International Law PDF
International Law PDF
International Law PDF
Martin Mennecke
Introduction
War crimes, crimes against humanity, aggression and genocide – international law recognises
many international crimes. None of these, however, attract the same attention as genocide
does. When allegations of genocide are raised, the world pricks up its ears. Using the term
genocide can have far-reaching implications.
Lemkin’s work was clearly motivated by his personal experience of the war and the Holocaust,
including the loss of dozens of family members. However Lemkin also built on his earlier work
concerning atrocities committed against the Armenians and in various European colonies.
At the Nuremberg trial, the new concept of genocide did not play any significant role. As a mat-
ter of fact, genocide was not incorporated into the rules establishing the Nuremberg Tribunal
that was to hear the cases against the political and military leadership of Nazi Germany. This
was in part due to the fact that Lemkin’s invention of the term ‘genocide’ did not yet exist
under international law. Immediately after the war, the attention did not centre on the policy
of extermination, but on Nazi Germany’s wars of aggression which were referred to as ‘the
supreme crime’. Lemkin was not pleased with this. He had personally travelled to Nuremberg
to lobby for the inclusion of genocide charges into the proceedings, but to no avail. Lemkin
redirected his efforts towards lobbying the newly founded United Nations to adopt a legal
147
instrument prohibiting genocide – and so it did in 1948, just four years after Lemkin had
published his first thoughts on genocide.
At the time, the UN Genocide Convention was considered a milestone. The euphoric as-
sessment of the new genocide treaty was, however, not a sentiment shared by all observers.
International law professor Georg Schwarzenberger commented that the ‘whole Convention is
based on the assumption of virtuous governments and criminal individuals, a reversal of the
truth (…) [T]he Convention is unnecessary where it can be applied and inapplicable where it
may be necessary. It is an insult to intelligence and dangerous (…) [and will] prove on examina-
tion to mark no real advance.’
Today, we know that the critics were not totally wrong. The pledge given in the preamble of
the Genocide Convention ‘to liberate mankind from such an odious scourge’ in order to avoid
for the future such ‘great losses on humanity’, this pledge has not been realised. Instead the
period after 1948 also saw numerous instances of genocidal violence, turning the 20 th century
148 into what some have called the ‘century of genocide.’ The writer David Rieff therefore once
quipped that the pledge of ‘never again’ only could be understood to mean ‘never again will
Germans kill Jews in Europe’.
2. The UN Genocide Convention on the Prevention and Punishment of the Crime of Genocide
The UN Genocide Convention was adopted by the UN General Assembly on 9 December 1948, one
day after the Universal Declaration of Human Rights was passed by the same forum. The treaty
was drafted and negotiated under the auspices of the United Nations – therefore the reference
to the UN in the title of the instrument – but is otherwise an independent international treaty
among states and not linked to the United Nations as such. As with all international treaties,
the Genocide Convention only became a binding legal instrument once a sufficient number of
states had formally agreed to be bound by this new treaty. This was the case on 12 January 1951
and since then, the Genocide Convention has been in force and applies to its member states.
This means that crimes committed prior to 1951 cannot be legally prosecuted under the Geno-
cide Convention. This is true, for example, for both the Armenian mass killings, the murderous
persecution of the Sinti and Roma and the Holocaust. That being said, one can of course still
apply the label ‘genocide’ to these and other crimes outside the courtroom.
Today the UN Genocide Convention counts 142 member states. This means that more than
50 states have not yet ratified the Genocide Convention, including states such as Somalia and
Japan. This does not mean, however, that these states can commit genocide without violating
international law. Instead these states are bound by what is called customary international
law, building on the long-standing general practice and legal opinion of the international com-
munity of states pursuant to which genocide is a crime under international law. This has been
confirmed in numerous international judgements. Indeed, the prohibition of genocide is said to
enjoy jus cogens status.
Jus cogens
This is a Latin term meaning ‘compelling law’. It refers to a special category of internation-
al law norms which are considered to be peremptory so that no state can legally deviate
from them. Other norms with a jus cogens status include the prohibition of slavery and the
prohibition of torture. International law does not explicitly regulate, however, what the
consequences of a violation of a jus cogens norm are.
2.1 Provisions
The UN Genocide Convention consists of nineteen provisions. The Convention outlines how
member states are to deal with the crime of genocide and puts great emphasis on how to
punish it, including several provisions that refer to criminal law and the accountability of indi-
viduals. At the same time the Genocide Convention could be characterised as a human rights
instrument, as it sets out to protect the right of existence of certain groups listed in the treaty. 149
Finally, the Genocide Convention also deals with states and their responsibilities, as it concerns
their options and duties as regards the prevention and punishment of the crime of genocide.
The UN Genocide Convention is thus an international treaty that both deals with human rights
issues, questions of criminal law and state responsibility.
Turning to specific provisions of the Genocide Convention, Article 1 stipulates that member
states ‘undertake to prevent and punish the crime of genocide’. In Article 2 the treaty defines
the crime of genocide. Remarkably, the Genocide Convention does not establish any specific
institutions such as a court or a committee to supervise the implementation of the aforemen-
tioned duties. Article 6 refers to an international penal tribunal, but the treaty stops short of
establishing it – reflecting the lack of political will to do so at the time of the treaty’s drafting.
In Article 9 the Genocide Convention refers to an actual tool to address genocide: state par-
ties to the treaty can take disputes with other member states concerning the Convention to
the International Court of Justice (ICJ). This court does not deal with questions of individual
criminal accountability, but settles inter-state disputes. In practice, however, this reference to
the ICJ has not resulted into very many cases.
Definition
In the present Convention, genocide means any of the following acts committed with
the intent to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
150 (d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
3.1 Intent
A first reading of the definition allows us to make several important observations. First, the
definition is composed of two equally important parts describing respectively the perpetra-
tor’s intent and then the actions (in letters a-e) that can constitute genocide. Concerning the
perpetrator’s intent, the definition requires a very specific intent, i.e. the intent to focus on
destroying one of the protected groups and not merely the intent to commit one of the geno-
cidal acts. The question is thus not only whether the perpetrator wanted to kill an individual
person – but whether he or she did so intending to destroy the group the victims belonged to.
This form of intent is difficult to prove; in court proceedings, judges often infer the intent
from the actual events on the ground, for example from speeches or writings authored by the
perpetrator. Only if both requirements, including the special intent, are met in a given situa-
tion, can one conclude genocide has been committed in terms of international law.
Secondly, and quite different from what one might expect, the legal definition of genocide
includes under relevant acts not only ‘killing’, but also other forms of conduct including, for
example, the forcible transfer of children. It is important to note that legally speaking genocide
does not require mass killings or gas chambers, but can be committed in different ways – it all
depends on whether the perpetrator has the requisite intent.
Thirdly, the legal definition of genocide only protects certain groups against destruction,
i.e. national, religious, racial and ethnic groups. This listing is not open-ended or exemplary –
there are these four groups, no more.
Fourthly, the legal definition does not define genocide as the total annihilation of a group,
but makes it a crime to intend to destroy any of these groups in whole or in part. Thus even a
brief first survey shows that genocide under international law is quite different from how the
layman might define it.
4. Difficulties in practice
Two international tribunals have, in the cases concerning the war in the Former Yugoslavia
and the Rwandan genocide, applied the legal definition of genocide and shed more light on its
scope and meaning. There are two aspects which deserve our particular attention. As stated,
the genocide definition provided by the UN Genocide Convention only protects four specified
groups. This has been widely criticised as being too limited and arbitrary, but it can only be
changed by those making international law, i.e. states. The work of the tribunals identified
another issue: who exactly is protected as a ‘national, ethnic, racial and religious group’? Scru-
tinising the Rwandan genocide it all of a sudden appeared that the two prevalent groups – the
Tutsi and the Hutu – spoke the same language, shared the same customs and were both Chris-
tian. How could the victims then be a distinct ‘ethnic’ group? It took the judges of the relevant 151
tribunal, the International Criminal Tribunal for Rwanda, several years to work out a convincing
answer. Now it is generally accepted that the question is not whether the victim group lives
up to some abstract definition for ethnic groups taken from an encyclopaedia, but whether
the perpetrators have perceived the victims as members of a distinct ethnic, racial etc. group.
Another important question facing the international tribunals was what to make of the defi-
nition’s reference to destroying the group ‘in whole or in part.’ The legal definition of genocide
is focused on the perpetrator’s intent, not on the success of his or her actions – in other
words, for any determination of genocide it is not necessary that the whole victim group has
been exterminated. As for the meaning of the ‘in part’ segment, the international case law
found that there is no minimum number of victims. Instead, the phrase ‘in part’ involves two
considerations, which might be seen as ‘qualitative’ and ‘quantitative’. As for the latter, the
tribunals have held that the perpetrator must have aimed at a ‘substantial’ part of the victim
group, i.e. a considerable number of individuals. As for ‘quality’, the question to ask is whether
the perpetrator aimed at a ‘significant part’ of the group, such as for example its leadership or
all the women. This intent can also be focused on a certain geographically limited area. How
exactly to apply the ‘in part’ segment, however, remains under discussion.
There are more such difficult questions. For example, in one of the early judgements concern-
ing the Rwandan genocide, the judges held that rape can form part of genocidal violence. This
was a remarkable holding, as sexual violence hitherto had not been given much prominence in
international criminal law. Consequently, the judgement was celebrated by many as an overdue
recognition of the suffering of women during genocides. On first sight the decision makes im-
mediate sense, as rape obviously causes the victim both mental and physical harm. On further
thought, however, the question arises whether the perpetrator indeed commits the rape with
the intent to destroy the relevant group as such – as required by the legal definition. It is
notable that since the first seminal decision classifying rape as genocide there has been very
little follow-up in subsequent judgements. Many genocide scholars include sexual violence into
their discussions of genocide, but there is still significant room for clarification when applying
the legal definition.
lands or France are not with regards to the Rwandan genocide. This limitation to some extent
lessens the significance of the duty to punish genocide, as the home state most often also
will be the one responsible for the mass atrocities to start with – which in turn reduces the
likelihood of actual investigations. Only once there has been a shift of power can one expect
domestic trials on genocide as, for example, in Bosnia and Rwanda.
The Secretary-General
addresses the ICTR
Staff, 27 February 2009.
Source: United Nations
156 6.3 Individual responsibility – international criminal tribunals
There is by now a whole range of international and semi-international tribunals where individu-
als can be prosecuted for violating the prohibition of genocide. To appreciate today’s variety
of options, it needs to be recalled that it took the international community of states almost
half a century from the adoption of the Genocide Convention before it mustered the political
will to establish the first tribunal to prosecute individuals guilty of genocide. This happened
in 1993 when the UN Security Council established the International Criminal Tribunal for the
former Yugoslavia (ICTY) to hold those accountable that were deemed responsible for the mas-
sive human rights violations during the then ongoing conflict in the former Yugoslavia. A year
later, the Security Council established another tribunal, the International Criminal Tribunal for
Rwanda (ICTR), to prosecute those with the greatest responsibility for the Rwandan genocide.
Both tribunals were thus created by the UN Security Council, focused on one certain conflict
and were designed to be only temporary in their tasks. The ICTR became the institution to issue
the first genocide judgement of any international court when, in 1998, it convicted a Rwandan
major by the name of Jean Paul Akayesu for genocide. The ICTR has since heard some 60 addi-
tional genocide cases and will have to finish its work by 2013 or 14 because the Security Council
has decided so. Conversely, the ICTY has only produced a handful of genocide convictions and
all of them concern the mass executions in July 1995, when Bosnian Serbs murdered more than
8,000 Bosnian Muslim boys and men at the town of Srebrenica. The ICTY will also soon have to
conclude its work.
In addition, the Court has issued a number of arrest warrants, including one against the sitting
president of Sudan, Omar Al Bashir. The ICC Prosecutor views the ongoing violence in the Darfur
province of Sudan as genocide and asserts that Bashir is guilty of genocide. So far Sudan has
rejected any cooperation with the Court – but the difference between the ICC and all other
international institutions dealing with international crimes is that the ICC is a permanent in-
stitution. It can wait. This may not be enough at the time for the victims of genocide – but it
keeps genocide and the international promise to punish genocide on the agenda.
7. Punishing genocidaires
The Genocide Convention focuses on punishing the crime of genocide – but the question is
whether the punishment of the perpetrators indeed always is an option, or even the appropri-
158 ate, most promising answer. Reading this in the context of the Holocaust, even asking the very
question may seem frivolous. Of course genocidaires should be punished before a court of law.
According to this opinion the question rather ought to be whether any form of punishment
ever could be appropriate to respond to the horrors of genocide.
But then there is the case of the Rwandan genocide. In little more than 100 days, in a country
of some 8 million people, more than 800,000 Tutsi were slaughtered – almost three quarters
of the country’s total Tutsi population. This genocide was not committed by means of gas
chambers or mass executions; instead most of the killings were done by clubbing, stabbing,
and so on. It is believed that several hundred thousand individuals took part in the killings.
After the genocide there were only some 40 lawyers left in Rwanda to deal with this – the
rest had either been killed or fled the country. To prosecute the perpetrators of the genocide
before regular courts in Rwanda would have been an impossible task and literally have taken
hundreds of years. At the same time, many Rwandans also questioned whether an exclusive
focus on punishment would allow the country to achieve any meaningful reconciliation. After
all, the genocide stemmed from an internal struggle for power among the two groups – Tutsi
and Hutu – living side by side in the same communities, both prior to and after the genocide.
The complex situation in post-genocide Rwanda resulted into a whole variety of different
mechanisms being used to address the crimes. There was the aforementioned International
Criminal Tribunal for Rwanda to prosecute the main and top level perpetrators of the genocide;
there were the domestic courts of Rwanda to address the perpetrators one level below; and then
there were traditional courts, called gacaca, to hold accountable the low-level perpetrators at
the village level. Here a group of villagers without legal education would hear both the accused
and the other members of the local community before either acquitting or sentencing the ac-
cused to community work or time in prison. Altogether more than one million Rwandans were
processed through the gacaca system. Some observers consider this a valuable and meaningful
recycling of a traditional justice mechanism; others, especially international human rights organi-
sations, were rather critical, as gacaca did not live up to universal human rights standards, as for
example the accused were not provided with defence lawyers. Also the victims of the genocide
were divided; some would have preferred proper trials leading to serious prison sentences.
This was the first substantive genocide judgement issued by the UN’s highest judicial
organ, the International Court of Justice (ICJ). The ICJ does not deal with the criminal ac-
countability of individuals, but looks at the responsibility of states for violating interna-
tional law. The Court held that Serbia did not commit genocide, but failed both to prevent
the genocide committed by Bosnian Serbs at Srebrenica in July 1995 and to punish the
perpetrators of this genocide.
Headquarters of the United Nations in New York with the flags of participating nations
Source: United Nations