Encyclopedia of Genocide and Crimes Against Humanity - Vol 2

530 Pages·2005·50.93 MB·English

EGCAH.V2tpgs 9/21/04 12:55 PM Page 1
encyclopedia of
GENOCIDE and CRIMES AGAINST HUMANITY
e d i t o r i a l b o a rd
Editor in Chief Dinah L. Shelton
George Washington University Law
School
Associate Howard Adelman
Editors Princeton University
Woodrow Wilson School
York University, Canada
Frank Chalk
Department of History, Concordia
University, Montreal, Canada
Montreal Institute for Genocide and
Human Rights Studies
Alexandre Kiss
French National Centre for Scientific
Research
William A. Schabas
Irish Centre for Human Rights, National
University of Ireland, Galway
EGCAH.V2tpgs 9/21/04 12:55 PM Page 3
encyclopedia of
GENOCIDE and CRIMES AGAINST HUMANITY
Dinah L. Shelton
[EDITOR IN CHIEF]
2
[I–S]
Encyclopedia of Genocide and Crimes Against Humanity
Dinah L. Shelton
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Encyclopedia of genocide and crimes against humanity
Dinah L. Shelton, editor in chief.
p. cm.
Includes bibliographical references and index.
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ISBN 0-02-865848-5 (v. 1 : alk. paper)—ISBN 0-02-865849-3
(v. 2 : alk. paper)—ISBN 0-02-865850-7 (v. 3 : alk. paper)—
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Encyclopedias. I. Shelton, Dinah.
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I
Identification has provided a philosophical basis for human rights
law, consider an individual’s assimilation into a society
The defining feature of the crime of genocide is the de- a step toward the realization of individual human dig-
liberate destruction of a group. That the term genocide nity. Human beings group together because of shared
denotes group destruction is evident in the term itself: ideas and interests, and to work for common goals. The
Sensing that no word captured the horror of Nazi atroc- intentional destruction of a group—the essence of
ities, Polish attorney Raphael Lemkin coined the term genocide—warrants the most severe condemnation for
from the ancient Greek genos (meaning race, nation, or the very reason that it thwarts these ends.
tribe) and the Latin suffix cide (meaning “killing”)
(1947, p. 147). Article II of the 1948 United Nations Some have argued that all, or perhaps many,
(UN) Convention on the Prevention and Punishment human collectivities should be counted as among those
of the Crime of Genocide (hereinafter referred to as the groups protected by bans on genocide. The drafters of
1948 UN Genocide Convention) thus describes geno- the 1948 UN Genocide Convention thought otherwise,
cide as the commission of a specified act or acts “with extending protection only to national, ethnical, racial,
intent to destroy, in whole or in part, a national, ethni- and religious groups, and thus excluding other groups,
cal, racial, or religious group, as such.” Murder moti- such as political, cultural, or social groups.
vated by hatred of one person, as opposed to hatred of
Group membership implies a common identity,
the group of which the person is a member, does not
shared attributes, and a sharing of ideas or beliefs with
comport with this definition. Nor does the deliberate
others. Group members may be linked by a single com-
starvation of others, unless the perpetrator deprives
monality, such as an affinity for jazz piano, or a passion
victims of food for the purpose of eradicating the group
for the local football team. Groups susceptible to the
to which the victims belong. There is no doubt that an
possibility of genocidal aggression and protected by the
action perpetrated against an individual can be crimi-
ban on genocide typically share unique complexes of
nal—in some cases, a crime against humanity. But such
traits. Identification denotes the process by which one
an action could not be genocide, the offense often
of these complexes of shared attributes—this identi-
called “the crime of crimes.”
ty—is recognized. Group nonmembers, as well as
The designation of genocide as the supreme crime members, participate in this process of creating group
recognizes the importance of human grouping. Much identity. With regard to genocide, the phenomenon of
of human rights law focuses on the autonomy, security, identification provokes two lines of inquiry: Is it the
and development of the individual; accordingly, many victim or the perpetrator of genocide who identifies the
human rights norms are intended to protect the indi- victim as belonging to a group? Does the subjective un-
vidual against mistreatment at the hands of those in po- derstanding of either, or both, suffice to establish group
sitions of power. Yet even classical liberals, whose work membership? Ad hoc international tribunals estab-
encyclopedia of GENOCIDE and CRIMES AGAINST HUMANITY [483]
Identification
lished in the 1990s, set up to investigate violations of guilty mind) that one must possess before one’s crime
international criminal law, expressed ambivalence with qualifies as genocide. The text of the definition could
regard to these questions. be construed to mean that all that matters is the state
of mind of the perpetrator; that is, that the element of
In what was the first international judgment of
the group is met as long as the perpetrator subjectively
conviction for the crime of genocide, the International
identified the victim as belonging to a group.
Criminal Tribunal for Rwanda (ICTR) placed emphasis
not on subjective perceptions but on objective factors. Wholly subjective determinations of group status
It thus interpreted the UN proscription against geno- could lead to absurd results, however. Surely there is
cide to be applicable only to “‘stable’ groups, constitut- a risk of overinclusion. Imagine a serial killer who, aim-
ed in a permanent fashion,” and to groups whose mem- ing to bring an end to the wearing of earrings, chose
bers belong to those groups “automatically, by birth, in victims solely on the basis of whether they wore ear-
a continuous and irremediable manner” (Prosecutor v. rings. Earring-wearing could then be viewed as the
Akayesu, para. 511). This stable-and-permanent-group shared attribute according to which the perpetrator
formula, as it came to be known, drew criticism. Many subjectively grouped persons. To identify as composing
social scientists as well as biologists have in recent dec- a group persons who have never grouped themselves—
ades rejected claims that race is fixed and biologically who have never engaged in any of the joint human en-
determined; to the contrary, they have concluded that deavors that the ban on genocide is supposed to
attributions of “race” derive from “social myth,” shield—could result in a finding that genocide was
formed in no small part by subjective perceptions “committed against a group that does not have any real
(UNESCO Statement, 1950, p. 15). By the mid-1990s objective existence” (Schabas, 2000, p. 110). Converse-
Professor Thomas K. Franck had posited a right of indi- ly, there is also a risk of underinclusion. Imagine a de-
viduals “to compose their own identity by constructing fendant who professed to be unaware of victims’ group
the complex of loyalty references that best manifest who membership, who maintained that any such member-
they want to be” (Franck, 1996, p. 383). Assignment of ship was coincidental to any violence that might have
group status based on a search for constant and un- occurred. If all that mattered were the perpetrator’s
changing attributes clearly would run counter to this state of mind, this kind of testimony alone might lead
latter view of group identification as a dynamic process to acquittal, even in the face of objective evidence that
of social construction. The Rwanda tribunal’s second victims belonged to an identifiable and protected
decision thus underscored the subjective aspects of group. Decision on whether a defendant possessed the
identity and group membership; in attempting to refine requisite malevolent intent, therefore, must entail an
its concept of what constitutes a group, it wrote of “a examination of more than just the defendant’s own per-
group which distinguishes itself, as such (self- ceptions.
identification); or, a group identified as such by others,
Evidence that relates to the subjective understand-
including perpetrators of the crimes (identification by
ings of persons who identify with a group is thus key
others)” (Prosecutor v. Kayishema, para. 98). This new
to the resolution of a victim’s group status. As in the
emphasis won praise as “a welcome shift that takes into
case of the perpetrator’s perceptions, however, this cri-
account the mutable and contingent nature of social
terion of victim perception ought not to provide the ex-
perceptions, and does not reinforce perilous claims to
clusive basis for identification. During the first fifty
authenticity in the field of ethnic and racial identities”
years that followed World War II, in the absence of any
(Verdirame, 2000, p. 594).
treaty that defined crimes against humanity, groups
The 1948 UN Genocide Convention’s definition of that had been the objects of certain kinds of violence
genocide, it would seem, rested only on the perpetra- endeavored to have their sufferings recognized as the
tor’s subjective perception. The UN proscription aftereffects of genocide; even into the twenty-first cen-
against genocide arose of a desire not just to punish tury, conventional wisdom reserves its harshest con-
those who succeeded in destroying groups, but more demnation for persons labeled génocidaires. But a desire
fundamentally to prevent such destruction from occur- to establish that victims belonged to a group protected
ring in the future. The convention thus prohibits acts by bans on genocide, and thus that their sufferings con-
executed with the intent to destroy, and permits con- stituted a byproduct of genocide, could distort testimo-
viction even if those acts failed to wreak permanent ny regarding commonalities. In contrast with this risk
harm on a group. The definition speaks of a group not of overinclusion, there is, again, a risk of underinclu-
as an independent and objectively demonstrable ele- sion. Victims unaware that they were targeted because
ment, but rather of one’s subjective belief in the exis- the perpetrator believed that they belonged to a
tence of a group as a component of the mens rea (the group—victims who may not, in fact, have belonged to
[484] encyclopedia of GENOCIDE and CRIMES AGAINST HUMANITY
Immunity
any such group—would be unable to establish that Criminal Tribunal for Rwanda. Available from http://
they suffered harm on account of the perpetrator’s www.ictr.org.
group loathing. Prosecutor v. Krstic. Case No. IT-98-33 (August 2, 2001).
Early tribunal judgments were not oblivious to Trial Chamber I, Judgment, International Criminal
Tribunal for the Former Yugoslavia. Available from
these concerns; even those that emphasized one type
http://www.un.org/icty.
of evidence gave at least passing attention to other
Schabas, William A. (2000). Genocide in International Law:
types. Group status in the twenty-first century is deter-
The Crime of Crimes. Cambridge: Cambridge University
mined by the comprehensive examination of a particu-
Press.
lar context. Considerable weight is placed on subjective
“UNESCO Statement by Experts on Race Problems” (July
perceptions. The defendant’s understanding, mani-
18, 1950). In Statement on Race, ed. Ashley Montagu.
fested both by the defendant’s testimony at trial and by
New York: Henry Schuman, 1951.
things the defendant has written or told others, receives
United Nations (December 9, 1948). Convention on the
careful scrutiny. Also receiving careful scrutiny is testi-
Prevention and Punishment of the Crime of Genocide.
mony that victims saw themselves as belonging to a
Entered into force January 12, 1951; 78 U.N.T.S.277.
group, or that other group members claimed a victim
Verdirame, Guglielmo (2000). “The Genocide Definition in
as one of their own. Contextual inquiry likewise looks
the Jurisprudence of the Ad Hoc Tribunals.”
to objective indicators. The Rwanda tribunal, for exam- International and Comparative Law Quarterly
ple, recognized Tutsi as a group, in no small part be- 49:578–598.
cause of the evidence adduced regarding identity cards Diane Marie Amann
that the Rwandan government had issued, cards that
perpetrators used to confirm cardholders’ ethnicity, as Immunity
a means to select whom to victimize (Prosecutor v.
Akayesu, paras. 83, 122–123, 170, 702; Prosecutor v. As a general rule of international law, states, some
Kayishema, paras. 523–526). Similarly, the Internation- holders of high-ranking office in a state (such as heads
al Criminal Tribunal for the Former Yugoslavia, even of state or heads of government), and diplomatic and
as it refused to look for “scientifically irreproachable consular agents enjoy immunity from civil suits and
criteria,” found objective evidence of victims’ group criminal prosecutions inaugurated in other states (but
status in the Yugoslav Constitution’s description of not those inaugurated in international courts and tribu-
Bosnian Muslims as a “nation” (Prosecutor v. Krstic, nals). Many treaties, such as the Vienna Convention on
paras. 70, 559). Both tribunals relied on expert sociohi- Diplomatic Relations (April 18, 1961), the Vienna Con-
storical testimony to bolster their conclusions. In short, vention on Consular Relations (April 24, 1963), and
a combination of case-specific factors—subjective and the New York Convention on Special Missions (Decem-
objective evidence, evidence of self-identification and ber 8, 1969), guarantee this immunity. Immunities are
of other-identification—is relevant to resolution of meant to allow states and their representatives to en-
whether a victim was identified as belonging to a group gage in international relations as equal and indepen-
protected against genocide. dent entities. Thus, no state can be subject to legal pro-
ceedings in another state, as it would imply statuses of
SEE ALSO Ethnic Groups; Racial Groups; Religious inferiority and superiority, or the subordination of one
Groups state to another.
A distinction is generally made between functional
BIBLIOGRAPHY
and personal immunities. Functional immunities cover
Amann, Diane Marie (2002). “Group Mentality,
the activities of any state official carried out in his offi-
Expressivism, and Genocide.” International Criminal
cial capacity—such as issuing passports or negotiating
Law Review 2:93–143.
treaties. These activities are attributable to the state,
Franck, Thomas M. (1996). “Clan and Superclan: Loyalty,
Identity and Community in Law and Practice.” American and the individual cannot be held accountable for
Journal of International Law 90:359–383. them, even after he leaves office. Personal immunities
Lemkin, Raphael (1947). “Genocide as a Crime under attach to the particular status of the holder of these im-
International Law.” American Journal of International munities, such as the head of a diplomatic mission.
Law 41:145–151. They cover all activities carried out by the holder, but
Prosecutor v. Akayesu. Case No. ICTR-96-4 (September 2, cease to apply when that particular status is concluded
1998). Trial Chamber I, Judgment, International
(with the exception, obviously, of activities covered by
Criminal Tribunal for Rwanda. Available from http://
functional immunities).
www.ictr.org.
Prosecutor v. Kayishema. Case No. ICTR-95-1-T (May 21, Recent developments, in particular the establish-
1999). Trial Chamber II, Judgment, International ment of international criminal tribunals and their statu-
encyclopedia of GENOCIDE and CRIMES AGAINST HUMANITY [485]
Immunity
tory provisions on immunities, as well as the occur- International Courts
rence of national proceedings against incumbent or The statutes of the Nuremberg and the Tokyo tribunals
former dignitaries, have raised questions about the that were created in the aftermath of World War II both
scope of these traditional immunities. In particular, the contained provisions stating that official immunities
applicability of the principle of immunity in the case of could not bar prosecution for genocide-related and
genocide, crimes against humanity, or war crimes has other crimes in international courts. In its Principles of
been seriously questioned. Some questions have been International Law Recognized in the Charter of the Nu-
answered, other have not. remberg Tribunal and in the Judgment of the Tribunal
(the so-called “Nuremberg Principles” of 1950), the
Genocide and Crimes Against Humanity ILC stated: “The fact that a person who committed an
Article IV of the United Nations (UN) Convention on act which constitutes a crime under international law
the Prevention and Punishment of the Crime of Geno- acted as Head of State or responsible Government offi-
cide (1948) states: “Persons committing genocide . . . cial does not relieve him from responsibility under in-
shall be punished, whether they are constitutionally re- ternational law” (Principle III). The statutes of the In-
sponsible rulers, public officials, or private individu- ternational Criminal Tribunal for the former
als.” Article 7 of the International Law Commission’s Yugoslavia (1993), the International Criminal Tribunal
(ILC’s) Draft Code of Crimes Against the Peace and Se- for Rwanda (1994), as well as the Special Court for Si-
curity of Mankind (1996) states: “The official position erra Leone (2000), contain similar provisions.
of an individual who commits a crime against the peace
The wording in Article 27 of the Rome Statute of
and security of mankind, even if he acted as head of
the International Criminal Court (ICC, 1998) is even
State or Government, does not relieve him of criminal
more precise (in rejecting the principle of selective im-
responsibility or mitigate punishment.” These and
munity), as it clearly distinguishes between criminal re-
other authoritative sources clearly indicate that indi-
sponsibility and immunities, and covers both function-
viduals committing crimes against humanity or acts of
al and personal immunities:
genocide are individually responsible for them. Even
heads of State, when they commit, authorize, attempt, 1. This Statute shall apply equally to all persons
incite, or conspire to commit acts of genocide or crimes without any distinction based on official capaci-
ty. In particular, official capacity as a Head of
against humanity, are personally liable for their actions,
State or Government, a member of a Government
their official positions notwithstanding.
or parliament, [or] an elected representative or
But immunity from prosecution is distinct from a government official shall in no case exempt a
legal obligation to obey the law, and legal responsibility person from criminal responsibility under this
and immunity are not necessarily irreconcilable. The Statute, nor shall it, in and of itself, constitute a
first question therefore is whether a temporary, proce- ground for reduction of sentence. 2. Immunities
dural bar of immunity applies in the case of interna- or special procedure rules which may attach to
tional crimes. In its commentary on the abovemen- the official capacity of a person, whether under
national or international law, shall not bar the
tioned Draft Code, the ILC stated that Article 7 also
Court from exercising its jurisdiction over such
aims to prevent an individual from invoking an official
a person.
position as a circumstance conferring immunity on
him, even if that individual claims that the acts consti- One may conclude that there is a lex specialis,
tuting the crime were performed in the exercise of his under customary international law, to the effect that,
functions. when charged with the offense of genocide, crimes
against humanity, or war crimes by an international ju-
Second, even if, in principle, the responsibility of
risdiction, no state official is entitled to functional or
dignitaries is accepted, it must be determined which ju-
personal immunities.
risdiction or jurisdictions can prosecute a state or its
representative. A judgment of the International Court For states parties to the ICC statute—as of early
of Justice (ICJ) of February 14, 2002 (pertaining to 2004, ninety-two states have ratified or acceded to this
Democratic Republic of the Congo (DRC) v. Belgium, statute—Article 27 also has an important effect on na-
whereby the DRC launched proceedings against Bel- tional immunities law, even that which is established
gium for issuing an arrest warrant against the DRC’s by constitutional law. Read in conjunction with Article
acting minister for foreign affairs, Abdoulaye Yerodia 88 (specifically, that “States Parties shall ensure that
Ndombasi (Mr. Yerodia), for alleged crimes constitut- there are procedures available under their national law
ing violations of international humanitarian law), dis- for all of the forms of cooperation which are specified
tinguishes between international courts and the nation- under this Part”), Article 27 imposes an obligation on
al jurisdictions of other states. the states parties to amend national legislation, even
[486] encyclopedia of GENOCIDE and CRIMES AGAINST HUMANITY
Immunity
constitutionally protected immunities of the head of
state, in order to be in a position to comply with ICC
orders for arrest or surrender.
In its judgment of February 14, 2002 (Democratic
Republic of the Congo v. Belgium), the ICJ confirmed the
annulment of some immunities before international
courts. The court specifically mentions “criminal pro-
ceedings before certain international criminal courts,
where they have jurisdiction” as one of the circum-
stances in which the immunity enjoyed under interna-
tional law by an incumbent or former minister of for-
eign affairs does not represent a bar to criminal
prosecution.
National Jurisdictions
One reading of the ICC statute, favored by Amnesty In-
ternational and other members of the international co-
alition of nongovernmental organizations (NGOs)
committed to achieving full support for the ICC, holds
that the rejection of official immunities with respect to
acts of genocide, crimes against humanity, and war
crimes applies also to proceedings before national juris-
Former Chilean dictator Augusto Pinochet under house arrest in
dictions. This is considered to be a consequence of the
London, January 16, 1999. National proceedings against
principle of complementarity that is laid down in the Pinochet were cited as evidence of the emergence of a new rule
ICC statute (in essence, that the primary role for prose- of international law denying individuals immunity for certain
cuting these international crimes remains at the nation- crimes. [AP/WIDE WORLD PHOTOS]
al level), and of the absence of a separate provision in
the statute on immunity before national courts.
expressed the opinion that if Pinochet had still been
holding office at the time of his arrest, he would have
National proceedings against former Chilean Presi-
been entitled to personal immunities and thus protect-
dent Augustus Pinochet have also been cited as evi-
dence of the emergence of a new rule of international ed against arrest and extradition proceedings.
law denying immunity. Pinochet was arrested in Lon-
In the abovementioned Democratic Republic of the
don, on the basis of two arrest warrants issued by U.K.
Congo v. Belgium (February 14, 2002), the ICJ ruled, in
magistrates at the request of Spanish courts for Pino-
a thirteen-to-three vote, that the issuance and circula-
chet’s alleged responsibility for the murder of Spanish
tion of the arrest warrant by the Belgian investigating
citizens in Chile, and for conspiracy to commit acts of
judge against the minister of foreign affairs of the DRC
torture, the taking of hostages, and murder. The alleged
violated international law. The court found that, after
crimes were committed while Pinochet held office in
a careful examination of state practice, it had been un-
Chile as head of state. In its judgment of March 24,
able to find “any form of exception to the rule accord-
1999, the English House of Lords, which is in effect the
ing immunity from criminal jurisdiction and inviolabil-
country’s Supreme Court, held that Pinochet was not
ity to incumbent ministers for foreign affairs, where
entitled to immunity for acts of torture and conspiracy
to commit torture, insofar as these acts were committed they are suspected of having committed war crimes or
after the United Kingdom’s ratification of the UN Con- crimes against humanity.” The court also noted that
vention Against Torture and Other Cruel, Inhuman or immunities could be invoked in national courts of a
Degrading Treatment or Punishment (1984). As a re- foreign state, even when those courts exercise jurisdic-
sult, extradition proceedings were allowed to continue. tion under treaties that deal with the prevention and
The judgment was welcomed by the international punishment of certain serious international crimes.
human rights movement as a great step in the interna- The court added that although jurisdictional immunity
tional fight against impunity. However, the precedent may bar prosecution for a certain period of time, it does
value of this judgment is subject to various interpreta- not exonerate the person to whom it applies from crim-
tions. The judgment did not cover the issue of personal inal responsibility. Emphasizing that immunity does
immunities of incumbent heads of state. Some judges not amount to impunity, the ICJ identified four circum-
encyclopedia of GENOCIDE and CRIMES AGAINST HUMANITY [487]