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The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals

  • Guglielmo Verdirame (a1)
Extract

The permanence of the genocide definition1 over more than five decades is remarkable considering how much criticism has been directed against it since the adoption of the Genocide Convention in 1948.2 The existence of a stable internationally agreed definition of genocide presents indubitable advantages, particularly if compared with the lasting uncertainties in the definition of other international crimes, such as crimes against humanity. However, the genocide definition is also characterised by a number of problematic aspects and unresolved interpretative questions, some of which have been addressed in the decisions of the ad hoc Tribunals for the Former Yugoslavia and for Rwanda.3 Divergent approaches to the mens rea requirement, to the definition of the four protected groups against whom genocide can be committed, or to the identification of acts that constitute genocide had been confined to an exclusively academic ambit until not long ago, but can now be determinative of an acquittal or conviction. With the exception of one decision by the ICTY,4 all other judgments on genocide have come from the ICTR, in whose custody are some of the most prominent members of the interim government and of the militias accused of having organised and carried out the 1994 Rwandan genocide.5

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1. The definition was first contained in GA Res. 260 (III), which adopted the Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 [hereinafter Genocide Convention]. It has been confirmed in other international law instruments since then, most notably the Statutes of the two ad hoc Tribunals, infra n.3, and the Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (adopted 17 Jul 1998), in (1998) 37 I.L.M. 1999 [hereinafter ICC Statute]. The only exception is the 1954 Draft Code of Crimes Against Peace and Security of Mankind, adopted by the International Law Commission, which opted for a non-exhaustive enumeration of genocidal acts. The 1991 and the 1996 Draft Codes have reverted to the Convention definition.

2. For example, see Chalk, “Redefining Genocide”, and Kuper, “Theoretical Issues Relating to Genocide: Uses and Abuses”, in Andreopoulos, G. J. (Ed), Genocide: Conceptual and Historical Dimensions (1997).

3. The crime of genocide is part of the subject matter jurisdiction of both the Rwandan and the Yugoslavia Tribunals. Art. 2, International Tribunal for Rwanda, SC Res. 827, 25 May 1993, (1993) 32 I.L.M. 1203 [hereinafter ICTR]; Art. 4, International Tribunal for the Former Yugoslavia, SC Res. 995, 8 Nov. 1994, (1994) 33 I.L.M. 1602 [hereinafter ICTY].

4. Prosecutor v. Jelisic (ICTY–1–95–10). The ICTY has, however, considered aspects of genocide law in a number of important decisions under Rule 61, and in decisions confirming indictments.

5. The Prime Minister at the time of the genocide, Jean Kambanda, and the Deputy Head of the interahamwe, Georges Rutaganda, have already been convicted of genocide by the ICTR. No less than 14 ministers and high-ranking civil servants, together with many military commanders and militia leaders, are still awaiting trial. Some trials of prominent “genocidaires” have taken place in Rwanda; at the time of writing, the trial of the former Minister of Justice, Agnes Ntamabyaliro, accused of being one of the organisers of the genocide, has commenced in Kigali. On the Rwandan genocide, see African Rights, Death, Despair and Defiance (1995, 2nd ed.), and Human Rights Watch/Fédération Internationale des Ligues des Droits de I'Homme, Leave None to Tell the Story (1999).

6. Prosecutor v. Akayesu, Case No. ICTR–96–4–T, in part reported at (1998) 37 I.L.M. 1399.

7. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR–95–1–T, available on the ICTR web-site www.ictr.org.

8. The term “ethnical”, instead of ethnic, is used in the Genocide Convention, probably the result of a solecism that has featured in the legal definition of genocide since then.

9. It reads: “(1)… the phrase ‘intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’ appearing in Article 11 means the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in Article II. (2) That the term ‘mental harm’ in Article II (b) means permanent impairment of mental faculties through drugs, torture or similar techniques”.

10. Prosecutor v. Rutaganda, ICTR–96–3–T, at para.50: “The Chamber is of the opinion that ‘serious harm’ need not entail permanent or irremediable harm”. See also Prosecutor v. Musema, ICTR–96–13–1, at para.156.

11. This is particularly so since rape and sexual violence can constitute genocide cither as “killing of members of the group” (Art. II, a) in those cases where the woman is killed, or as a way of “causing serious bodily or mental harm to members of the group” (Art. II, b). While for all women rape and sexual violence arc undoubtedly traumatising experiences, which can result in a “permanent impairment of mental faculties”, under the US declaration, those women who have coped with the trauma of rape without developing a permanent menial impairment would never be considered victims of an act of genocide.

12. Art. 9 of the ICC Statute states that “elements of crime shall assist the Court in the interpretation and application of Articles 6, 7, and 8”, which deal respectively with genocide, crimes against humanity and war crimes.

13. GA Res. 96 (I). This formulation was very close to the one theorised by the French jurist Lemkin in the 1930s and 1940s (Axis Rule in Occupied Europe (1944)).

14. Chalk, supra n.2 at 50. The list could continue with the extermination of hundreds of thousands of Communist militants in Indonesia, and the political massacres in Maoist China.

15. Beres, René, “Genocide and Genocide-Like Crimes”, in S. Bassiouni, International Criminal Law, Vol. I, International Crimes, at 271.

16. , van Schaack, “The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot”, (1997) 106 The Yale Law Journal 22612262.

17. Kuper, supra n.2 at 36.

18. In particular, , Hannum remarked that in the case of the Cambodian genocide “the failure of any state thus far to institute proceedings before the Court is an indefensible abdication of international responsibility” (“International Law and Cambodian Genocide: The Sounds of Silence”, (1989) 11 Human Rights Quarterly 82 at 84).

19. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]) (Merits) [1996] ICJ. Rep. 595.

20. Legality of the Use of Force (Federal Republic of Yugoslavia v. Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom, United States) (Request for Interim Measures) [1999] 38 I.L.M. 950; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia) (Proceedings instituted on 2 July 1999) www.icj-cij.org.

21. The ICJ has emphasised that the obligations deriving from the Genocide Convention arc non-contractual and that the Convention is not characterised by competing interests but by a common interest, i.e. “the accomplishment of those high purposes which are the raison d'etre of this Convention”, based on moral and humanitarian principles (Reservations to the Convention on Genocide [1951] I.C.J. Rep. 15). See also the well-known dictum of the ICJ on the erga omnes nature of obligations outlawing genocide in the Barcelona Traction case (Barcelona Traction, Light and Power Co.Case (Belgium v. Spain) (Merits) [1970] I.C.J. Rep. 3, at paras33–34).

22. See, for example, Case Concerning the Vienna Convention on Consular Relations (Germany v. USA) (Order of 3 Mar. 1999), in which the Court adopted interim measures inaudita altera parte.

23. Sec, for example, Legality of the Use of Force (FRY v. UK), supra n.20, at para. 35, and Legality of the Use of Force (FRY v. France), supra n.20, at para.27. However, in its order in the Bosnia Genocide Application case, the ICJ had not reached a prima facie factual determination in the same terms with respect to the question whether the acts of Yugoslavia (Serbia and Montenegro) in Bosnia were characterised by intent to destroy a particular group. But, the Court acknowledged the existence of a grave risk that acts of genocide had been committed and emphasised that “Yugoslavia and Bosnia-Herzegovina, whether or not any such acts in the past may be legally imputable to them, are under a clear obligation to do all in their power to prevent the commission of any such acts in the future” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]) (Order) [1993] I.C.J. Rep. 3, para.45).

24. In the words of the ICTY in the Jelisic case, intent is the “élément moral de 1'infraction” (Prosecutor v. Jelisic, supra n.4, para.62).

25. In the Legality of the Use of Force cases, since it is the actions not of paramilitary groups but of States that are at stake, the ICJ will mainly have to determine whether the NATO bombings constituted a genocidal act. A problem of imputability could arise only with regard to those NATO countries that did not directly participate in the military campaign, but limited themselves to lending political support to it as members of the alliance.

26. Akayesu, supra n.6, at para.523.

27. Radovan Karadjic (Rule 61 Decision), IT–95–5–R61; Ratko Mladic (Rule 61 Decision), IT–95–18–R61.

28. Akayesu., supra n.6, at paras523–524.

29. Ibid., at para.728.

30. Ibid., at. para.126.

31. Ibid., at para.729. On the basis of this, Akayesu was also convicted of direct and public incitement to commit genocide (Ibid., at paras672–675).

32. See infra Section V Ethnic Cleansing and Sexual Violence as Acts of Genocide.

33. Kayishema and Ruzindana, supra n.7, at para.91.

34. Ibid., para.93.

35. Ibid., para.94.

36. Ibid., para.528.

37. Ibid., para.531. The Trial Chamber found that around 8,000 people were killed in an area in Kibuye town known as the Complex (the Catholic Church and Home St. Jean Complex); between 8,000 and 27,000 were killed in the Stadium; and 4 to 5,500 were massacred in Mubuga Church. In addition, in the area of Bisesero, in the same prefecture of Kibuye, other massacres took place and “evidence suggests that the number of those who perished was well into the tens of thousands” (Ibid., para.531).

38. There were numerous testimonies that reported hearing Kayishema refer to Tutsis as “filth or dirt”. In the Complex, the Chamber found out that he used a megaphone in the Complex to read out a message from Kigali encouraging the extermination of the Tutsis (Ibid., pan.539).

39. Ibid., para.541.

40. Ibid., para.544. Obed Ruzindana was sentenced to 25 years of imprisonment, a lenient penalty according to the Rwandan government that vehemently protested against it. The reasoning of the Chamber on the sentencing does, indeed, give rise to some doubts, particularly in the light of the horrific acts of which Ruzindana was found guilty. The Chamber found that Kayishema deserved more punishment than Ruzindana (Ibid., para.26), since the former had been found guilty of four counts of genocide while Ruzindana had been convicted of “only” one count. The Chamber stressed Ruzindanda's “relative young age and the goal of rehabilitation in his case” (he was 32 in 1994!). In a sense, having been tried together with Kayishema may have helped Ruzindana's case by making his actions look “less horrific” in comparison with those of Kayishema.

41. The other charged offences were violations of the laws and customs of war (Art. 3, Statute of the ICTY) and crimes against humanity (Art. 5, Statute of the ICTY). Throughout May 1992 Goran Jelisic acted as commander of Luka camp, where Serb forces confined large numbers of Croats and Muslims who had been for the most part expelled from their homes in the town of Brcko.

42. Jesilic, supra n.4, at para.75 (original text of the judgment is in French).

43. Ibid., at para.82.

44. Ibid., at para.101 (and 99–100).

45. In particular, he referred to himself as “Serb Adolf”, and reportedly said that he could not drink his coffee in the morning unless he had executed between 20 and 30 detainees. He informed detainees in Luka that the vast majority of them (70% according to one testimony, 90% according to another) would be killed. (Ibid., paras. 102–108).

46. Ibid., para.107.

47. The argument has been made that the definition of genocide under customary international law is actually broader than the one based on the Genocide Convention. See supra n.16. It is an argument that has not been echoed in the jurisprudence of the ad hoc Tribunals.

48. The colonial period was a time when Hutu, Tutsi and Twa identities went through a radical process of transformation, visions of Tutsi superiority were instilled and perceptions were racialised (Prunier, G., The Rwanda Crisis: History of a Genocide 1959–1994 2341 (1995)).

49. Rights of Minorities in Upper Silesia (Germany v. Poland), P.C.I J. Rep. Series A, No. 12; Nottebohm (Liechtenstein v. Guatemala) (Merits) [1955] l.C.J. Rep. 4.

50. Sophocles, Oedipus Rex at lines 800–809. Oedipus may have acted in self-defence because Laios apparently attacked him after he had hit the driver of the chariot.

51. Patrilineal descent normally determines identity in Rwanda. But “transitions” from one group to the other were common in pre-colonial Rwanda, especially from the Hutu group to the Tutsi one through the contract of ubuhake. Under this contract “a Tutsi patron gave a cow to his Hutu client. Since the Hutu were in theory not allowed to have cattle (…), it was not only an ‘economic’ gift, but also a form of upward social mobility. For the cow could reproduce, and the future calves would be shared (…)o This could be the beginning of an upward social climb where, once endowed with cattle, the Hutu lineage would become ‘tutsified’” (Prunier, supra n.48 at 13–14). See also Verdirame, “Ethnicity, Conflict and Constitutional Change in Rwanda and Burundi”, in Gardner and others (Eds), Creation and Amendment of Constitutional Norms (forthcoming in 2000). There were also cases of Tutsis who became Hutus. Two notable examples are Froudald Karamira and Robert Kajuga, who became leading Hutu extremists, the latter heading the interahamwe.

52. Minorities in Upper Silesia, supra n.49 at 5.

53. Ibid., at 10.

54. Ibid., at 32

55. Indeed, Art. 74 stated that “the question whether a person docs or does not belong to a racial, linguistic or religious minority may not be verified or disputed by the authorities”. The Court interpreted this provision, almost against its literal meaning, as aimed solely at “the avoidance of the disadvantages … which would arise from a verification or dispute”, and not as requiring “the substitution of a new principle for that which in the nature of things and according to the provisions of the Minorities Treaty determines membership” (Ibid., at 34) [emphasis added]. According to the Court, such provisions as those formulating the declaration of the person as “Which is the language of the pupil or child?” (“Quelle est la langue d'un éléve ou enfant?”) revealed that the Convention viewed membership of the minority as a question of fact.

56. Ibid., at 40–41.

57. Judge Nyholm's dissenting opinion took careful account of the socio-cultural context. In particular, he observed that in Upper Silesia “the working class ordinarily and in domestic life exclusively speaks” neither German nor Polish but a dialect which is often “the sole means of expression, to the exclusion of German and Polish, for children up to the time when the latter begin their school studies”. Judge Nyholm added that “a request for the entry of a child for a minority school cannot be, generally speaking, considered as having as its aim the denationalisation of a child in reality of Polish nationality. The aim may be different, for example, that the parent, realising that the child will automatically learn Polish, wishes for practical reasons to have him instructed in the German language …” (Ibid., at 63–64 [diss. op. of Judge M. Nyholm])

58. Nottebohm, supra n.49.

59. The question of belonging has arisen also in the context of cases on minority rights. For example, in a communication to the Human Rights Committee, Sandra Lovelace, born and registered as a Maliseet Indian, complained that the Canadian legislation that deprived her of her status as a Maliseet Indian for “marrying out” violated her rights under the International Covenant on Civil and Political Rights, in particular Arts. 2 and 26 (non-discrimination) and Art. 27 (rights of individuals belonging to minorities). The Committee found that a violation of Art. 27 had occurred, and did not deem it necessary to examine the issues that had been raised under other provisions in the Covenant. The reasoning of the Committee combined subjective and objective criteria. The Committee noted that “persons who are born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered as belonging to that minority within the meaning of the Covenant” (Communication No. 24/1977, Sandra Lovelace v. Canada, at paras. 14 and 17).

60. Akayesu, supra n.6, al para.511.

61. lbid., at para.513.

62. Ibid., at para.514.

63. Ibid., at para.515.

64. Ibid., at para.516.

65. Sec supra n.51.

66. Anderson, B.. Imagined Communities (1983).

67. Kayishema and Ruzindana, supra n.7, para.98. See also para.291: “There is ample evidence to find that the overwhelming majority of the victims of this tragedy were Tutsi civilians which leaves this Chamber satisfied that the targets of the massacres were ‘members of a group’, in this case an ethnic group”.

68. Kayishema and Ruzindanda, supra n.7, at para.578: “Considering the above and based on the facts the Trial Chamber finds that it will be improper to convict the accused persons for genocide as well as for crimes against humanity based on murder and extermination because the later two offences are subsumed fully by the counts of genocide as discussed in the Part of the Judgment entitled Cumulative Charges”. This decision on cumulative charges runs contrary to precedents both of the ICTR (Akayesu) and of the ICTY (Tadic and Delalic cases, referred to in the dissenting opinion of Judge Khan in Kayishema and Ruzindanda, at paras13 and 15).

69. For example at para.347 in regard to those killed at the Complex (supra n.37):“… the Trial Chamber finds that they were unarmed and predominantly Tutsi”.

70. Mr Ruzindanda has been sentenced to 25 years of imprisonment. If the second reading of the decision of the Chamber is correct, he could be subjected to another trial for murder of Hutus without violating the double jeopardy principle.

71. This was the case in Akayesu, and in Prosecutor v. Kambanda, ICTR 97–23–S, in part reported at (1998) 37 I.L.M. 1413.

72. Jelisic, supra n.4, at para.70.

73. Prosecutor v. Rutaganda, supra n.10, at para.55. In Prosecutor v. Musema, supra n.10, Trial Chamber I of the ICTR reiterated that “membership of a group is, in essence, a subjective rather than an objective concept”, but added that “a subjective definition alone is not sufficient to determine victim groups” and that the travaux preparatoires of the Convention suggest that “certain groups, such as political and economic groups, have been excluded from the protected groups because they arc considered to be ‘non stable’ or ‘mobile’ groups which one joins through individual, voluntary commitment” (paras.161– 162). The Chamber thus recommended the adoption of a case-by-case approach.

74. There was some support for the inclusion of “cultural genocide” before the adoption of the Convention (see , Shaw, “Genocide and International Law”, in Y. Dinstein, International Law at a Time of Perplexity (1989) at 809).

75. Art. II, (e), Genocide Convention.

76. SC Res. 827(1993).

77. Prosecutor v. Nikolic (Rule 61), Case IT–94–2–R61.

78. Prosecutor v. Karadjic (Rule 61), Case IT–95–5–R61; Prosecutor v. Mladic (Rule 61), Case IT 95–18–R61.

79. When an arrest warrant is not executed within a “reasonable time“, the judge who confirmed the original indictment invites the Prosecutor to report on any progress made, or lack thereof. Then, if the confirming judge finds that all necessary steps have been taken, s/he will order the Prosecutor to submit the case to a Trial Chamber where a rule 61 hearing will take place. This hearing is not a trial, and does not result in a verdict.

80. Prosecutor v. Akayesu, supra n.6, at para.731.

81. Ibid., at 731

82. Ibid., at 730. See also para.731: “The Chamber is satisfied that the ads of rape and sexual violence described above were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.”

83. Ibid., at paras401–448.

84. The ICTR has amended the indictment of the Rwandan Minister for Women and Family Affairs at the time of the genocide, Pauline Nyiaramasuhuko, to include six additional charges, “one of which accuses her of being responsible for rape ‘as part of a widespread and systematic attack against a civilian population on political, ethnic and racial grounds’ in Butare, central Rwanda” (Press Release of the ICTR, ICTR/INFO 9–2–196, 11 Aug. 1999). Pauline Nyiaramasuhuko was not the material author of the sexual violence, but, according to the accusations, she planned and ordered the systematic sexual violence of Tutsi women, together with her son, Chalome Ntahobali, himself in the custody of the Tribunal.

85. Prosecutor v. Akayesu, supra n.6, at paras687–688

86. Prosecutor v. Rutaganda, supra n.10, at paras49–53.

87. Art. 31, 3, Vienna Convention on the Law of Treaties 1969, on the basis of which subsequent practice and subsequent agreements between the parties have to be taken into account. In addition, most of the State parties to the Genocide Convention did not participate in the drafting process (sec Territorial Jurisdiction of the International Commission of the River Oder, PCIJ Rep. Series A, No. 23, in which the Permanent Court of International Justice did not consider the travaux preparatoires for interpreting a treaty to which some of the Stale parties had only acceded). Finally, the Tribunals are technically applying a provision in a resolution of the Security Council and not the Convention directly.

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