Genocide and Crimes Against Humanity

Spring 2013

Paris 2012

“Come and arrest me”

Raphael Lemkin

Terms • Holocaust: used since middle-

ages, “burning completely” – used for massive disasters or sacrifices

• Shoa: Hebrew word for disaster

• Genocide

• After WWII, ‘Holocaust’ increasingly used synonymously with ‘Shoa’

• Washington Holocaust Memorial Museum

• Boston Holocaust Memorial

• But note: “Armenian Holocaust”

• Compare: Armenian Genocide Museum, Kigali Genocide Memorial Center, Tuol Sleng Genocide Museum

Other episodes of Genocide/”Holocausts”

• Armenian Genocide – in scale, central coordination, and systematic implementation first truly “modern” holocaust

• Cambodia: Khmer Rouge, relative to population, perhaps worst genocide in recorded history

• Bengal/Bangladesh 1971: 1-3 million

• Rwanda – hurricane of death in 1994, killing rate per day more than five times of Nazi holocaust

Other episodes of Genocide/”Holocausts”

• Armenian Genocide – in scale, central coordination, and systematic implementation first truly “modern” holocaust

• Cambodia: Khmer Rouge, relative to population, perhaps worst genocide in recorded history

• Bengal/Bangladesh 1971: 1-3 million

• Rwanda – hurricane of death in 1994, killing rate per day more than five times of Nazi holocaust

Other episodes of Genocide/”Holocausts”

• Armenian Genocide – in scale, central coordination, and systematic implementation first truly “modern” holocaust

• Cambodia: Khmer Rouge, relative to population, perhaps worst genocide in recorded history

• Bengal/Bangladesh 1971: 1-3 million

• Rwanda – hurricane of death in 1994, killing rate per day more than five times of Nazi holocaust

Other episodes of Genocide/”Holocausts”

• Armenian Genocide – in scale, central coordination, and systematic implementation first truly “modern” holocaust

• Cambodia: Khmer Rouge, relative to population, perhaps worst genocide in recorded history

• Bengal/Bangladesh 1971: 1-3 million

• Rwanda – hurricane of death in 1994, killing rate per day more than five times of Nazi holocaust

Convention on Prevention and Punishment of Genocide

• Adopted immediately before the UDHR

• “genocide” appeared in indictments in Nuremberg trials in 45/46

• But trials not primarily about Holocaust

Genocide Convention

• Obligates signatories to “prevent and punish” genocide

• Also punishes attempts to commit genocide (may not involve killing anybody)

• Personal responsibility, including functionaries and private individuals

• Didn’t amount to anything until tribunals on Ruanda and Yugoslavia

Genocide: what?Article 2In 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.

What counts? • Atlantic slavery?

• in the nature of slavery that there was no intention of killing the slaves

• use of term distracting from magnitude of evil inflicted on these occasions?

Genocide?

• city of Potosi in Bolivia, the mountain is the Cerro Rico

• Silver mining killed between one and eight million people

• possibly world’s biggest graveyard

Should genocide be a special crime? The political dimension

• Problem 1: now we have a lot of discussion of precisely when something should be considered a genocide

• Problem 2: charge of genocide is politically unproductive – conversation-stopper

Could there be justified episodes of genocide?

Justifiable episodes of genocide?

• Revolution in Haiti

• Genocide?

• Justified?

Justifiable episodes of genocide?

Convention: United States ratified in 1988

• Controversial visit to German military cemetery in Bitburg that also included SS graves

• In response, Reagan administration felt pressure to move ahead with ratification

United States ratified in 1988

Reservations

(1) That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.

(2) That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

Holocaust: “How could it come to this?”

• Micro-level: Psychological explanations

• Macro-level: sociological/political-scientific explanations

• Can take on different forms, and do not necessarily have to be competing

Holocaust: result of modernity?• state provides machinery for

systematic exercise of violence against those who do not belong to it, or to those inside who do not fit with ideology that has hijacked machinery

• violence exercised under all insignia of value, purpose, and power available to states ---- enormous motivational potential to enlist individuals to do state’s bidding

Milgram Experiments (1961)

Zimbardo Prison Experiments (1971)

• Prisoners and guards rapidly adapted to roles, stepping beyond boundaries of what had been predicted and leading to dangerous and psychologically damaging situations

• One-third of guards judged to have exhibited "genuine" sadistic tendencies, while many prisoners were emotionally traumatized and two had to be removed from the experiment early

Crimes Against Humanity• Term emerged prominently during WWI, especially with

regard to Armenian genocide

• First judicial use: London Charter of International Military Tribunal set down laws and procedures for Nuremberg trials

• only crimes of European Axis Powers could be tried

• Context was international conflict, but nexus has since been removed

• Point was to break into system of state sovereignty

Rome Statute Explanatory Memorandum

• “are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.)”

Crimes against Humanity – Human Rights – Genocide

• Human rights violations are individuated – perspective is towards victims

• Crimes against Humanity: expresses violation of humanity as such in sense explained

• Genocide: crime against humanity, but stands out because of special character

Rome Statute

• Passed in 1998, went into effect in 2002

• 120 voted in 1998 to adopt statute, but opposed were e.g. US, India, China, Israel

• Involved NGO’s, especially Amnesty and Human Rights Watch

First prosecutor

Second prosecutor: Fatou Bensouda

Relationship to Security Council• Three ways of initiating investigations:

state party referral; prosecutor takes initiative (under constraints); and Security Council referral

• Security Council can block investigations (up to one year, then renewable)

• Security Council retains much control – but also adds its authority (in case of non-member states)

• Greatest achievement: that prosecutor can initiate investigations – but this is subject to complementarity

Relationship to US • Clinton signed, Bush “un-signed”

• Under Bush, US concluded about 100 bilateral immunity treaties – most of which remained unratified

• Worries: court might charge Americans for activities on territory of signature states, and that prosecutor becomes too powerful

Article 5 Crimes within the jurisdiction of the Court

• The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

• (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.

Article 7: Crimes Against Humanity• For the purpose of this Statute, "crime against humanity" means any of the following acts

when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: – (a) Murder– (b) Extermination– (c) Enslavement– (d) Deportation or forcible transfer of population;– (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of

international law;– (f) Torture– (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other

form of sexual violence of comparable gravity;– (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,

cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

– (i) Enforced disappearance of persons;– (j) The crime of apartheid;– (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury

to body or to mental or physical health.

Article 8: war crimes(i) Wilful killing; (ii) Torture or inhuman treatment, including biological

experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by

military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the

forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the

rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages.

Crime of aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

Acts of aggression (2010)(a) The invasion or attack by the armed forces of a State of the territory of another State, or any

military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets

of another State;(e) The use of armed forces of one State which are within the territory of another State with the

agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

No universal jurisdiction!

Article 17 Issues of admissibility Complementarity

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

Article 28: Command Responsibility

• (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

• (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Article 33: superior orders

• The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

• (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and

• (c) The order was not manifestly unlawful.• 2. For the purposes of this article, orders to commit

genocide or crimes against humanity are manifestly unlawful.