International Crimes Law and Practice Volume I: Genocide

650 Pages·2019·9.244 MB·English

by  Guenael Mettraux

Dedication
From: International Crimes: Law and Practice: Volume I: Genocide
Guénaël Mettraux
Content type:Book content
Product:Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:13 June 2019
ISBN:9780198843115
(p. v) À toi, Nino, pour faire avancer ce que tu as commencé. Et à toi, John, qui croyais tant
à la justice.(p. vi)
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Foreword
William A Schabas
From: International Crimes: Law and Practice: Volume I: Genocide
Guénaël Mettraux
Content type:Book content
Product:Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:13 June 2019
ISBN:9780198843115
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted
by the United Nations General Assembly on 9 December 1948. In the compendium of
Multilateral Treaties Deposited with the Secretary General of the United Nations, it is
classified under ‘Human Rights’ rather than under ‘Penal Matters’, which is where the
Rome Statute of the International Criminal Court is to be found. The Convention was
negotiated in the Sixth Committee of the General Assembly and not in the Third Committee,
which would normally have been the place for a human rights treaty. Indeed, while the
negotiations of the Genocide Convention were underway in the Sixth Committee, the Third
Committee was occupied with the text of the Universal Declaration of Human Rights. There
was even some interaction. For example, many members of the Sixth Committee thought
that acts of ‘cultural genocide’ involving persecution of national minorities were better
dealt with in the Universal Declaration. The two documents were adopted by the Plenary
General Assembly within a day of each other.
Today, the Genocide Convention is thought of as an international criminal law treaty.
Although it is the first on the Secretary-General’s list of human rights treaties, when
reference is made to the major United Nations treaties in the area of human rights the
Genocide Convention is rarely mentioned. Its profile within the corpus of human rights
deserves to be enhanced. In particular, there are great affinities with the International
Convention on the Elimination of All Forms of Racial Discrimination.
The original vision of the condemnation of genocide, credited to Raphael Lemkin in his
book, Axis Rule in Occupied Europe, was of a concept that destined to fill a gap in the
international legal protection of minorities. Lemkin traced the origin of the concept to the
crime of ‘denationalization’, one of the thirty-two violations of the laws and customs of war
listed in the report of the 1919 Commission on Responsibilities. However, he was rather
dismissive of the Hague Conventions of 1899 and 1907, saying they dealt with ‘the
sovereignty of a state’ but were ‘silent regarding the preservation of the integrity of a
people’. Lemkin acknowledged that since the pre-First World War era of codification there
had been an ‘evolution of international law’. He pointed to the minorities treaty regime
developed at the Paris Peace Conference in such instruments as the Treaty of Versailles and
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the so-called Little Versailles treaty that affirmed Polish independence. Lemkin understood
genocide as a development of this body of law where the focus was placed upon national
minorities. He proposed that the crime of genocide be developed in order to address
various forms of persecution of national minorities. It was a vision that is closer in many
respects to the modern-day definition of crimes against humanity found in Article 7 of the
Rome Statute of the International Criminal Court than it is to that of genocide as defined in
the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
(p. viii) It is important to fix Lemkin’s personal role in the development of the crime of
genocide properly. Many historians and sociologists tend to exaggerate the importance of
his influence, as if he was the author of a doctrine whose personal vision colours all
subsequent interpretation. They may not fully appreciate the autonomy of the making of
international law, where competing views are reconciled in ways that do not reflect the
perspectives of those who launched the process at all. Lemkin’s broad concept of genocide
encountered serious challenges when he attempted to move it from an academic platform to
the centre stage of international law-making. His initial effort was at the United Nations
General Assembly, sitting in its first session in 1946. Lemkin was severely disillusioned by
the judgment of the International Military Tribunal because it failed to condemn Nazi
crimes perpetrated prior to the outbreak of the War. That was a consequence of the
emasculated definition of crimes against humanity adopted at the London Conference and
endorsed by the judges at Nuremberg. The judgment linked crimes against humanity to
aggressive war, thereby ensuring the guilt of the Germans but insulating the four Great
Powers who created the Tribunal from any international criminal liability for atrocities
perpetrated against their own civilian populations.
‘The Tribunal condemned war-time genocide but left peace-time genocide unpunished’,
Lemkin complained in the lobby of Nuremberg’s Grand Hotel following issuance of the
judgment. In reality, the judgment didn’t even use the word ‘genocide’, but these remarks
show that Lemkin was more concerned with content than with form. Had the International
Military Tribunal convicted the defendants of ‘peace-time crimes against humanity’, Lemkin
might well have been satisfied and turned his attention to other matters. Instead he set
about changing the fact of international law, rushing back to New York where the General
Assembly was about to resume its first session.
It was countries of the global south, what we used to call the ‘third world’, who embraced
Lemkin’s proposed General Assembly resolution recognizing genocide as an international
crime that could be perpetrated in time of peace as well as in time of war. What became
Resolution 96(I) of the General Assembly, entitled ‘The Crime of Genocide’, was presented
by Cuba and co-sponsored by India and Panama. As it was being debated, Saudi Arabia
contributed a draft convention, intended as the starting point of a negotiation process. The
Resolution offered a summary definition of the crime that resembles the final version in the
1948 Convention, although there are some significant differences, but the final text of the
Convention was in one respect far more restrictive than anything Lemkin would have
wanted. Article II required that the punishable acts be committed with ‘intent to destroy’ a
national, racial ethnic, or religious group. Acts of persecution had generally been grouped
under the rubric of ‘cultural genocide’, and they were quite explicitly excluded from the
Convention’s scope.
It would be many more years before the General Assembly would endorse any other
definitions of atrocity crimes. Although it adopted two definitions of the crime of genocide,
in the 1946 Resolution and the 1948 Convention, it resisted giving its blessing to any
definition of crimes against humanity. The first session of the General Assembly, in
Resolution 95(I), authorized a ‘general codification of offences against the peace and
security of mankind’. It also affirmed ‘the principles recognized in the Charter (p. ix) of the
Nürnberg Tribunal and in the judgment of the Tribunal’, but the International Law
Commission’s definition of crimes against humanity, which was generally consistent with
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the judgment at Nuremberg, met with controversy in the 1950 session of the General
Assembly and was ultimately never accepted.
What to make of this confused situation? In the Charter of the International Military
Tribunal the four great powers, the United States, the United Kingdom, France, and the
Soviet Union had devised a notion of atrocity crime committed against civilians that could
only be committed in the context of an international armed conflict. Disappointed with this
definition of crimes against humanity, Lemkin offered a competing vision, a crime of
genocide. It had marked similarities with crimes against humanity but could be committed
in peacetime as well as in time of war. The four great nations who had so cynically limited
the notion of crimes against humanity in 1945, in order to shield themselves from
responsibility were not going to agree, in 1948, to a more or less similar concept just
because the name of the offence had been changed. They insisted that if genocide could be
punishable when committed in peacetime, then it had to be limited in other respects. First,
it was confined to national, ethnic, racial, and religious groups, a restriction with which
Lemkin and many others were in agreement. Second, genocide involved the deliberate
destruction of a group rather than the broader notion of persecution. This restriction was a
big disappointment to Lemkin, and many others, at the time and indeed to the present day.
Over the decades that followed, the narrow definition of genocide proved a source of great
frustration and angst. It seemed that most of the terrible atrocities perpetrated by regimes
against their own populations did not fit neatly with the terms of Article II of the 1948
Convention. Crimes against humanity, as defined at Nuremberg, would often have been far
more suitable as a legal characterization, were it not for the nexus with armed conflict.
Moreover, unlike genocide, there was no convention on the prevention and punishment of
crimes against humanity.
Different solutions were proposed. One was to encourage a liberal and dynamic
interpretation of the Genocide Convention. The other was to call for its amendment.
However, when international criminal law underwent its great revival, in the 1990s, neither
of these two options was followed. Judges tended to adopt relatively strict interpretations of
the terms of Article II of the Convention. In particular, they resisted extending the
punishable acts in such a way as to encompass those involving persecution rather than
outright destruction. This was not because they were particularly conservative by nature.
International judges, beginning with the Appeals Chamber of the International Criminal
Tribunal for the former Yugoslavia, were prepared to make audacious leaps in the
interpretation of war crimes and crimes against humanity. Such legal creativity persists in
decisions and judgments of the International Criminal Court.
Moreover, when given the opportunity lawmakers showed no desire to amend the text of
Article II of the Genocide Convention. The Rome Conference of 1998 was in so many
respects an orgy of progressive legal development. With few objections, the armed conflict
nexus in crimes against humanity and the confinement of war crimes to international armed
conflict disappeared. On the other hand, isolated efforts to amend the definition of genocide
did not resonate with delegates at all. Article 6 of (p. x) the Rome Statute quite faithfully
reproduces the text of Article II of the Genocide Convention, adopted half a century earlier.
It may seem a paradox that crimes against humanity and war crimes have undergone such
dynamic development over the past twenty-five years while the crime of genocide has
remained stable, indeed almost stagnant, stubbornly resisting incessant appeals that it be
enlarged. For whatever reasons, those who make and develop international law have opted
to address an inadequate legal regime in terms of protection of civilian populations by
enlarging two categories and leaving the third relatively untouched. The result is entirely
satisfactory, in terms of delivering justice and addressing the entitlements of victims. Yet for
many there remains great disappointment with the narrow scope of the crime of genocide.
In the past, prior to the 1990s, there were no alternatives in the face of a failure to meet the
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terms of Article II of the Genocide Convention. If an atrocity did not fall within the ambit of
the Convention, international criminal law was ill-equipped to address it.
That situation is now totally changed. Today, describing an atrocity as a crime against
humanity rather than as genocide has little or no significance, at least in terms of its legal
consequences. The International Criminal Court, like the ad hoc tribunals, has jurisdiction
over both categories of crime. The penalties, the modalities of participation, and the
available excuses and justifications are, for all practical purposes, about the same. At a
more political level, the doctrine of the responsibility to protect applies to both genocide
and crimes against humanity (as well as to war crimes and ethnic cleansing).
Yet the importance of genocide as a label for atrocities, regardless of any practical legal
significance, remains acute. Genocide is a word of immense rhetorical value, to which
victims and their advocates attach huge importance. In 2005, the Fact-Finding Commission
on Darfur established pursuant to a Security Council resolution, and chaired by a great
jurist, Antonio Cassese, tried to address this phenomenon. With genuine rigour, it concluded
that there was credible evidence of crimes against humanity but not of genocide. While
acknowledging that ‘genocide bears a special stigma’, the Commission stated that ‘one
should not be blind to the fact that some categories of crimes against humanity may be
similarly heinous and carry a similarly grave stigma’. Since then the cautious wisdom of the
Commission has not always been heeded, however. In 2009, after a Pre-Trial Chamber of
the International Criminal Court issued an arrest warrant against President Bashir for
crimes against humanity and war crimes, yet rejected the application for a charge of
genocide, the Prosecutor persisted and appealed the decision. More recently, commissions
of inquiry established by the Human Rights Council have used the word ‘genocide’ to
describe situations in Syria and in Myanmar. Adopting what was in practice a broad
understanding of the crime of genocide, their reports do not reflect a careful analysis of
case law from such authoritative bodies as the International Court of Justice, the Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia, and the Grand
Chamber of the European Court of Human Rights. If the Sudan, Syria, and Myanmar cases
every come to trial, and if the legal precedents are followed, charges of genocide will
flounder in all likelihood, and yet use of the term is not without great impact outside the
courtroom. It is certainly easier to be convicted of genocide in the Human Rights (p. xi)
Council, in national parliaments, and in the media than it is in a properly constituted
criminal court.
Strict construction of the definition of genocide does not render the concept entirely inert.
The crime has been prosecuted frequently in the past few decades. It has been studied and
interpreted by several of the world’s great courts and tribunals, at both the national and the
international levels. Enigmas persist within the terms of Article II of the Convention.
Further legal development, along the lines advocated by so many reformers over the
decades, seems unlikely although it cannot be ruled out. It is essential that the crime of
genocide be studied not in isolation but within a broader context, where its synergies with
crimes against humanity and war crimes can be fully appreciated. It is not very helpful to
treat these crimes in a hierarchical manner, where one is viewed as a bronze medal,
another as silver, and a third (guess which one) as gold. Rather, the three categories
comprise a package. What is important is to ensure the absence of significant gaps in the
package taken as a whole. This goal is not advanced by treating them as competitors.(p. xii)
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Preface
From: International Crimes: Law and Practice: Volume I: Genocide
Guénaël Mettraux
Content type:Book content
Product:Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:13 June 2019
ISBN:9780198843115
This book builds upon years of practice in the field of international criminal justice.
Experiencing international criminal law from within meant being exposed to the fact that
this body of law is not some abstract truth waiting to be revealed but a malleable set of
norms heavily reliant on its actors to give it shape and colours. In Tadić, for instance, the
concept of ‘nationality’ was interpreted to mean ‘allegiance’ so that Bosnian-Serbs and
Bosnian-Muslims, who were fellow Bosnian nationals, could nevertheless be said to be of
two different nationalities and so that the latter would be protected under the grave
breaches regime of the Geneva Conventions.11 In Kunarac, the requirement of ‘state official’,
which had long been an element of the notion of torture under human rights law, was
whipped out of the definition of this offence and the accused, Dragoljub Kunarac, a local
thug-cum-military, was convicted for it without regard for his status.22 In these and many
similar instances, international criminal law was being made not just revealed.
Jurisprudence in this field does not therefore simply help flesh out and clarify the law. In
many cases, it determines its content so that there can be no understanding of the law
without a solid grasp of the related judicial practice.
The purpose of this book and of the associated volumes is to offer a detailed overview of the
law and relevant practice pertaining to the four international core crimes—genocide; crimes
against humanity; war crimes; and aggression—so as to help practitioners and scholars
navigate the complex and sometimes turbulent waters of international criminal law. To that
end, consideration was given to the various contributors to the law of international crimes—
international and internationalized criminal tribunals,33 domestic courts, the UN Security
Council and General Assembly, the International Law Commission, scholars, and a variety of
other institutions—and to their respective normative output. Once collected, this raw
material was approached with three interpretative principles in mind. The first of these is
that the past is generally relevant to understanding the present. A sound understanding of
the law of international crimes, therefore, demands cognizance of its history and of the
factors that helped shape it.
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Second, the practice of tribunals which have dealt with international crimes is a good place
in which to anchor the study of international criminal law. Their practice provides a degree
of collective wisdom, which helps identify relevant legal principles, (p. xiv) their origin and
interpretation. It also offers a valuable soundboard against which to check individual
preferences as well as scholarly opinions.
Third, the various components of that law are to be approached and evaluated with a
degree of deference but also with a critical mind. The jurisprudence of international crimes
is replete with suggestions that certain pronouncements reflect customary law or constitute
an accepted understanding of the law. Judicial decisions are of course entitled to some
degree of deference. However, deference is earned and conditioned by the courts having
made a credible case for their conclusions. The precedential value of a judicial decision is
therefore a relative, rather than absolute, thing. Similarly, one cannot approach the Rome
Statute or the ICC’s Elements of Crimes as ‘gospel’ lest one loses the ability to conduct a
critical assessment of their content, raison d’être, and value. Therefore, the study of the law
of international crimes necessarily implies a readiness to investigate, accumulate, compare,
critique, and test the various pieces that make up that body of law. In some respects, it also
involves the expression of interpretative preferences where the law leaves room for it.
The idea for this project was inspired by two men, both friends and great jurists. Antonio
(‘Nino’) Cassese infected those around him with the same zeal that drove him through life
and with that perhaps naïve belief that law can serve the ends of justice even in the most
challenging of places. This book is a modest contribution to a construction that he started.
Judge David A. Hunt, a judge at the International Criminal Tribunal for the former
Yugoslavia (ICTY), patiently mentored a keen but green lawyer and opened the door for him
to a new, fascinating, legal culture. From this experience came an understanding that
criminal law is ultimately about the effectiveness of its enforcement and about the quality of
the justice that implements it. Law, he thought, is of little value to man if not applied fairly
and credibly. To both of these men, I will forever be indebted.
This book could not have been written without the help and support of many people who
generously gave their time to contribute to this endeavour and push it across the finish line.
Particular thanks go to a group of talented individuals who helped make the project a
reality: Sarah Bafadhel, Bettina Spilker, Lina Baddour, Dermot Groome, Andrea Knežević,
Sam Gaunt, Daphne Yuqing Liu, and Sarah E Hunter. Professor Bill Schabas was also
instrumental to the creation of this book through his writings, friendship, and support.
Gary S Gildin, Dean of the Penn State’s Dickinson Law made the completion of this book
possible by putting at my disposal some of the school’s brightest students—Sarah Zomaya,
Malcolm Mcdermond, and Michael Pipa—who provided precious research and editorial
assistance. Particular gratitude goes to Olivia Phillips for her unequalled commitment and
precious work on this project.
Gratitude is also due to the many others who have commented on sections of the
manuscript or provided other forms of support: Jesenka Residović, Gabrielle McIntyre, Eve
La Haye, Simon Meisenberg, Yasmeen Zuaiter, Max Du Plessis, Svetislav Rabrenović,
Christoph Barthe, Jenna C Klein, Matthias Lanz, Bas Volkers, Claire O’Connell, Amélie
Zinzius, Nicolas Guillou, Kim Seelinger, Haris Halilović, (p. xv) Laetitia Husson, John
Dugard, Novak Lukić, Julien Maton, Iain Edwards, Philippa Webb, Mappie Veldt-Foglia,
Sophie Jackson, Sohinee Ghosh, and Matt Halling.
Finally, my heartfelt appreciation goes to my editors at Oxford University Press, John Louth,
Merel Alstein, and Jack McNichol, for their unwavering trust and support and for not
minding the extra pages.(p. xvi)
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Footnotes:
11  Prosecutor v. Tadić, Case No. IT-94-1-A, Opinion and Judgment, 15 July 1999, paras 164ff,
in particular, paras 166–169.
22  Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-T, Judgment, 22 February
2001, paras 488ff.
33  Particular attention was paid to these: the IMT; the IMTFE; Control Council Law No. 10
tribunals; ICTY; ICTR; SCSL; ICC; ECCC; East Timor Panels; UNMIK Panels; the State Court
of Bosnia-Herzegovina; STL; the Extraordinary African Chambers; the KSC; the African
Court of Justice and Human Rights under the Malabo Protocol; and the Special Criminal
Court in the Central African Republic.
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Contents
From: International Crimes: Law and Practice: Volume I: Genocide
Guénaël Mettraux
Content type:Book content
Product:Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:13 June 2019
ISBN:9780198843115
Table of Cases and Documents xxvii
1  Towards a Universal Law of International Crimes: General Introduction 1
1.1  What Are International (‘Core’) Crimes? 1
1.2  A Brief History of International Crimes 2
1.3  The Making of the Law of International Crimes 3
1.4  Towards a Nascent Universal Law of International Core Crimes 4
1.5  Conclusions 5
2  A Short History of the Crime of Genocide 6
2.1  Birth of the Notion of Genocide 6
2.2  Genocide at Nuremberg 6
2.3  Recognition of Genocide as a Crime under International Law:
Resolution 96(I) and the Genocide Convention 11
2.4  International Criminal Tribunals and the Advancement of the Law of
Genocide 14
3  Genocide under General International Law 16
3.1  Scope of Application—General Considerations 16
3.2  Peace and War 16
3.3  States and Individuals 18
3.3.1  General considerations 18
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3.3.2  Conditions of liability 20
3.3.2.1  Different regimes of liability 20
3.3.2.2  Modes of participation and inchoate offences specific
to genocide 23
3.3.2.3  Different mens rea 24
3.3.2.4  No additional element of policy 25
3.3.3  No category of individuals excluded 26
3.3.3.1  General application of the prohibition 26
3.3.3.1.1  Status, rank, and position irrelevant 26
3.3.3.1.2  Monarchs 27
3.3.3.1.3  Nationality of perpetrator and victim 31
3.3.3.2  Superior orders 32
3.3.3.2.1  The Convention and customary international
law 32
3.3.3.2.2  Article 33 ICC Statute 36
3.4  Temporal and Territorial Framework 38
3.4.1  Temporal scope of application 38
3.4.2  Geographical scope of application 39
3.5  Gravity of the Crime 39
3.6  Normative Status 43
3.6.1  Customary law status 43
3.6.2  Jus cogens 46
3.6.3  Erga omnes 50
3.7  Principles of Interpretation 51
3.7.1  Between strict and humanitarian approaches to interpretation 51
3.7.2  Interpreting the notion of genocide at the ICC 53
3.8  Exclusion from Refugee Status 54
(p. xviii) 4  Jurisdiction to Investigate and Prosecute Acts of Genocide 56
4.1  Jurisdictions Foreseen by the Convention 56
4.1.1  General considerations 56
4.1.2  Two penal jurisdictions expressly foreseen 56
4.1.3  No exclusion of other penal jurisdictions 57
4.1.4  The International Court of Justice 62
4.2  Universal Jurisdiction 63
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