On February 3

On this day in ...
... 2006, the International Court of Justice issued a judgment concluding by a vote of 15 to 2 that it had no jurisdiction to consider an application that the Democratic Republic of Congo had lodged 4 years earlier, in which it alleged that Rwanda, one of its neighbors to the east (map credit), had committed

'massive, serious and flagrant violations of human rights and of international humanitarian law' resulting 'from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant violation of the sovereignty and territorial integrity of the Democratic Republic of the Congo, as guaranteed by the United Nations and OAU Charters'.

The ICJ's judgment in Armed Activities on the Territory of the Congo (New Application : 2002) (Democratic Republic of the Congo v. Rwanda), the court declined to exercise jurisdiction based on a laundry list of treaties. It held inapplicable, for instance: the 1984 Convention Against Torture, for the reason that Rwanda was not a state party; and the 1948 Convention Against Genocide, for the reason that Rwanda had attached a pertinent reservation to its ratification of the latter treaty. Nor did it agree with the DRC that Rwanda had waived its right to object to jurisdiction.


(Prior February 3 posts are here, here, and here.)

Genocide and crimes against humanity in the national systems of Latin America

(Many thanks to IntLawGirls for inviting me to present my latest article in in this guest post)

As opposed to the other so-called core crimes under international law, genocide is one of the few to be codified in the national judicial systems of most Latin American states long before the adoption of the Rome Statute system. Indeed, the codification process took place from the 1970s onwards and, in some instances, even before. As I discuss in my latest article, "An Overview of the Crime of Genocide in Latin American Jurisdictions", 10 International Criminal Law Review 441 (2010), this history generated disparities between the international and the national definitions.
In general terms, the dolus specialis -- the requisite "intent to destroy, in whole or in part," as stated in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) -- is inherent to all national provisions on genocide analyzed in my article.
The deviations from the international definition thus revolve around the actus reus, understood as encompassing two other aspects of the Genocide Convention definition:
►The modalities of commission, encompassing, in Article III, genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide; and
► The protected groups included in Article II, namely, "a national, ethnical, racial or religious group, as such."
Deviations from the Genocide Convention definition found in Latin American codes present a common feature: the enlargement of the scope of the protected groups, by including the political group and other, even more general groups.
Such a disparate outcome may be attributed, in my view, to the several decades of confrontation, in many cases amounting to non-international armed conflicts, that were experienced in various countries in Latin America. (In Colombia, the armed conflict, although reduced, is still ongoing.) Such conflicts generally involved a state policy of systematic attack against civilian populations, and in many instances against political groups. By the same token, the so-called "doctrine of national security" that served as a justification for the emergence of repressive regimes in the 1970s was politically motivated and targeted.
Jurisprudence in this area is incomplete.
Notwithstanding the fact that the most relevant Latin American deviations from the international definition refer to the protected groups, jurisprudence has not shed much light either on the underlying rationale or justification for such a deviation or on the scope of interpretation of the deviation. In this connection, my article pays particular attention to constitutional challenges that have been lodged against some of the elements incorporated in the Colombian and Bolivian provisions on genocide. Also receiving attention is a conviction for genocide rendered by the Bolivian Supreme Court (above).
In my view, understanding the status of other international offences is critical to understanding the status of genocide as it is codified in Latin America.
Crimes against humanity were generally unknown in national legislation. Arguably, this did not begin to change until the 2002. The entry into force that year of the Rome Statute of the International Criminal Court (below right) paved the way for serious consideration of the proscription of crimes against humanity in national systems. This situation may explain why some Latin American countries adopted definitions of genocide that deviated from the international standard.
Also significant is the fact that conviction for genocide has historically provoked a strong moral condemnation.
The time is ripe to reflect on the reasons behind the intention to label a particular situation as genocide, given that the codification of the other core crimes has gained momentum.
Some consideration should be devoted to the national implementation of the Rome Statute.
In this vein, it is worth noting that the current trend on implementation in Latin America offers mixed signals as to whether states will opt:
► To maintain the enlarged scope of genocide, on the one hand; or,
► To avoid, on the other hand, perilous juxtapositions that may arise -- mainly with respect to crimes against humanity -- by creating clearer parameters between crimes.
Blending of Latin American history, of the customary aspects of crimes against humanity and its momentum of codification, and of societal perspectives towards the crime of genocide lead to a complex and challenging interaction.

On September 2

On this day in ...
... 1998, was issued the 1st judgment of conviction for genocide against a defendant who stood trial before an international tribunal. Convicted in the Trial Chamber judgment in Prosecutor v. Akayesu was the former bourgmestre, or mayor, of a Rwanda community afflicted by massacres and other atrocities in 1994. As I've written here and here, the judgment was a landmark for many reasons, among them: its ruling that "sexual violence" is a crime within the jurisdiction of the International Criminal Tribunal for Rwanda (above left); and its teleological interpretation of the protected-groups element of the proscription codified in Article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide and included verbatim in Article 2 of the ICTR Statute. (photo credit)

(Prior September 2 posts are here, here, and here.)

Cambodia Update

We've blogged before on the controversy at the Extraordinary Chambers in the Courts of Cambodia between the two Co-Prosecutors over whether to charge additional suspects with international crimes committed during the Khmer Rouge era (see here and here). Following a recent ruling of the Pre-Trial Chamber, which failed to achieve a majority to block further investigations, the Acting International Co-Prosecutor, William Smith (right), has now filed with the Co-Investigating judges two new Introductory Submissions.
Introductory Submissions are confidential to protect the integrity of the investigation, the identity of the victims and witnesses, and the presumption of innocence of the suspects. The Internal Rules do, however, allow the Co-Prosecutors to provide the public with a short summary of their submissions. What we've learned is that the Co-Prosecutors have recommended the investigation and prosecution of five additional suspects for 40 distinct factual situations of murder, torture, unlawful detention, forced labour, and persecution. The Second Introductory Submission contains allegations that, if proved, would constitute crimes against humanity, grave breaches of the Geneva Conventions, and violations of the 1956 Cambodian Penal Code. The Third Submission contains genocide allegations, but no war crimes allegations. (See our prior post on finding genocide in Cambodia).
These new Submissions specifically reference the theory of joint criminal enterprise (JCE), no doubt in an effort to ensure that the Closing Order (indictment) includes this form of responsibility. As we've blogged before, the Duch Closing Order does not include JCE allegations; the investigation into Duch's criminal liability did not focus on potential JCE liability, because the Co-Prosecutors failed to specifically reference JCE liability in their Submission to the Co-Investigating Judges. An appeal by the Co-Prosecutors on this point failed.
The Acting International Co-Prosecutor has indicated that he has no plans to conduct any further preliminary investigations into additional suspects at the ECCC.
Cambodian Prime Minister Hun Sen (left) is not happy. He has consistently argued against any expansion of the ECCC's investigations beyond the five suspects already in custody on the ground that it would spark civil unrest. At a forum on the release of new census figures, Hun Sen is quoted as saying:

If you want a tribunal, but you don't want to consider peace and reconciliation and war breaks out again, killing 200,000 or 300,000 people, who will be responsible?

Hun Sen's repeated involvement in this issue has given rise to concerns among human rights groups that the executive branch is attempting to interfere with the work of the Extraordinary Chambers.

Genocide in Cambodia?

The Khmer Rouge seized power on April 17, 1975 (photo, left), marking “year zero” in what turned out to be a four-year campaign to create the “New Cambodia.” Upon the ouster of the American-backed Lon Nol (prior posts here and here), the Khmer Rouge launched a radical project of social reorganization drawing upon communist and Maoist thought to re-construct Cambodia on the backbone of an idealized vision of a rural proletariat. The draconian measures instituted by the regime in this quest included:
► the liquidation of the Lon Nol army and members of the former regime;
► the extermination of the elite and educated;
► a complete evacuation of the urban centers;
► the incineration of books, libraries, banks, places of worship, and university facilities;
► the criminalization of the usage of foreign languages;
► the abolition of money, private property, markets, wages, and salaries;
► the dissolution of families and the separation of children from their parents;
► the subjugation and execution of ethnic minorities;
► the prohibition of religious practice and education; and
► the systematic hunt for real and imagined political opponents.
By the time a Vietnamese invasion opened the killing fields for the world to see in 1979,

a greater proportion of the population [had] perished than in any other revolution during the twentieth century.

Karl D. Jackson, The Khmer Rouge in Context, in Cambodia, 1975-1978: Rendezvous with Death 3, 3 (Karl D. Jackson ed., 1989).
The roughly two million deaths during the Khmer Rouge era are largely considered by the general public -- within Cambodia and abroad -- to be genocide. (The photo at left depicts a map of mass graves). Indeed, Cambodia often bears the dubious distinction of being described as the first post-Holocaust genocide. The U.S. Congress described the Khmer Rouge era as follows:

The persecution of the Cambodian people under the Khmer Rouge rule, [during which time] the bulk of the Khmer people were subjected to life in an Asian Auschwitz, constituted one of the clearest examples of genocide in recent history.

United States Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204, §906. In 1994, Congress passed the Genocide Justice Act, which authorized the creation of a documentation center in Cambodia, later named the Documentation Center of Cambodia (DC-Cam) to develop the United States proposal for the establishment of an international criminal tribunal for the prosecution of those accused of genocide in Cambodia.
The establishment of the Extraordinary Chambers in the Courts of Cambodia (right) to prosecute surviving members of the Khmer Rouge paves the way for the resolution of a lingering question in international criminal law:
► To what extent was genocide committed in Cambodia under the Khmer Rouge?
A quick read of the 1948 Genocide Convention reveals that much of the violence committed by the Khmer Rouge in Cambodia may not constitute genocide, primarily because the perpetrator group and the victim group appeared to share the same nationality, ethnicity, race, and religion. Instead, victims appear to have been targeted on the basis of what an objective assessment would describe as their membership in an undesirable political, social, or economic group. After great debate and compromise, the drafters of the Genocide Convention purposefully denied protection to political, social, economic, and other unenumerated groups. (Today's post below notes tension between the legal meaning of "genocide" and public response to the crisis in Darfur.) As a result, genocide is defined in Article II of the Genocide Convention, which entered into force in 1951, as

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical [sic], 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.

Thus, if the ECCC were to be strictly faithful to this original intent, it might reject most charges of genocide that might be brought against the surviving Khmer Rouge leaders. (Charges involving attacks against religious or ethnic minorities in Cambodia would have a better chance of surviving).
Despite this apparently dispositive conclusion, arguments exist for finding genocide in Cambodia based upon modern jurisprudential developments emerging from international criminal tribunals and domestic genocide prosecutions.
► First, the original intent of the drafters of the Genocide Convention to exclude protection to unenumerated groups is muted with respect to genocide prosecutions before modern international and hybrid tribunals. This is a function of the origins of these institutions, established treaty interpretation doctrine, and interpretive trends emerging from the various multilateral human rights institutions vis-à-vis their constitutive instruments. Collectively, these factors elevate text and treaty object and purpose as interpretive sources over idiosyncratic intentions of human rights treaty drafters.
► Second, contemporary courts engaged in genocide prosecutions have rejected definitions of the protected groups employed at the time of the Convention’s drafting that, by today’s intellectual sensibilities, appear outmoded and even offensive. Instead, modern tribunals have focused on the subjective characterization of these groups within the impacted society at large and -- most importantly -- within the minds of the perpetrators in the dock and the societies that they terrorized. In this regard, international criminal jurists have eschewed identifying an objective or scientific definition of what are inherently contested and contingent concepts. This approach highlights the centrality of the crime’s specific intent element to determining the existence of the crime of genocide.
To be sure, normative arguments can be made about the legitimacy of these jurisprudential trends. Nonetheless, they exist as influential precedent on which the ECCC can draw if it is confronted with the genocide question in the Khmer Rouge context. (To date, no genocide indictments have been issued). In this regard, the ECCC can start from the proposition that the groups listed in the treaty have no independent content; rather, their meaning is inherently contextual, contingent, and historical and should be treated as such. This invites the ECCC to identify the subjective understandings of those terms as they existed within the relevant communities at the time the Khmer Rouge acted, whether or not such conceptions were shared elsewhere or have any objective content or modern resonance. Most importantly, the ECCC must endeavor to understand the intentions of the Khmer Rouge in implementing the radical policies that they did and the identities they ascribed to the individuals they targeted for extermination. As Tufts Law Professor Hurst Hannum has written:

The radical transformation of Cambodia envisaged by the Khmer Rouge required the racial, social, ideological, and political purification of the Cambodian nation, through the sociological and physical liquidation of a variety of groups considered to be irremediably tainted by their association with the old social order or otherwise unsuited to the intended new order.

International Law and Cambodian Genocide: The Sounds of Silence, 11 Hum. Rts. Q. 82, 85 (1989). This “purification” required the extermination or forced assimilation of all non-Khmer ethnic groups, including ethnic Vietnamese, Chinese, Cham, Thai, and indigenous hill communities. It also required the elimination of other individuals whose perceived social, economic, and political affiliations or histories rendered them inherently impure and subject to violent exclusion from the revolutionary program of nation-building. This included Khmer Rouge cadre denounced as spies or counter-revolutionary agents and individuals resident in the Eastern zones hiding “Vietnamese minds in Khmer bodies.”
In implementing this program, the Khmer Rouge were animated by an idealized vision of the “pure Khmer” as both the source and beneficiary of the revolution. This nationalistic vision, however, could not be based on true Khmer ethnicity alone.
► First, the Khmer Rouge considered many indicia of the Khmer tradition and identity to be retrograde, such as the deep attachment to Buddhism. These counter-revolutionary vestiges of a prior identity had to be excised from society.
► Second, many of the key members of the Standing Committee (such as Pol Pot, Nuon Chea, Sao Phim and Khieu Samphon) were of Chinese descent. To accommodate different “objective” ethnicities within the new Cambodian polity, the Khmer Rouge revived the term “Kampuchea,” even officially calling their party the Party of Democratic Kampuchea. The term dates from the 9th century and a romanticized period of the Angkor dynasty, which flourished in South East Asia for 600 years with its capital at the world famous Angkor Wat (below).

In the radical egalitarianism of the Khmer Rouge, all those who were proper Kampucheans were equal; all those who were not were expendable and, indeed, subject to elimination. In this way, the Khmer Rouge invented an ideal type -- with national, ethnic, political, and religious dimensions -- against which all citizens were to be measured. Individuals who did not adhere to these multidimensional criteria were exempt from inclusion, dehumanized, and subject to elimination. (The photo at right is of Cheung Ek, one of the many killing fields around Cambodia).
A finding of genocide writ large in Cambodia is thus feasible through the application of the analysis developed in international and domestic genocide prosecutions. By the subjective approach, it is the Khmer Rouge’s belief system that matters. In the Khmer Rouge’s purification process, individuals from certain political, economic, and social strata were perceived as “imperfect” or “invalid” Khmer, incapable of re-education or assimilation. According to this view, these subsets of society were permanently stained by their prior affiliations and had to be purged lest they hinder the radical societal reformation envisioned by the Khmer Rouge.
An objective assessment of many of these target groups would categorize them as political, social, or economic groups. Viewing these groups through the lens of the Khmer Rouge cosmology, however, these prior social, economic or political affiliations were considered biologically determinative and thus irremediable--the equivalent of a racial, national, or ethnic group. As noted by Michigan Law Professor Catharine A. MacKinnon,

One of the enduring legacies of the Nazis was the notion that culture is genetic.

Rape, Genocide, and Women’s Human Rights, 17 Harv. Women’s L. J. 5, 13 (1994). These individuals were also identified via their exclusion from the majority national group, which fit the ideal type as measured by the Khmer Rouge leadership.
Assuming sufficient evidence exists of this cosmology, the ECCC could reach a finding of genocide writ large within Cambodia.

Indicting Al Bashir

As promised, the International Criminal Court (ICC) has issued an arrest warrant for President Omar Al Bashir of Sudan (right) for crimes committed in the Darfur region of Sudan (map of Sudan, left) in response to a July 14, 2008 request from the ICC Prosecutor. (Prior posts addressing the indictment are available here). According to Article 58, the Pre-Trial Chamber will only issue an arrest warrant where the Prosecutor establishes that:

There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.

In his application for a warrant, the Prosecutor must provide:

1. The name of the person and any other relevant identifying information;


2. A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed;


3. A concise statement of the facts which are alleged to constitute those crimes;


4. A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and


5. The reason why the Prosecutor believes that the arrest of the person is necessary.

Based on the Prosecutor's application, the Pre-Trial Chamber determined that there were reasonable grounds to believe that Al Bashir has committed war crimes (directing attacks against civilians and pillage) and crimes against humanity (murder, extermination, forcible transfer, and rape) in connection with the counter-insurgency campaign in Darfur. The theory of liability is one of co-perpetration pursuant to Article 25(3)(a):

Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.

The Court declined to approve genocide charges, on the ground that the Prosecutor had failed to provide sufficient evidence of the President's specific intent to destroy a protected group. This omission provoked a dissent from judge Anita Ušacka (right). This may not be the end of the genocide story; pursuant to Article 58(6) of the ICC Statute:

The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or
additional crimes.

That the Court planned to issue the indictment was "leaked" to the New York Times several weeks ago and then formally announced last week in order to give NGOs and others working on the ground in Sudan time to prepare for any fallout. And fallout there was. Adding further proof to the brutality of this regime, the Government of Sudan has demanded that aid groups, which feed and shelter millions of Sudanese citizens, leave.

My colleague Michael Kevane (left), a Sudan expert and Chair of Santa Clara's Department of Economics, and I published the following an op-ed in the San Francisco Chronicle welcoming the arrest:

President Omar al-Bashir of Sudan has finally earned his day of infamy: On March 4, he became the first sitting head of state to be indicted for war crimes and crimes against humanity by the fledgling International Criminal Court . He joins Slobodan Milosevic of Yugoslavia, Charles Taylor of Liberia, and Jean Kambanda of Rwanda as heads of state subject to international justice for their international crimes. The fact that al-Bashir - sitting at the apex of a corrupt and brutally repressive state - is being prosecuted internationally is more
important than the outcome of any particular charge in the indictment. While we believe his arrest will be easier than many think, the indictment alone represents a moral victory and an important milestone in the movement for international justice.

Notwithstanding that the United Nations Security Council orchestrated the referral of the crimes in Darfur to the ICC, diplomats are still scratching their heads over how al-Bashir can be arrested. The practicalities of his arrest will be aided by political factors that have been building against him: Al-Bashir will likely be handed over by members of his own regime. He commands no personal militia, unlike Ugandan Joseph Kony, who has evaded arrest by the ICC by hiding out in the dense tropical no-man's-land at the Congo-Uganda-Sudan border with his loyal private army.
Al-Bashir has become an extraordinary liability to the top powerbrokers of northern Sudan. Their oil revenue has been decimated by the collapse in oil prices. Their livestock and agriculture export fortunes are also collapsing as Middle Eastern demand for Sudanese exports dries up. Suddenly, reconciling with southern Sudan, the source of the oil revenue and a potential rival to the Muslim north, seems like a good strategy. Southern Vice President Salva Kiir will surely demand respect for international law as a precondition to continued North-South harmony. Al-Bashir's regime also remains under threat from rebel groups in Darfur, who have so far managed to resist Khartoum's counterinsurgency campaign.

These sources of instability are directly attributable to al-Bashir, and his inner circle will likely throw him to the ICC to enable them to remain in power. Indeed, there is every possibility that the same regime leaders who turn over al-Bashir will also give up his two fellow at-large indictees, Ahmed Haroun (who ironically serves as minister of state for humanitarian affairs) and Ali Kushayb (a janjaweed militia leader). In all likelihood, al-Bashir's co-defendants will turn against him as other subordinates have in past international prosecutions in exchange for some prosecutorial leniency.

The prosecutor has so far presented a very strong case against al-Bashir, and the indictment accordingly charges him with responsibility for a horrific array of crimes: murder, rape, attacking civilians, torture, and pillage. But even if ICC prosecutor Luis Moreno-Ocampo does not ultimately persuade the judges of al-Bashir's guilt on all counts in the indictment, he will have accomplished several important goals. A head of state who presided over war crimes and crimes against humanity will have been arrested and removed from power. The trial will create a set of evidentiary, legal and political precedents. After years of war and repression, Darfurian victims will finally have their day of justice.

UN Convention on the Prevention on Punishment of Genocide

Today marks the 60th anniversary of the introduction of the UN Convention on the Prevention and Punishment of the Crime of Genocide. The Convention contains an absolute prohibition on genocide, which is also long recognised as a jus cogens norm in international law. Genocide is defined in Article 2:

In the present Convention, genocide means 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 need for a Convention on the crime of genocide was, of course, starkly illustrated by the Holocaust, in which Jews, persons with disabilities, Roma, homosexuals and others suffered enormous harm and loss. Unfortunately, in the past 60 years, the absolute prohibition of genocide has not been sufficient to prevent other genocides from occurring. Scholarship on genocide is constantly evolving, and one of the most interesting areas of current and innovative inter-disciplinary work relates to gender, sexuality and genocide. This has arisen in a number of ways. Adam Jones has been instrumental in the development of ‘gendercide’ as an area of scholarship, focusing mostly on the targeting of men of military age in genocidal campaigns. Other scholars, myself included, have focused on the use of sexual violence against women as part of the evolving law and scholarship of genocide.

The conflicts in the Former Yugoslavia and Rwanda in the 1990s were largely characterised by the extensive use of sexual violence and exploitation as a weapon of war and a genocidal method. Although sexual violence as part of armed conflict was not a new phenomenon, and indeed continues to occur, a number of matters suggested that any formal legal response taken by the international community to this violence would address the particular experiences of women and girls in these conflicts.

Firstly, the widespread use of sexual violence and exploitation in both cases had received sustained media attention and been the subject of extensive commentary by non-governmental organisations. Secondly, the international community’s record on addressing women’s particular sexualised experiences of women in conflict was especially weak. Thirdly, since the failures of the Nuremburg Tribunal and the International Military Tribunal for the Far East to address women’s experiences of sexual violence and exploitation a corpus of law on women’s human rights had been developed with a particular emphasis on ensuring that sexual violence and exploitation were addressed by law and were not consigned to the unregulated realm of the ‘private’.

As a result of this context, when the Security Council established the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda the inclusion of sexual violence within the tribunals’ statutes was to some extent to be expected. That notwithstanding, experiences at both international and domestic levels taught that the mere inclusion of sexual violence and exploitation within courts’ and tribunals’ formal jurisdiction was no guarantee of effective prosecution of these crimes, or of the provision of an adequate or real remedy to women and girls affected by such violence. Rather, sustained attention to such crimes by both the prosecutor and the tribunals themselves, together with the creation of a juridical climate within which women’s stories can be told and heard, remain have been somewhat absent.

As has been well documented here on IntLawGrrls, particularly in the posts of Beth Van Schaak (posts here) difficulties continue to arise in relation to the prosecution of sexual violence before the Yugoslav and Rwandan tribunals. However, on this day of commemoration we can, perhaps, choose to remember the momentous decision, handed down by Judge Pillay (now UN High Commissioner for Human Rights) in Prosecutor v Akayesu, where for the first time an international tribunal recognised that sexual violence can be constitute the actus reus of the crime of genocide in respect of measures designed to prevent births in the targeted group (para. 507)

For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.

Genocide 60 years after the Convention

Perhaps* worth checking out:

A CNN documentary analyzing global response -- or lack thereof -- to genocide. The broadcast, set for 9 p.m. Eastern time tomorrow, December 4, is meant to mark the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. That's 60 years ago next Tuesday.
In the 2-hour documentary, CNN reporter Christiane Amanpour (above left) (photo credit) will present interviews not only with world leaders, but also with persons personally affected by atrocities in, for example, 1970s Cambodia, 1980s Iraq, 1990s Bosnia and Rwanda, and 2003 Darfur. According to a CNN release, the documentary concludes

that instead of using a U.N. treaty outlawing genocide as a springboard to action, political leaders have invoked reason after reason to make intervention seem unnecessary, pointless and even counter-productive.

The conclusion dovetails with the one that Samantha Power reached respecting the United States in her Pulitzer Prizewinning book A Problem from Hell (2003) -- itself worth a reread at this anniversary time.

* Why "perhaps," one might ask? Surely CNN deserves much credit for devoting resources to this important issue. Yet this prospective viewer remains wary on account of the title chosen: Scream Bloody Murder. Let's hope the documentary itself is far less sensationalist.

On November 25

On this day in ...

... 1988 (20 years ago today), the instrument of U.S. ratification of the Convention Against Genocide was deposited with the United Nations. The United States had signed the treaty, which today has 140 states parties, on December 11, 1948.

... 1973 (35 years ago today), the Greek military rolled tanks into Athens and staged a coup amid "growing unrest in Greece," "eight days after student uprisings in which 13 people died and hundreds were injured." The regime lasted only a few months.

On May 5

On this day in ...
... 1985, President Ronald Reagan laid a memorial wreath at a cemetery in Bitburg, Germany (right). The furor that ensued -- among those buried in the cemetery were many Nazi SS officers -- prompted Reagan to push for ratification of the Convention Against Genocide. (An internal memorandum sympathetic to ratification opponents, yet ultimately recommending ratification for geopolitical reasons, was penned, as I've written (pp. 1345-46), by Department of Justice lawyer John G. Roberts, Jr., now Chief Justice of the United States.) U.S. instruments of ratification were deposited on Nov. 25, 1988, 2 weeks shy of 40 years after the United States 1st signed the treaty.
... 1892, Dorothy Annie Elizabeth Garrod (below left) was born in Oxford, England. Following studies in archeology at Newnham College Cambridge and Oxford University, Garrod launched a distinguished career in the field, conducting fieldwork through Europe and the Near East. At the Mount Carmel caves in what is now Israel, she became the 1st person to find a Neanderthal skeleton outside Europe. Garrod "also was a pioneer for women": in 1939 she became Cambridge's 1st woman professor, at a time when women were not permitted to obtain degrees there. Later she was the 1st women to win the Gold Medal of London's Society of Antiquaries. Garrod died in 1969.

Go On! Commemorating the Anniversary of the 1948 Convention Against Genocide

(Go On! is an occasional item on symposia of interest.) Kudos to Rutgers School of Law, Newark, New Jersey, for assembling many top social science and legal scholars for an April 4, 2008, conference devoted to the Convention Against Genocide, which the U.N. General Assembly adopted on December 9, 1948.
The United Nations Genocide Convention: A 60th Anniversary Commemoration will include a keynote by Juan E. Mendéz, President of the International Center for Transitional Justice. In addition, our colleague Karima Bennoune will moderate a "Past, Present, and Future" panel featuring Frank Chalk, Jens Meierhenrich, and Martin Mennecke. Dennis Papazian will moderate "Applied: Case Studies," with talks by Sheri Rosenberg (left), Joyce Apsel (below left), and Marcelo Raffin. IntLawGrrls' own Jaya Ramji-Nogales will moderate the final panel, "Prevention," featuring Roger S. Clark, Helen Fein (right), and Gregory Stanton.
A promising kickoff for this anniversary year of the Convention.

A New Genocide Statute: Above & Beyond

Genocide is a modern word for an ancient crime. The term “genocide” was originally coined by Polish jurist Raphael Lemkin (right), who, after learning of the Armenian massacre of World War I, campaigned tirelessly for the drafting of a multilateral treaty prohibiting the crime. Despite his efforts, it took the events of World War II to compel the international community to finally bring Lemkin’s project to fruition. The Charters of the Nuremberg and Tokyo Tribunals did not include genocide as an enumerated crime; instead, they provided for the prosecution of war crimes, crimes against humanity, and crimes against the peace. However, the Nuremberg indictment did charge the Nazi defendants with committing genocide, which it defined as

the extermination of racial and national groups … in certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, and Gypsies.

Further, the Judgment clearly addressed acts that would amount to genocide under the contemporary definition of the crime.

Following that Nuremberg Judgment in 1946, the United Nations General Assembly (below right) took up the matter of genocide and passed a Resolution (96(I)) confirming that genocide constitutes a crime under international law, the punishment of which is a matter of international concern. The unanimous Resolution also recommended that the United Nations draw up a draft convention on genocide to be submitted to the full General Assembly for signature and ratification. The Secretary-General began work on a draft Convention in 1947. This draft was passed to an ad hoc Committee of the Economic and Social Council (ECOSOC) and then to the United Nations General Assembly, which adopted the Convention on December 9, 1948. The Convention entered into force in January 1951 and, to date, it has been ratified by 133 States.

Throughout this drafting process, the provisions concerning the element of intent (mens rea), the enumerated protected groups, the inclusion of cultural genocide, and application of universal jurisdiction received the most intense debate. With respect to the latter feature, unlike other international criminal law (ICL) treaties, the Genocide Convention does not obligate state parties to exercise universal jurisdiction over acts of genocide. Instead, the treaty obligates state parties to assert jurisdiction over genocide committed on their territories pursuant to the classic territorial principle. The Convention also contemplates the existence of a permanent international tribunal, which was a mere twinkle in the eye of internationalists at the time the Genocide Convention was drafted. Specifically, the Genocide Convention at Article VI provides that:

Persons charged with genocide or any of the other acts enumerated in article III [conspiracy, incitement, attempt, or complicity to commit genocide] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Notwithstanding the treaty's more limited jurisdictional regime, it is widely accepted that genocide is also subject to universal jurisdiction as a matter of permissive CIL, exemplified by the prosecution of Adolph Eichmann by Israel (right).

The United States signed the Genocide Convention on December 11, 1948, but did not ratify it until October 14, 1988. Although initially supportive of the treaty, the United States experienced a resurgence during the Cold War years of ideas that viewed international treaties as threats to American sovereignty. The American Bar Association (ABA) was one of the most outspoken opponents of ratification, arguing that human rights issues were “essentially a domestic matter” and were therefore not “properly the subject of negotiations with a foreign country.” Additionally, the ABA believed that ratification of the treaty would threaten the federal nature of the United States by establishing a crime of genocide under federal law, which, it argued, would undercut a traditional domain of state law.

After years of failed attempts to urge the Senate to ratify the treaty, the NGO community that comprised the umbrella Ad Hoc Committee on Human Rights and Genocide Treaties began to make progress. In 1984, President Ronald Reagan (left) became a champion of the cause, urging “early Senate action on genocide in order to assist [the United States’] efforts to expand human freedom and fight human rights abuses around the world.” By the time the treaty was finally ratified in 1988, Senator William Proxmire (D-Wisconsin) (below left), a major proponent of ratification and for whom the treaty legislation was named, had delivered over three thousand speeches on the Senate floor concerning the genocide treaty—one a day for nineteen years. As he signed the implementing legislation into law on November 4, 1988, President Reagan acknowledged the historical importance of the United States’ accession to the Genocide Convention when he said he was “delighted to fulfill the promise made by Harry Truman to all the people of the world—and especially the Jewish people.” (For this history, see William Korey's 1997 article, The United States and the Genocide Convention: Leading Advocate and Leading Obstacle.

Congress originally codified the prohibition against genocide in U.S. statutory law at 18 U.S.C. § 1091, which states that the crime of genocide has been committed when a person, “whether in time of peace or in time of war” and

with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—

(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group.…

The statute originally applied only to acts of genocide that occurred within the United States or to acts that were perpetrated by a U.S. national (pursuant to both the territorial and nationality principles of adjudicative jurisdiction). In December 2007, Congress, having earlier in the year heard testimony from, among others, IntLawGrrl Diane Orentlicher, expanded the statute. (Diane's October 2007 testimony to a House of Representatives subcommittee is here; she'd testified before a Senate subcommittee 'way back in February 2007. Our Opinio Juris colleague Kevin Jon Heller posted on this development here.)

By dint of the so-called Genocide Accountability Act of 2007, the proscription now covers situations in which the perpetrator

► is a permanent resident alien in the United States,

► is a stateless person, or

►is found, or brought into, the United States, even if the act occurs outside the United States.

This more fully implements the principle of universal jurisdiction. Perhaps ironically, Republican administrations have made the biggest strides in domesticating the international prohibition against genocide in U.S. law through ratification of the treaty and the enactment and then expansion of the domestic implementing legislation.

The United States has historically been reticent to utilize the principle of universal jurisdiction with respect to human rights crimes rather than terrorism, even with the statutory authorization (and arguably treaty obligation) to do so. The case against Liberian Chuckie Taylor presents a first effort, as earlier blogged here and here. It remains to be seen whether this amendment will make any difference in actual practice.

On December 9, ...

... 1948, the U.N. General Assembly adopted and opened for signature the Convention on the Prevention and Punishment of the Crime of Genocide. The Convention, which entered into force on January 12, 1951, now has 133 states parties. I"ve written about its drafting history, as well as the abiding problem of defining groups protected under the convention, here; IntLawGrrl Beth Van Schaack's discussed similar issues here.
... 1948, in an address that's depicted at right and can be read and heard here, former 1st Lady Eleanor Roosevelt, as head of the U.S. delegation, spoke to the U.N. General Assembly in favor of the Universal Declaration of Human Rights that she had helped to draft. She said in part:

This Declaration is based upon the spiritual fact that man must have freedom in which to develop his full stature and through common effort to raise the level of human dignity. We have much to do to fully achieve and to assure the rights set forth in this Declaration. But having them put before us with the moral backing of 58 nations will be a great step forward.
As we here bring to fruition our labors on this Declaration of Human Rights, we must at the same time rededicate ourselves to the unfinished task which lies before us. We can now move on with new courage and inspiration to the completion of an international covenant on human rights and of measures for the implementation of
human rights.

The text would be adopted the next day.
... 1954, U.S. Rep. Mary Fallin (R-Okla.) was born in Warrensburg, Missouri.

On December 6, ...

... 1788, Nicole-Reine Lepaute (left), 66, died in the French town of St. Cloud, just to the west of Paris. An accomplished astronomer and mathematician, she was a rarity among the women of her time. Her achievements included calculating the time of a solar eclipse and the return of Halley's Comet.
... 1999, Georges Rutaganda, leader of Rwanda's Interahamwe militia, was convicted of genocide and extermination as a crime against humanity, and sentenced to life in prison, by the International Criminal Tribunal for Rwanda for his part in the mass killings in that country in 1994. In affirming that judgment in 2003, the Appeals Chamber additionally convicted him of violating Article 3 common to the Geneva Conventions.

A community of courts still working out bugs

In addition to tighter waistbands, the Thanksgiving holidays yielded some interesting developments in the “community of courts” adjudicating international criminal law. For one, the International Criminal Tribunal for Rwanda (ICTR) finally formally requested France to prosecute Fr. Wenceslas Munyeshyaka (left) and Laurent Bucyibaruta (no photo available), two Rwandans suspected of genocide who had been twice arrested in France. The ICTR had charged the pair with, inter alia, genocide and incitement to commit genocide and various crimes against humanity (extermination, murder and rape). Rwanda has already tried and convicted Munyeshyaka, a parish priest, in absentia. The two have been under investigation in France for many years pursuant to a lawsuit filed by victims of the Rwandan genocide.
The Prosecution had requested France to proceed pursuant to Rule 11bis of the ICTR Statute, which reads in operative part:

(A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the president may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a case,

so that those authorities should forthwith refer the case to the appropriate court for trial within that State.

Rule 11bis was passed by the Tribunals’ judges to help facilitate the two ad hoc Tribunals’ Security Council-mandated Completion Strategies. U.N. Security Council Resolution 1503 (2003) required the ICTR to formulate a strategy to transfer cases involving lower-level accused to competent national jurisdictions. Subsequently, U.N. Security Council Resolution 1534 (2004) called on the ICTY/R prosecutors to review their respective case loads

with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions.

These are not the first such referral efforts from the ICTR. Indeed, the Rwandan Rule 11bis proceedings have been plagued by a series of legal snafus that reveal that the international community has not yet developed a seamless system of international justice. Last year, the ICTR denied a referral of Michel Bagaragaza (right) to a domestic forum whose operative penal code lacked the particulars of international crimes, even where the underlying conduct was considered criminal. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision On The Prosecution Motion For Referral To The Kingdom Of Norway (May 19, 2006). Norway had enacted a general penal provision providing for the assertion of jurisdiction over some crimes (including murder) when committed by a foreigner, provided that the prosecution was authorized by the king. The maximum penalty available under Norwegian law was 21 years. In its submission to the ICTR in support of the proposed referral, Norway explained that in ratifying the Genocide Convention, its Parliament considered it unnecessary to enact implementing legislation as all of the conduct prohibited under the Convention was already criminal under existing provisions of its criminal law. Proof that the defendant was acting with genocidal intent would operate as an aggravating factor at sentencing.
In denying the referral, the Trial Chamber acknowledged that although Norway could lawfully exercise extraterritorial jurisdiction over the defendant, it lacked full jurisdiction within the meaning of Rule 11bis, which requires a showing of jurisdiction ratione materiae (subject matter jurisdiction), ratione personae (jurisdiction over the person), ratione loci (territorial jurisdiction), & ratione temporis (temporal jurisdiction). The Trial Chamber found that without a penal provision on genocide, the requisite legal framework did not exist to properly prosecute the conduct of the accused and accord an appropriate punishment based upon the charges pending before the Tribunal. In this regard, the Trial Chamber considered the adjudication of the defendant’s specific intent to commit genocide to be crucial in any subsequent domestic prosecution. A prosecution for mere homicide would not, in the Trial Chamber’s estimation, give

Bagaragaza’s alleged criminal acts … their full legal qualification under Norwegian criminal law.

Id. at para. 16.
On interlocutory appeal, the Prosecution argued that it was enough to show that the defendant would be prosecuted for the underlying conduct, even if the crime to be charged did not contain legal elements identical to the crimes within the ICTR Statute. For support, the Prosecution noted that Rule 11bis concerns the referral of a “case” and not a “crime.” The Appeals Chamber disagreed, noting that the prohibitions against homicide and genocide protect different values:

[t]he penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

Although the Appeals Chamber acknowledged that its ruling would impact the ability to make further referrals, it remained convinced that it could not

sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law.

Id. at para. 18.
The Prosecution subsequently amended the Indictment to include charges of war crimes as alternative counts. Eventually, the ICTR referred Bagaragaza’s case to the Netherlands, which indicated that it could prosecute the defendant for the charged crimes under the War Crimes Act of 1952 and the Genocide Convention Implementation Act of 1964, although some open questions remained regarding jurisdiction rationae personae. See Prosecutor v. Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, at para. 12 (April 13, 2007). A Dutch court subsequently ruled, however, that the Genocide Implementation Act was inapplicable, because it allowed for the exercise of universal jurisdiction only where a case was transferred to the Netherlands from another jurisdiction in conformity with the Dutch Criminal Code, which requires a treaty basis for transfer from a “foreign state.” Id. at para. 22. Accordingly, the Prosecution’s request for referral was withdrawn and Bagaragaza was returned to custody in Arusha, notwithstanding that his security was in jeopardy as a result of his cooperation with the Prosecution. He has languished in detention in Arusha ever since. Referral to Rwanda has been foreclosed out of concerns for due process and the possibility of the death penalty there.
Referrals to Bosnian domestic courts have been somewhat smoother. Also over the Thanksgiving holidays, the Appeals Chamber for the Bosnian War Crimes Chamber affirmed the 34-year sentence of Gojko Jankovic (left). The case came to the Bosnia special court via a prosecution request for referral from the International Criminal Tribunal for the Former Yugoslavia (ICTY). The ICTY had charged Jankovic with torture and rape as both crimes against humanity and war crimes. In considering the Prosecution’s referral motion, which the defendant opposed, an ICTY Referral Bench ruled that both the criminal code of the former Yugoslavia (which was in place when the defendant acted) and the new criminal code of Bosnia-Herzegovina (which was enacted after the defendant acted) contained provisions allowing for his prosecution for war crimes. See Prosecutor v. Jankovic, Case No. IT-96-23/2-PT, Decision on Referral of Case (July 22, 2005). The Bosnian code also codified crimes against humanity and the doctrine of superior responsibility. Id. at paras. 28-30. The Bench ruled that referral was appropriate and that it was for the domestic courts to decide which penal code was applicable. Id. at para. 41. The final sentence was the longest awarded by the special War Crimes Chamber to date.
These cases reveal that while many states are codifying international crimes in connection with their ratification of the ICC Statute and their Chapter VII obligations to cooperate with the two ad hoc Tribunals, there are still a number of bugs to be worked out before we have a seamless regime of jurisdictional competency.

On August 2, ...

...2001, the International Criminal Tribunal for the former Yugoslavia sentenced Gen. Radislav Krstić to 46 years in prison for genocide in Srebrenica, Bosnia. The judgment by Trial Chamber I, comprising Presiding Judge Almiro Rodrigues and Judges Fouad Riad and Patricia Wald (right), was affirmed on appeal, though his sentence was reduced by 11 years.
...1955, U.S. Rep. Nancy Boyda (D-Kan.) was born in St. Louis, Missouri.

Variation and the definition of genocide

The European Court of Human Rights (ECHR) recently considered the legality of a prosecution for genocide under a German statute providing for universal jurisdiction. Germany’s prosecution of Nicola Jorgic marked one of the first universal jurisdiction cases to be brought and the first German prosecution for genocide since ratification of the Genocide Convention in 1954. Jorgic had fled to Germany after the war in the former Yugoslavia. German officials later charged him with participating in assaults and massacres of Bosniak civilians in his home region of Doboj. National courts have jurisdiction that is concurrent with the International Criminal Tribunal for the Former Yugoslavia (ICTY), although the latter may assert its primacy by virtue of its Chapter VII pedigree. In this case, German prosecutors consulted with the Office of the Prosecutor of the ICTY, which concluded that deferral of jurisdiction was not warranted. So, the case proceeded in the German courts.

Jorgic (above) was convicted of genocide and sentenced to life imprisonment. The crime of genocide is defined in Article 220a of the German Criminal Code. Jurisdiction in Germany was premised on Article 6 of the Code, providing that: "German criminal law shall further apply, regardless of the law of the place of their commission, to the following acts committed abroad: 1. genocide (Section 220a); … 9. acts which, on the basis of an international agreement binding on the Federal Republic of Germany, shall also be prosecuted if they are committed abroad."

After exhausting his domestic remedies—an admissibility requirement for most regional and international human rights bodies—Jorgic challenged his prosecution and conviction before the ECHR (application no. 74613/01) on the ground that the German courts lacked jurisdiction to prosecute him for genocide. Jorgic claimed before the ECHR that his prosecution violated several provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms: his right to a fair trial before a tribunal “established by law” (Article 6(1)), his right to liberty and security (Article 5(1)), and his right to be free from ex post facto prosecution (Article 7).

With regard to the latter claim, Jorgic argued that the German courts had expansively construed the genocide prohibition beyond the contours of positive law. In particular, Jorgic took issue with the German Constitutional Court’s reasoning that the intent to destroy the group “includes the annihilation of a group as a social unit with its special qualities, uniqueness and its feeling of togetherness, not exclusively their physical-biological annihilation.” Citing a General Assembly resolution equating ethnic cleansing in the former Yugoslavia with genocide (GA Res. 47/121), the Court had held that prohibited acts could include destroying or looting houses or buildings of importance to the group or the expulsion of members of the group. (See Nikolai Jorgic, BVerfG, 2 BvR 1290/99 of 12/12/2000, para. 5). The Court reasoned that the prohibition against genocide protects legal interests that “lie[] beyond the individual, namely the social existence of a group.” This, it noted, “has a broader meaning than physical-biological annihilation.” The Court concluded that this interpretation was “within the margins of the possible interpretation of the international law elements of the crime of genocide.” In so ruling, the Court rejected contrary language in the Krstić case before the ICTY.

The case presents two rulings of particular interest to international law enthusiasts:

First, the ECHR ruled that the exercise of jurisdiction by Germany was reasonable and not in violation of principles of public international law. Specifically, the ECHR interpreted Article VI of the Genocide Convention to oblige signatories to exercise territorial jurisdiction over acts of genocide but not to preclude the assertion of universal jurisdiction. For support, it canvassed the statutes of other signatories to the Genocide Convention and other sources (including the Eichmann case) indicating that genocide was subject to universal jurisdiction. In so ruling, the Court invoked the ancient Lotus principle that an exercise of domestic jurisdiction is permitted so long as there is no prohibitive international law rule.

Second, the ECHR ruled that the German courts’ interpretation was both in keeping with the “essence of the offense” and could reasonably have been foreseen by the applicant at the material time with the assistance of counsel. The ECHR determined that several aspects of the actus reus of genocide do not require the physical/biological destruction of the group, so the German court’s interpretation found support in the text of the law. In addition, the ECHR determined that Jorgic could have foreseen the more expansive interpretation of the provision, especially in light of the work of several German scholars advancing such an interpretation and a degree of uncertainty in the law on this point.

Thus, the ECHR determined that the German courts enjoyed discretion under the European Convention to adopt the interpretation of the genocide prohibition that they saw fit. The case suggests that defendants may have little recourse under international human rights principles if they are prosecuted under idiosyncratic definitions or interpretations of international crimes. So long as an interpretation is “foreseeable,” and an interpretation may be considered foreseeable if there is contested academic literature on the topic, than a defendant’s rights under the principle of legality are not infringed.

(post by Beth Van Schaack)