] Russian war prisoners." Yet the murder of at least 3.3 million Soviet POWs is one of the least-known of modern genocides; there is still no full-length book on the subject in English. It also stands as one of the most intensive genocides of all time: "a holocaust that devoured millions," as Catherine Merridale acknowledges. The large majority of POWs, some 2.8 million, were killed in just eight months of 1941–42, a rate of slaughter matched (to my knowledge) only by the 1994 Rwanda genocide."
  123. ^ Pair guilty of 'insulting Turkey', BBC News, 11 October 2007.
  124. ^ Rubinstein, W.D. (2004). Genocide: a history. Pearson Education. p. 7. ISBN 0-582-50601-8
  125. ^ a b M. Hassan Kakar Chapter 4. The Story of Genocide in Afghanistan Footnote 9. Citing Horowitz, quoted in Chalk and Jonassohn, Genocide, 14.
  126. ^ M. Hassan Kakar Chapter 4. The Story of Genocide in Afghanistan Footnote 10. Citing For details, see Carlton, War and Ideology.
  127. ^ M. Hassan Kakar, Afghanistan: The Soviet Invasion and the Afghan Response, 1979–1982, University of California Press, 1995.
  128. ^ a b Gregory Stanton. The 8 Stages of Genocide, Genocide Watch, 1996
  129. ^ The FBI has found somewhat similar stages for hate groups.
  130. ^ "GenPrev in the News [19 April 2012]". wordpress.com. 19 April 2012 . Retrieved 22 October 2017 .
  131. ^ Moses, Dirk (22 December 2006). "Why the Discipline of “Genocide Studies” Has Trouble Explaining How Genocides End?" Archived 18 October 2017 at the Wayback Machine. Social Science Research Council.
  132. ^ Staub, Ervin (1989). The Roots of Evil: The Origins of Genocide and Other Group Violence. New York: Cambridge University Press.[page needed ]
  133. ^ Staub, Ervin (2011). Overcoming Evil: Genocide, Violent Conflict, and Terrorism. New York: Oxford University Press.[page needed ]
  134. ^ p. 9. Anderson, Kjell. (2015) Colonialism and Cold Genocide: The Case of West Papua. Genocide Studies and Prevention Vol. 9: Iss. 2: 9–25.

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