Fragile Humanity

1. Fragile Humanity Dr Maurice Mullard Lecture 8

2. Some Watersheds • Removal of aboriginal groups and progress Native Indians 1870s as America drove West after the civil war Australia Brazil, • Holocaust 6 million • Soviet Union Stalin Gulags approx 30 million • MAO Cultural Revolution 8 million • Pol Pot Khmer Rouge 2 million • Bosnia Kosvar • Rwanda Darfur • Palestinians 1948 700,00 displaced

3. ‘Geneva Convention 1948 • The crime of genocide (art. 6) • Crimes against humanity (art. 7) • War crimes (art. 8) • The crime of aggression (art. 5(2))

4. Definition of the Crime of Genocide For the purposes of thisStatute, genocidemeansany of the followingactscommittedwithintent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:   (a) Killingmembers of the group;   (b) Causingseriousbodily or mental harm to members of the group;   (c) Deliberatelyinflicting on the group conditions of life calculated to bring about itsphysical destruction in whole or in part;   (d) Imposingmeasuresintended to preventbirthswithin the group;   (e) Forciblytransferringchildren of the group to another group.

5. Holocaust a crime against humanity not genocide at Nuremburg what happened to Jewish communities in Germany but not the political disappearances • US Sterilsationprogramme of women with special needs 1934 to 1970 files kept secret specialists involved went to work in Nazi Germany • Disappearances of Gypsies not defined as genocide • Yugoslavia and Rwanda acquitals on genoicide

6. The Palestinians • Removal of 700,00 Palestine families in 1948 described as a fifth column not to be trusted inside the new Israel • Zionist ideology the land of Israel given to the Jews by God Arabs are invaders River Jordan to the sea • Removal necessary for survival of Israel • Syria amenmdent on genoicde people fleeing to safety cultural genoicide not accepted only physical destruction

7. Identical definitions of genocide • Convention for the Prevention and Punishment of the Crime of Genocide, 1948 (art. II) • ‘crimes against humanity’, not ‘genocide’, is prosecuted at Nuremberg and Tokyo • Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), 1993 (art. 4) • Statute of the International Criminal Tribunal for Rwanda (ICTR), 1994 (art. 2) • Rome Statute of the International Criminal Court (ICC), 1998 (art. 6)

8. Protected groups • ‘a national, ethnical, racial or religious group’ • General Assembly Resolution 96(I) (1946) • ‘Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.’ • Secretariat draft (1947): • “[t]he purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings” • but drafters ultimately reject ‘political’ groups, and subsequent efforts at amendment

9. The Law of the ICC • proposed amendment during drafting of Rome Statute to add ‘political’ to the enumeration • but little support for any change to 1948 definition • Canadian ICC implementing legislation • ‘“genocide” means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations’

10. Rwanda Tribunal 1998 ‘On reading through the travauxpréparatoires of the Genocide Convention (Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly), it appears that the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.’

11. Rwanda ‘The Chamber further accepts that the Tutsis were an ethnic group. In support of this contention the Prosecution provided evidence that since 1931, Rwandans were required to carry identification cards which indicated the ethnicity of the bearer as Hutu, Tutsi or Twa.’

12. Yugoslavia ‘The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the second word war, as “national minorities”, rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.’

13. Darfur Commission (2005) ‘What matters from a legal point of view is the fact that the interpretative expansion of one of the elements of the notion of genocide (the concept of protected group) by the two International Criminal Tribunals is in line with the object and scope of the rules on genocide (to protect from deliberate annihilation essentially stable and permanent human groups, which can be differentiated on one of the grounds contemplated by the Convention and the corresponding customary rules). In addition, this expansive interpretation does not substantially depart from the text of the Genocide Convention and the corresponding customary rules, because it too hinges on four categories of groups which, however, are no longer identified only by their objective connotations but also on the basis of the subjective perceptions of members of groups. Finally, and perhaps more importantly, this broad interpretation has not been challenged by States. It may therefore be safely held that that interpretation and expansion has become part and parcel of international customary law.’

14. But Darfur Commission also adopts subjective approach • rebels viewed as ‘African’, janjaweed as ‘Arab’ • a ‘self-perception’ lacking an objective basis

15. Cultural genocide • or genocide not involving physical destruction • e.g., ‘ethnic cleansing’ • definition: ‘genocide means any of the following acts committed with intent to destroy’ • cultural genocide rejected by drafters (with exception of forcibly transferring children) • Syrian amendment is defeated in 1948: ‘Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment’

16. Eichmann judgments (1961) • ‘[t]he implementation of the ‘Final Solution’, in the sense of total extermination, is to a certain extent connected with the cessation of emigration of Jews from territories under German influence’ • Eichmann acquitted of genocide for pre-1941 acts

17. Krstić (ICTY Trial Chamber, 2001) • ‘despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide‘ • reference to ‘recent developments’ indicates German constitutional court’s expansive reading of the term genocide

18. Judge Shahabuddeen, dissenting, in Krstić Appeal (April 2004) ‘The proposition that the intended destruction must always be physical or biological is supported by much in the literature. However, the proposition overlooks a distinction between the nature of the listed “acts” and the “intent” with which they are done. From their nature, the listed (or initial) acts must indeed take a physical or biological form, but the accompanying intent, by those acts, to destroy the group in whole or in part need not always lead to a destruction of the same character.’

19. Post-Krstić case law • Brđanin (September 2004) • follows majority, accused is acquitted of genocide • no prosecution appeal • Blagojević (January 2005) • endorses Shahabuddeen’s dissent • Darfur Commission consistent with majority of ICTY Appeals Chamber

20. Plan or policy? • ICTY holds that no plan or policy is required • Jelisićacknowledges possibility of lone génocidaire • ICTY extends this to crimes against humanity in Kunarac • but Elements of Crimes require: ‘The conduct took place in the context of a manifest pattern of similar conduct directed against that group.’ • and Rome Statute requires, for crimes against humanity, ‘a State or organizational policy’ • Darfur Commission concludes no genocide because of no evidence of State plan or policy

21. Genocide Crime of Crimes • Menas Rea to destroy how to prove the case • Hitler no one paper exists on the Final Solution only a conference • No policy statement no plan • Crime Tribunals Yugoslavia and Rwanda proving war crimes as oppsed to crimes against humanity • ICC makes a hierarchy of crimes

22. Mens rea • ‘with intent to destroy…’ • specific intent, or dolus specialis • relationship between art. 6 and art. 30? • related issue of motive • addressed in words ‘as such’ (Niyitegaka, ICTR AC, July 2004) • synonymous with ‘discriminatory intent’ (relevant to crime against humanity of persecution)

23. ICTY Acquittals for Absence of Genocidal Intent • lack of mens rea • Krstić (Bosnia April 2004,reversing conviction) • Blagojević(Bosnia, January 2005) • convicted, instead, as accomplices • for conviction as aider and abetter, or accomplice, all that is needed is knowledge of perpetrator’s intent • Krstić saves women, children and doesn’t ‘intend’ to commit genocide • Krstić (ICTY AC, April 2004), Ntakirutimana (ICTR AC, December 2004)

24. Genocide and JCE, command responsibility • joint criminal enterprise (JCE) (art. 25(3)(d)) contemplates guilt of a participant who did not intend to commit genocide • ICTY AC has rejected challenges that JCE does not apply to genocide because of specific intent requirement • command responsibility (art. 28) • ‘should have known’ standard inconsistent with specific intent • but case law (and text of Statutes) say otherwise

25. Is Genocide the ‘Crime of Crimes’ • ‘crime of crimes’ language comes from ICTR TC I in Kambanda (September 1998) • questioned in subsequent pronouncements about hierarchy of crimes • issue relevant for sentencing, multiple convictions • assists in defining relationship between genocide and crimes against humanity • recent cases speak of ‘crime of crimes’ • Niyitegaka(ICTR AC),Krstić(Shahabuddeen dissent)

26. ICC Statute Suggests a Hierarchy (unlike ICTY, ICTR Statutes) • war crimes • arguably less serious than genocide, crimes against humanity • articles 31(1)9c), 33(2), 124, • crimes against humanity • no offense of ‘direct and public incitement’ • article 25(3)(e)