Prosecution Of Genocide Research Articles

Prosecuting Lemkin’s Concept of Genocide: Successes and Controversies

This paper is an exploration of genocide prosecutions since the inception of the term in 1944 by Raphael Lemkin, its legal definition by the United Nations in 1948, and the eventual establishing of the International Criminal Court in 1998. The paper is in three parts. The first part examines the history of genocide legislation, particularly the international legal frameworks established since Lemkin first devised the term in 1944. The second part details, for the first time, the extent of genocide prosecutions to date. To do so, it employs material from various international criminal tribunals, the International Criminal Court, national courts, and media accounts contemporary with the events. The final part illustrates the politics involved in genocide prosecutions, using a case study of the International Criminal Court’s involvement in Africa and the failed extradition of Sudanese president Omar Al Bashir. The case study uses a range of secondary sources, including documents from the ICC, the African Union, National Governments, and other contemporary accounts. Overall, the paper argues that despite some successes in prosecuting genocide and the deterrent effects of international tribunals and courts, the international community has not yet been able to stop what Lemkin described over 70 years ago as “an old practice in its modern development”.

Three Theoretical Approaches to Lemkin’s Definition of Genocide

This paper is an exploration of genocide prosecutions since the inception of the term in 1944 by Raphael Lemkin, its legal definition by the United Nations in 1948, and the eventual establishing of the International Criminal Court in 1998. The paper is in three parts. The first part examines the history of genocide legislation, particularly the international legal frameworks established since Lemkin first devised the term in 1944. The second part details, for the first time, the extent of genocide prosecutions to date. To do so, it employs material from various international criminal tribunals, the International Criminal Court, national courts, and media accounts contemporary with the events. The final part illustrates the politics involved in genocide prosecutions, using a case study of the International Criminal Court’s involvement in Africa and the failed extradition of Sudanese president Omar Al Bashir. The case study uses a range of secondary sources, including documents from the ICC, the African Union, National Governments, and other contemporary accounts. Overall, the paper argues that despite some successes in prosecuting genocide and the deterrent effects of international tribunals and courts, the international community has not yet been able to stop what Lemkin described over 70 years ago as “an old practice in its modern development”.

Justice and Genocide

This paper examines both cosmopolitan and pragmatic arguments for the prosecution of genocide in international and transnational tribunals. While both approaches provide valuable insights regarding the potential for international prosecutions, they each overlook deontological arguments. The paper ends with an outline of a more strictly normative justification for genocide prosecutions.

Israel, Palestine, and the Language of Genocide

Israel, Palestine, and the Language of Genocide

The Ríos Montt case and universal jurisdiction

ABSTRACTThis article analyses the inter-relationship of developments in international justice and the prosecution of Efraín Ríos Montt for the crime of genocide in Guatemala. International justice processes, particularly concerning the application of ‘universal jurisdiction’, contributed to the advancement of the case against Ríos Montt, in Spain and Guatemala. In turn, the prosecution of Ríos Montt influenced the interpretation and application of universal jurisdiction, with ramifications beyond the Guatemalan case itself. The article traces the prosecution for genocide of Efraín Ríos Montt in the Spanish National Court, and situates this particular case within broader currents and networks associated with prosecuting grave violations of human rights. The prosecution of Ríos Montt demonstrates that, rather than a simple case of global norms trickling ‘down’ to the (lower) local level, mutually constituted activities of the global and the local continually shape each other. The interconnections of national and transnational processes were key to the prosecution of genocide in Guatemala.

The Domestic Prosecution of Genocide

Perpetrators of international crimes have increasingly been prosecuted. Whereas the focus is mainly on international criminal courts, it may not be forgotten that the prosecution of international crimes is a duty of the State. The Convention on the Prevention and the Punishment of the Crime of Genocide explicitly provides that States have a duty to prosecute genocide when committed in their territory. In recent years national courts have become more active when judging upon the crime of genocide, spurred by international criminal courts. Nonetheless, the influence is not one-sided from the international criminal tribunals to the national level. National courts have also engaged and criticized decisions of international courts, leading to a dialogue between the national and international level. Furthermore, the national application of the Genocide Convention also leads to a better understanding of the Genocide Convention. By incorporating the crime of genocide into the domestic legal system and applying it the contours of the crime will be fixed. Furthermore, national legislation and court decisions are building blocs of custom. Hence, by studying the national enforcement of the crime of genocide the extent of customary international law in this field may become clarified.

Parties to Offences under the Canadian Crimes against Humanity and War Crimes Act : an Analysis of Principal Liability and Complicity

The Crimes against Humanity and War Crimes Act presents an interesting mosaic of law applicable to the domestic prosecution of genocide, crimes against humanity and war crimes. The definitions of offences refer essentially to international law, whereas the available defences, justifications and excuses are those of both Canadian law and international law, and the modes of participation in offences are exclusively those of Canadian law. This raises the question of the relevance and effectiveness of the legislative choice to apply domestic law to the principles of liability for international crimes. The present study offers a preliminary and limited analysis of certain modes of participation in offences provided for by the Act, namely perpetration and complicity pursuant to section 21 of the Criminal Code. This analysis aims at assessing, in light of the principles developed in international criminal law with respect to individual responsibility, whether and how Canadian law may be adapted to the particular — collective — nature of international crimes.

Prosecution of Genocide v. the Fair Trial Principle: Comments on Brown and others v. The Government of Rwanda and the UK Secretary of State for the Home Department

The article examines the 2009 decision of the United Kingdom High Court of Justice to deny the extradition of four genocide suspects to Rwanda owing to fair trial and partiality concerns with the Rwandan judiciary. It begins by reviewing the relevant UK extradition legislation, the pertinent facts and the rationale for the judgment and proceeds to situate this decision within the broader transnational judicial scepticism about the extradition or transfer of genocide suspects to Rwanda. While this scepticism arises from valid concerns regarding the contemporary state of human rights in Rwanda, it nevertheless contributes to the perpetuation of impunity surrounding massive historical violations of human rights in the country. This article also enquires about appropriate burdens of proof when extraditing individuals accused of extraordinary international crimes, the importability of International Criminal Tribunal for Rwanda referral judgments into the context of inter-state extradition, and the relationship between international human rights law and transitional justice.

From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to wiped off the face of the map -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Leon Mugesera matter. Using this framework, it demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, to take the case, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation. The odds of this happening are long. As a result, the Article proposes that incitement law shift its focus from post-atrocity punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. The Article also suggests that euphemisms employed to disguise incitement, such as predictions of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for protected-group violence, as opposed to mere hatred.

The Use of Material Culture to Establish the Ethnic Identity of Victims in Genocide Investigations: A Validation Study from the American Southwest*

Successful prosecution of genocide requires that the victims constitute one of four protected groups: national, religious, ethnic, or racial. Establishing victim identity in prior trials has relied on positive identification of decedents, been largely presumptive, or was based on untested methodology. This report details a validation study of one untested method: the use of material culture in establishing ethnic identity. Classes of clothing and personal effects were scored on 3,430 individuals of known Hispanic or White ancestry from autopsy records in New Mexico. Significant differences were seen in evidence of language, nationality, and religious affiliation between the two groups, as well as clothing types and currency. Predictive models used to estimate ethnic identity in random, blind subsets produced an overall accuracy of 81.5% and estimates of 61-98% in specific subsets. Results suggest material culture, when present, can provide reliable evidence of ethnic affinity in genocide investigations.

Again, and Again, and Again: Why We Fail in the Face of Genocide

Author(s): Bhat, Radhika | Abstract: After the exposure of the Nazi atrocities against ethnic and religious groups in World War II, the international community declared that it would never stand for such violence again. To this end, the member states of the United Nations passed the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. Yet, despite this codification of international law pertaining to genocide and genocide-like crimes, these crimes continue to abound, leaving no recent decade untouched. This thesis seeks to understand the reasons for the continuing prevalence of genocide and genocide-like crimes through an analysis of the body of genocide law, the actualities of state practice in the current international system, and the United Nations’ ideology and practices. In closing, it presents a series of recommendations intended to increase the prevention, suppression, and prosecution of genocide and genocide-like crimes.

Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code

On 1 July 2002 new provisions for the prosecution of genocide, crimes against humanity and war crimes came into operation within the Australian Commonwealth Criminal Code. The offences were introduced as a part of Australia’s ratification of the Rome Statute of the International Criminal Court. Through the enactment of these crimes within the broader context of the Criminal Code, Australia has, perhaps unwittingly, created a basis to prosecute corporations for these crimes even under the universal jurisdiction principle. A current investigation by the Australian Federal Police into the possible role of mining company Anvil Mining Limited in facilitating a military offensive in the town of Kilwa in the Democratic Republic of the Congo indicates that Australia, like many nations today, is grappling locally with the possibility of corporate involvement in international crime. As a potential source of action against companies implicated in international crime, the possible reach of the Australian Criminal Code provisions warrants consideration. This article outlines the application of the new Australian international crimes provisions to corporations and argues that, if used appropriately, these will represent a positive development toward corporate accountability.

National Prosecution of Genocide from a Comparative Perspective

National Prosecution of Genocide from a Comparative Perspective HELMUT KREICKER Head of the Section “International Criminal Law” at the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany I. Introduction 1. From international law reforms to national law reforms The field of international criminal law has gained much attention since the world order fundamentally changed after the breakdown of the socialist sys- tem at the end of the eighties. The two UN-Tribunals were established in 1993 and 1994. In 1998, the first permanent International Criminal Court (ICC) was founded with the adoption of the Rome Statute. 1 Only

National Courts Finally Begin to Prosecute Genocide, the 'Crime of Crimes'

The 1948 Genocide Convention contemplates prosecution by the national courts of the territory where the crime took place, and by an international criminal court. The drafters of the Convention meant to exclude universal jurisdiction, although courts have since tended to interpret Article VI of the Convention as being merely permissive, and in no way a prohibition of universal jurisdiction. Finally, within the past decade, the national courts of the territory where genocide was committed, other national courts and the international tribunals created by the Security Council have undertaken genocide prosecutions. Alongside the activities of the two ad hoc international tribunals, national courts in Rwanda, Bosnia and Herzegovina, Croatia and Kosovo have held trials based on the provisions of the Convention. The Rwandan trials now number in the thousands, but those in the other jurisdictions have been essentially symbolic. As for universal jurisdiction, the mere handful of genocide prosecutions (for instance in Germany, Switzerland, and Belgium) show that it can fill the gaps in the Convention. The problems appear to be political rather than judicial.

The Jelisić Case and the Mens Rea of the Crime of Genocide

The December 1999 judgment of the ICTY in the Jelisić case is the first ruling on the merits from that court dealing with an indictment for genocide. The Trial Chamber concluded that the Prosecutor had failed to prove that genocide was committed and that consequently the accused could not be convicted as an accomplice to the crime. It went on to examine whether despite the absence of genocide on any widespread or systematic basis it was still possible for an individual, driven by genocidal intent, to commit one of the underlying crimes such as killing or causing serious bodily or mental harm. The Trial Chamber considered this a plausible hypothesis but ruled that this did not correspond to the facts of the case. Since the Jelisić ruling, the Preparatory Commission of the International Criminal Court has attempted to eliminate the lone génocidaire scenario in the Elements of Crimes. While the law remains unsettled, awaiting clarification from the Appeals Chamber, a wise prosecutorial policy would be to reserve international genocide prosecutions for serious cases involving organized and widespread crimes. Exaggerated attention to individual and isolated cases is a questionable use of valuable resources and risks diluting some of the terrible stigma now attached to the “crime of crimes.”

The End of a Culture of Impunity in Rwanda? Prosecution of Genocide and War Crimes before Rwandan Courts and the International Criminal Tribunal for Rwanda

Following the death of Rwandan President Juvénal Habyarimana in a plane crash on 6 April 1994, Hutu extremists, members of the Presidential Guard, Rwandan army troops, theInterhamwe(‘Those who work together’) militia affiliated to the ruling party, the M.R.N.D. (Mouvement Révolutionaire National pour la Démocratie) and theImpuzamugambi(‘Those with a single purpose’) militia of the extremist CDR Party (Coalition pour la Défense de la République) began the systematic and widespread killings of Tutsi civilians in the capital Kigali. Hutu moderates were also targeted. Early victims of the violence included Prime Minister Agathe Uwilingiyimana along with ten Belgian soldiers of the United Nations Assistance Mission for Rwanda (UNAMIR). This incident prompted the withdrawal of UNAMIR which left the perpetrators of the genocide a free rein. Ministers and the President of the Constitutional Court were also killed within hours of the plane crash.

Population Statistics, the Holocaust, and the Nuremberg Trials

THIS ARTICLE PRESENTS the findings of my recent research on the role of population statistics and related data systems, methods, and personnel in planning and carrying out the Holocaust. Specific attention is given to events in Germany, Poland, France, the Netherlands, and Norway. In addition, the article examines how population data were used in the Nuremberg War Crimes Trials following the conclusion of World War II.' This research was based on an extensive review of contemporaneous and secondary sources that deal with the Holocaust and the Nuremberg trials, the relevant national data systems, and the activities of a number of the statisticians and demographers involved. No attempt was made, however, to develop new estimates of Holocaust mortality, nor was any evidence found to call into question the mortality approximations made over 50 years ago. In many respects, examining the use of statistics and statistical systems in the service of genocide is a more productive undertaking than trying to fine-tune the estimates of Holocaust victims or, indeed, the mortality caused by any genocide. Such figures are often clouded in both secrecy and uncertainty, so that beyond a certain point, efforts at refining estimates of genocide mortality have little purpose or prospect of success. This is a conclusion on which many Holocaust scholars, prosecutors, and statisticians seem to agree (Fein 1981; Hilberg 1985: 1202; Spirer and Spirer 1993: 3). On the other hand, the largely unrecognized role that statistics and statistical systems played in the Holocaust has implications for the investigation and criminal prosecution of genocide more generally as well as for fostering standards of ethical behavior among those working as statisticians and demographers. I also hope that knowledge of this historical experience may contribute to the development of more prudent national statistical policies now and in the future. This article thus addresses an understudied borderland between demography, statistical policy, human rights defense, and Holocaust scholar

The role of forensic investigations in genocide prosecutions before an international criminal Tribunal.

The role of forensic investigations in genocide prosecutions before an international criminal Tribunal.

Genocide: Politics and Psychology: A Review Essay

102 SHOFAR Fall 1992 Vol. 11, No. 1 GENOCIDE: POLITICS AND, PSYCHOLOGY A REVIEW ESSAY by Louis Rene Beres Department of Political Science Purdue University ( The Genocidal Mentality: Nazi Holocaust and Nuclear Threat, by Robert Jay tifton and Eric Markusen. New York: Basic Books, 1990. 346 pp. $22.95. The United States and the Genocide Convention, by Lawrence J. LeBlanc. Durham, NC: Duke University Press, 1991. 290 pp. n.p.l. Even in a century that can best be described as the Age of Atrocity" few people have suffered so terribly as the victims of genocide. Enduring all that murders and torments, these victims have been identified by their fellow humans as dark phantoms of subhumanity, suited only for degradation and slaughter. What is more, those who are not directly involved in the killing and dying witness the daily operations of automated extermination with indifference. Not surprisingly, the appalling silence of good people is absolutely vital to those who carry out crimes against humanity. Why? How has an entire species, miscarried from the start, scandalized its own creation? Are we all the potential murderers of those who live beside us? For as long as we can recall, the corpse has been in fashion. Today, at the close of the twentieth century, whole nations of corpses are the rage. And this is true despite the codification of antigenocide rules under international law. Why? The answer has several levels, several layers of meaning. At one level-the one examined by Lawrence J. LeBlanc in The United States and tbe Genocide Convention-the problem lies in the domestic political determinants of international human rights legislation. Examining the nearly forty-year struggle over ratification of the Genocide Convention by the United States, LeBlanc does not attach undue importance to the act of ratification per se (indeed, he correctly acknowledges reasons for pessi- Genocide: Politics and Psychology 103 mism about what the formality of ratification can achieve), but he does recognize that United States efforts to combat genocide have been undermined by the extraordinary American delay. This very lucid and carefully constructed book will be of particular interest to students of international law, especially those concerned with the identification and prosecution of genocide and other crimes against humanity, and to students of American political processes, especially to those interested in a fascinating case study of the treaty-making power. According to Article II, section 2, of the U.S. Constitution, presidents have the power "by and with the Advice and Consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Extending from June 1949, when President Harry S Truman requested the Senate's advice and consent, to February 1986, when the Senate finally adopted a resolution ofratification, this power's application to the Genocide Convention was notably problematic. And even after the overwhelming Senate vote in favor ofthe resolution ofratification, the ratification was conditional -subject, as leBlanc points out, to two "reservations," five "understandings ," and a "declaration." This book represents a first-class work of important scholarship. Although readers ~who seek fundamental explanations of genocidal behavior will have to look elsewhere, The United States and the Genocide Convention looks closely at the jurisprudential scope and meaning of the crime as well as pertinent measures of implementation. These measures include domestic implementing legislation, an international criminal court, the international court of justice, and domestic courts. Finally, the book contains numerous useful tables ofvaluable information as well as key documents relating to genocide, including the Convention on the Prevention and Punishment of the Crime of Genocide and the Genocide Convention Implementation Act of 1988. Our second book under review, Lifton and Markusen's The Genocidal Mentality, does seek explanations of destructive behavior and finds them in a "cast of mind"-a mentality evident in both Nazi crimes and in stillpossible nuclear wars. Drawing upon "lessons of the Holocaust," the book considers the past and future operation of psychological mechanisms underlying all large-scale atrocity behavior. In this connection, as the reader might expect from Lifton's earlier work, special attention is focused upon the dissociative processes "psychic numbing" and "doubling," processes enabling genociders to remain "sane" while in the service of mass...