Genocide and Human Rights

596 Pages·2017·13.795 MB·English

by  Mark Lattimer (editor)

Genocide and Human Rights
The International Library of Essays on Rights
Series Editor: Tom Campbell
Titles in the Series:
Disability Rights Genocide and Human Rights
Peter Blanck Mark Lattimer
Indigenous Rights Animal Rights
Anthony Connolly Clare Palmer
Civil Rights and Security Social Rights
David Dyzenhaus Lord Raymond Plant and Selina Chen
Children’s Rights, Volumes I and II Gender and Rights
Michael D.A. Freeman Deborah L. Rhode and Carol Sanger
Language and Cultural Rights Rights of Peoples
Leslie Green Gerry Simpson and Catriona Drew
Consumer Rights Theories of Rights
Geraint Howells and Iain Ramsay C.L. Ten
Group Rights Bills of Rights
Peter Jones Mark Tushnet
Human Rights and Corporations
David Kinley
Genocide and Human Rights
Edited by
Mark Lattimer
Executive Director, Minority Rights Group International
Ö Routledge
Taylor & Francis Group
LONDON AND NEW YORK
First published 2007 by Ashgate Publishing
Reissued 2018 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an informa business
© Mark Lattimer 2007. For copyright of individual articles please refer to the Acknowledgements.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by
any electronic, mechanical, or other means, now known or hereafter invented, including photocopying
and recording, or in any information storage or retrieval system, without permission in writing from the
publishers.
A Library of Congress record exists under LC control number: 2006048430
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.
Publisher’s Note
The publisher has gone to great lengths to ensure the quality of this reprint but points out that
some imperfections in the original copies may be apparent.
Disclaimer
The publisher has made every effort to trace copyright holders and welcomes correspondence
from those they have been unable to contact.
ISBN 13: 978-0-815-38919-4 (hbk)
ISBN 13: 978-1-351-15756-8 (ebk)
Contents
Acknowledgements vii
Series Preface ix
Introduction xi
PART I DEFINITIONS AND LEGISLATION
1 Raphael Lemkin (1947), ‘Genocide as a Crime Under International Law’,
American Journal of International Law, 41, pp. 145-51. 3
2 Matthew Lippman (1998), ‘The Convention on the Prevention and Punishment of
the Crime of Genocide: Fifty Years Later’, Arizona Journal of International and
Comparative Law, 15, pp. 415-514. 11
3 Guglielmo Verdirame (2000), ‘The Genocide Definition in the Jurisprudence of
the Ad Hoc Tribunals5, International and Comparative Law Quarterly, 49,
pp. 578-98. Ill
4 Catherine A. MacKinnon (1994), ‘Rape, Genocide, and Women’s Human
Rights’, Harvard Women ,s Law Journal, 17, pp. 5-16. 133
5 Beth Van Schaack (1997), ‘The Crime of Political Genocide: Repairing the
Genocide Convention’s Blind Spot’, Yale Law Journal, 106, pp. 2259-91. 145
PART II UNDERSTANDING GENOCIDE AND MASS VIOLATIONS OF RIGHTS
6 Helen Fein (1978), ‘A Formula for Genocide: Comparison of the Turkish
Genocide (1915) and the German Holocaust (1939—45)’, Comparative Studies in
Sociology, 1, pp. 271-94. 181
7 Benjamin Madley (2004), ‘Patterns of Frontier Genocide 1803-1910: The
Aboriginal Tasmanians, the Yuki of California, and the Herero of Namibia’,
Journal of Genocide Research, 6, pp. 167-92. 205
8 William A. Schabas (2000), ‘Hate Speech in Rwanda: The Road to Genocide’,
McGill Law Journal, 46, pp. 141-71. 231
9 Ervin Staub (1993), ‘The Psychology of Bystanders, Perpetrators, and Heroic
Helpers’, International Journal of Inter cultural Relations, 17, pp. 315—41. 263
10 Michael Mann (2000), ‘Were the Perpetrators of Genocide “Ordinary Men”
or “Real Nazis”? Results from Fifteen Hundred Biographies’, Holocaust and
Genocide Studies, 14, pp. 331-66. 291
vi Genocide and Human Rights
PART III PREVENTING GENOCIDE
11 Barbara Harff (2003), ‘No Lessons Learned from the Holocaust? Assessing Risks
of Genocide and Political Mass Murder Since 1955’, American Political Science
Review, 97, pp. 57-73. 329
12 Louis René Beres (1988), ‘Justice and Realpolitik: International Law and the
Prevention of Genocide5, American Journal of Jurisprudence, 33, pp. 123-59. 347
13 Jack Donnelly (2002), ‘Genocide and Humanitarian Intervention’, Journal of
Human Rights, 1, pp. 93-109. 385
14 Jonathan I. Chamey (1999), ‘Anticipatory Humanitarian Intervention in Kosovo’,
Vanderbilt Journal of Transnational Law, 32, pp. 1231—48. 403
15 W. Michael Reisman (1996), ‘Legal Responses to Genocide and Other Massive
Violations of Human Rights’, Law and Contemporary Problems, 59, pp. 75-80. 421
PART IV PUNISHMENT AND RECONCILIATION
16 Juan E. Méndez (1997), ‘Accountability for Past Abuses’, Human Rights
Quarterly, 19, pp. 255-82. 429
17 Stanley Cohen (1995), ‘State Crimes of Previous Regimes: Knowledge,
Accountability, and Policing of the Past’, Law and Social Inquiry, 20, pp. 7-50. 457
18 David Wippman (2000), ‘Atrocities, Deterrence, and the Limits of International
Justice’, Fordham International Law Journal, 23, pp. 473-88. 501
19 Israel W. Chamy (2003), ‘A Classification of Denials of the Holocaust and other
Genocides’, Journal of Genocide Research, 5, pp. 11-34. 517
20 John Bomeman (2002), ‘Reconciliation after Ethnic Cleansing: Listening,
Retribution, Affiliation’, Public Culture, 14, pp. 281-304. 541
Name Index 565
Acknowledgements
The editor wishes to thank Hanna Nilsson Sahlin and Marusca Perazzi, who undertook much
of the primary research for this book.
The editor and publishers would also wish to thank the following for permission to use
copyright material.
Blackwell Publishing for the essay: Stanley Cohen (1995), ‘State Crimes of Previous Regimes:
Knowledge, Accountability, and Policing of the Past’, Law and Social Inquiry, 20, pp. 7-50.
Copyright © 1995 American Bar Foundation.
British Institute of International and Comparative Law for the essay: Guglielmo Verdirame
(2000), ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’, International
and Comparative Law Quarterly, 49, pp. 578-98.
Copyright Clearance Center for the essays: Raphael Lemkin (1947), ‘Genocide as a Crime
Under International Law’, American Journal of International Law, 41, pp. 145-51; W.
Michael Reisman (1996), ‘Legal Responses to Genocide and Other Massive Violations of
Human Rights’, Law and Contemporary Problems, 59, pp. 75-80. Copyright © 1997 Law
and Contemporary Problems.
Duke University Press for the essay: John Bomeman (2002), ‘Reconciliation after Ethnic
Cleansing: Listening, Retribution, Affiliation’, Public Culture, 14, pp. 281-304. Copyright ©
Duke University Press.
Elsevier for the essays: Helen Fein (1978), ‘A Formula for Genocide: Comparison of the
Turkish Genocide (1915) and the German Holocaust (1939-45)’, Comparative Studies in
Sociology, 1, pp. 271-94. Copyright© 1978 Helen Fein; Ervin Staub (1993), ‘The Psychology
of Bystanders, Perpetrators, and Heroic Helpers’, International Journal of Inter cultural
Relations, 17, pp. 315^1.
Fordham International Law Journal for the essay: David Wippman (2000), ‘Atrocities,
Deterrence, and the Limits of International Justice’, Fordham International Law Journal, 23,
pp. 473-88.
Harvard Journal of Law and Gender for the essay: Catherine A. MacKinnon (1994), ‘Rape,
Genocide, and Women’s Human Rights’, Harvard Womens’ Law Journal, 17, pp. 5-16.
Copyright © 1994 Catherine A. MacKinnon.
Johns Hopkins University Press for the essay: Juan E. Méndez (1997), ‘Accountability for
Past Abuses’, Human Rights Quarterly, 19, pp. 255-82. Copyright © 1997 Johns Hopkins
University Press.
viii Genocide and Human Rights
McGill Law Journal for the essay: William A. Schabas (2000), ‘Hate Speech in Rwanda: The
Road to Genocide’, McGill Law Journal, 46, pp. 141-71. Copyright © 2000 McGill Law
Journal.
Notre Dame Law School for the essay: Louis René Beres (1988), ‘Justice and Realpolitik:
International Law and the Prevention of Genocide’, American Journal of Jurisprudence, 33,
pp. 123-59.
Oxford University Press for the essay: Michael Mann (2000), ‘Were the Perpetrators of
Genocide “Ordinary Men” or “Real Nazis”? Results from Fifteen Hundred Biographies’,
Holocaust and Genocide Studies, 14, pp. 331-66.
Vanderbilt Law School for the essay: Jonathan I. Chamey (1999), ‘Anticipatory Humanitarian
Intervention in Kosovo’, Vanderbilt Journal of Transnational Law, 32, pp. 1231—48.
Yale Law Journal and William S. Hein Company for the essay: Beth Van Schaack (1997),
‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’, Yale
Law Journal, 106, pp. 2259-91.
Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity.
Series Preface
Much of contemporary moral, political and legal discourse is conducted in terms of rights and
increasingly in terms of human rights. Yet there is considerable disagreement about the nature
of rights, their foundations and their practical implications and more concrete controversies as
to the content, scope and force and particular rights. Consequently the discourse of rights calls
for extensive analysis in its general meaning and significance, particularly in relation to the
nature, location of content of the duties and responsibilities that correlate with rights. Equally
important is the determination of the forms of argument that are appropriate to establish
whether or not someone or some group has or has not a particular right, and what that might
entail in practice.
This series brings together essays that exhibit careful analysis of the concept of rights
and detailed knowledge of specific rights and the variety of systems of rights articulation,
interpretation, protection and enforcement. Volumes deal with general philosophical and
practical issues about different sorts of rights, taking account of international human rights,
regional rights conventions and regimes, and domestic bills of rights, as well as the moral and
political literature concerning the articulation and implementation of rights.
The volumes are intended to assist those engaged in scholarly research by making available
the most important and enduring essays on particular topics. Essays are reproduced in full
with the original pagination for ease of reference and citation.
The editors are selected for their eminence in the study of law, politics and philosophy.
Each volume represents the editor’s selection of the most seminal recent essays in English
on an aspect of rights or on rights in a particular field. An introduction presents an overview
of the issues in that particular area of rights together with comments on the background and
significance of the selected essays.
TOM CAMPBELL
Series Editor
Professorial Fellow, The Centre for Applied Philosophy and Public Ethics (CAPPE),
Charles Sturt University, Canberra