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Genocide
 

Genocide is defined by the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) Article 2 as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group."

Coining of the term genocide

The term "genocide" was coined by Raphael Lemkin (1900–1959), a Polish Jewish legal scholar, in 1943, from the roots genos (Greek for family, tribe or race) and -cide (Latin - occidere or cideo - to massacre).

Lemkin said about the definition of genocide in its original adoption for international law at the Geneva Conventions:

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.Raphael Lemkin, Axis Rule in Occupied Europe (Wash., D.C.: Carnegie Endowment for International Peace, 1944), p. 79.

Lemkin's original genocide definition was narrow, as it addressed only crimes against "national groups" rather than "groups" in general. At the same time, it was broad in that it included not only physical genocide, but also acts aimed at destroying the culture and livelihood of the group.

Genocide as a crime under international law

In the wake of the Holocaust committed by the Nazis, Lemkin successfully campaigned for the universal acceptance of international laws, defining and forbidding genocide. This was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide.

The CPPCG was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally-recognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC). The Convention (in article 2) defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:"

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

The first draft of the Convention included political killings but the USSR did not accept that actions against groups identified as holding similar political opinion or social status, that would constitute genocide if carried out against an ethnic group, was genocide. So they were removed in a political and diplomatic compromise.

After the minimum 20 countries became parties to the Convention, it came into force as international law on 12 January 1951. At that time however, only two of the five permanent members of the UN Security Council (UNSC) were parties to the treaty: France and the Republic of China. Eventually the Soviet Union ratified in 1954, the United Kingdom in 1970, the People's Republic of China in 1983 (having replaced the Taiwan-based Republic of China on the UNSC in 1971), and the United States in 1988. This long delay in support for the Genocide Convention by the world's most powerful nations caused the Convention to languish for over four decades. Only in the 1990s did the international law on the crime of genocide begin to be enforced.

Criticisms of the CPPCG

Much debate about genocides revolves around the proper definition of the word "genocide." The exclusion of social and political groups as targets of genocide in the CPPCG legal definition has been criticized by some historians and sociologists, for example M. Hassan Kakar in his book The Soviet Invasion and the Afghan Response, 1979-1982M. Hassan Kakar ''Afghanistan: The Soviet Invasion and the Afghan Response, 1979-1982 University of California press © 1995 The Regents of the University of California. argues that the international definition of genocide is too restricted M. Hassan Kakar 4. The Story of Genocide in Afghanistan: 13. Genocide Throughout the Country, and that it should include political groups or any group so defined by the perpetrator and quotes Chalk and Jonassohn: “Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator.”Frank Chalk, Kurt Jonassohn The History and Sociology of Genocide : Analyses and Case Studies, Yale University Press, 1990, ISBN 0300044461

According to R. J. Rummel, genocide has 3 different meanings. The ordinary meaning is murder by government of people due to their national, ethnical, racial, or religious group membership. The legal meaning of genocide refers to the international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide. This also includes nonkillings that in the end eliminate the group, such as preventing births or forcibly transferring children out of the group to another group. A generalized meaning of genocide is similar to the ordinary meaning but also includes government killings of political opponents or otherwise intentional murder. It is to avoid confusion regarding what meaning is intended that Rummel created the term democide for the third meaning.Domocide versus genocide; which is what?

A major criticism of the international community's response to the Rwandan Genocide was that it was reactive, not proactive. The international community has developed a mechanism for prosecuting the perpetrators of genocide but has not developed the will or the mechanisms for intervening in a genocide as it happens. Critics point to the Darfur conflict and suggest that if anyone is found guilty of genocide after the conflict either by prosecutions brought in the International Criminal Court or in an ad hoc International Criminal Tribunal, this will confirm this perception.

International prosecution of genocide

All signatories to the CPPCG are required to prevent and punish acts of genocide, both in peace and wartime, though some barriers make this enforcement difficult. In particular, some of the signatories — namely, Bahrain, Bangladesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and Yugoslavia — signed with the proviso that no claim of genocide could be brought against them at the International Court of Justice without their consentUnited Nations Treaty Collection (As of 9 October 2001): Convention on the Prevention and Punishment of the Crime of Genocide on the web site of the Office of the United Nations High Commissioner for Human Rights. Despite official protests from other signatories (notably Cyprus and Norway) on the ethics and legal standing of these reservations, the immunity from prosecution they grant has been invoked from time to time, as when the United States refused to allow a charge of genocide brought against it by Yugoslavia following the 1999 Kosovo War.

It is commonly accepted that, at least since World War II, genocide has been illegal under customary international law as a peremptory norm, as well as under conventional international law. Acts of genocide are generally difficult to establish, for prosecution, since intent, demonstrating a chain of accountability, has to be established. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.

To date all international prosecutions for genocide have been brought in specially convened international tribunals. Since 2002, the International Criminal Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states. Due to the United States concerns over the ICC, the United States prefers to continue to use specially convened international tribunals for such investigations and potential prosecutions.Statement by Carolyn Willson, Minister Counselor for International Legal Affairs, on the Report of the ICC, in the UN General Assembyy(PDF) November 23 2005

Nuremberg Trials
''Main article Nuremberg Trials

The Nuremberg Trials is the general name for two sets of trials of Nazis involved in World War II and the Holocaust. The trials were held in the German city of Nuremberg from 1945 to 1949 at the Nuremberg Palace of Justice . The first and more famous of these trials was the Trial of the Major War Criminals Before the International Military Tribunal or IMT, which tried 24 of the most important captured (or still believed to be alive) leaders of Nazi Germany. It was held from November 20, 1945 to October 1, 1946.

Former Yugoslavia

The International Criminal Tribunal for the Former Yugoslavia (ICTY) is a court under the auspices of the United Nations for the prosecution of genocide and certain other types of crime committed in former Yugoslavia since 1991. The tribunal functions as an ad-hoc court and is located in The Hague. It was established by Resolution 827 of the UN Security Council, which was passed on May 25, 1993.

Some of those found guilty of Genocide or crimes against humanity are:

  • Milan Babić (deceased), Krajina Serb , prime minister of Republika Srpska Krajina (Serb self proclaimed entity in Croatia); sentenced to thirteen years for his part in ethnic cleansing.
  • Vidoje Blagojevic, Bosnian Serb, a Bosnian Serb Army officer, sentenced to 18 years for involvement in the Srebrenica massacre.
  • Dragan Jokic, Bosnian Serb, sentenced to 9 years for involvement in Srebrenica massacre.
  • Radislav Krstic, Bosnian Serb, Bosnian Serb Army general; sentenced to thirty-five years (originally forty-six years) for genocide, crimes against humanity and violations of the laws or customs of war.

Rwanda
''Main article Rwandan Genocide

The International Criminal Tribunal for Rwanda (ICTR) is a court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide which occurred there during April, 1994, commencing on April 6. The ICTR was created on November 8, 1994 by the Security Council of the United Nations in order to judge those people responsible for the acts of genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between January 1 and December 31, 1994.

So far, the ICTR has finished nineteen trials and convicted twenty five accused persons. Another twenty five persons are still on trial. Nineteen are awaiting trial in detention. Ten are still at large. The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty.These figures need revising they are from the ICTR page which says see www.ictr.org

Genocide as a crime under domestic law

Belgium

In 1993 Belgium had adopted universal jurisdiction, allowing prosecution of genocide, committed by anybody in the world. The practice was widely applauded by many human rights groups, because it made legal action possible to perpetrators who did not have a direct link with Belgium, and whose victims were not Belgian citizens or residents. Ten years later in 2003, Belgium repealed the law on universal jurisdiction. However, some cases which had already started continued. These incuded those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré. Belgium: Universal Jurisdiction Law Repealed web page on Human Rights Watch August 1, 2003

Finland

Genocide has been criminalized as a separate crime in Finland since 1995 and carries a penalty from 4 years to life sentenceFinnish Penal Code, Chapter 11, Sections 6-8 on Genocide, Preparation for Genocide and Ethnic Agitation. Attempted genocide or planning it are punishable. Genocide, as a number of other crimes of international nature is inside Finnish universal jurisdiction, but under Chapter 1, Section 12 of the Penal Code, incidents of it abroad may not be investigated unless the Prosecutor General gives an order to do this. Universal jurisdiction in the European Union(PDF) published by The Redress Trust Registered Charity Number 1015787, A Limited Company in England Number 2274071

The pressure group "Falun Dafa in Europe" on their website report that in 2003 "the Finnish human right lawyer Mr. Erkki Kannsto filed a criminal lawsuit against Luo Gan with the National Criminal Prosecutor Office and the Police Department in Helsinki on September 11 2003, on the charges of “cruel torture” and “genocide.” ... The Finnish Office of the Prosecutor General and the Police Department immediately carried out an investigation into the case after accepting the lawsuit"Luo Gan Faced a Criminal Lawsuit in Finland 16 September 2003 . However, Luo Gan returned to China before any further action was taken by Finnish authorities.

France

In December 2005 despite attempts by the French Defence Ministry to stop him, Jacques Baillet the prosecutor at the army tribunal, has begun an investigation into the role of the French army during the genocide in Rwanda. The 2,500 member French peace keeping force, that was sent to Rwanda in 1994 by François Mitterrand who was the French President at the time, is accused not only of not stopping the genocide, but of actively participating in it. The allegations of participation are brought by two witnesses who the prosecutor thinks are credible enough to warrant an inquiry. Aurea Mukakalisa says she saw Hutu militia enter a camp set up by the French army and designated Tutsis who were forced to leave the camp by French soldiers. She says that she saw militia kill the Tutsis who left the camp and that some Tutsis were killed by French soldiers. A second witness Innocent Gisanura says that French soldiers remained in their vehicles and did not intervene in the killing of Tutsis by members of the Hutu militia in the Biserero forests.French Army faces inquiry on genocide in Rwanda by Adam Sage in The Times 26 December 2005

Netherlands

Dutch law restricts prosecutions for genocide to its nationals. On December 23 2005 a Dutch court ruled in a case brought against Frans van Anraat for supplying chemicals to Iraq, that "thinks and considers legally and convincingly proven that the Kurdish population meets the requirement under the genocide conventions as an ethnic group. The court has no other conclusion that these attacks were committed with the intent to destroy the Kurdish population of Iraq." and because he supplied the chemicals before 16 March 1988, the date of the Halabja poison gas attack, he is guilty of a war crime but not guilty of complicity in genocide.[http://news.independent.co.uk/europe/article334972.ece Dutch court says gassing of Iraqi Kurds was 'genocide' by Anne Penketh and Robert Verkaik in The Independent December 24 2005Dutch man sentenced for role in gassing death of Kurds CBC December 23 2005

Spain

Under Spanish law, judges have the right to try foreigners suspected of genocidal acts that have taken place outside Spain. In June 2003 Spanish Judge Baltasar Garzón jailed Ricardo Miguel Cavallo, (also known as Miguel Angel Cavallo), a former Argentine naval officer, extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina's military dictatorship.Spanish Judge Sends Argentine to Prison on Genocide Charge by Emma Daly New York Times 30 June 2003. Profile: Judge Baltasar Garzon BBC 26 September 2005

On 11 January 2006 it was reported that the Spanish High Court will investigate whether seven former Chinese officials, including the former President of China Jiang Zemin and former Prime Minister Li Peng participated in a genocide in Tibet. This investigation follows a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals.Spanish courts to investigate if a genocide took place in Tibet.

Sweden

In Sweden genocide was criminalized in 1964. According to the swedish law any act intended to destroy, in whole or in part, a national, ethnic, racial or religious group, as such, and which is punished according to the criminal act is punished as genocide and carries a penalty from 4 years to life sentence. The swedish legislation simply noticed that any severe common crime which is comitted in order to destroy an ethnic group can be considered genocide, no matter what specific crime it is. Also intent, preparation or conspiring to genocide, and also failure to reveal such a crime is punishable as specified in penal code chapter 23, which is applicable to all crimes. *

United Kingdom

The United Kingdom has incorporated the International Criminal Court Act into domestic law. It is not retroactive so it only applies to events after May 2001 and genocide charges can only be filed against British nationals and residents. According to Peter Carter QC, chairman of the Bar's human rights committeeBar Human Rights Committee "is the international human rights arm of the Bar of England and Wales. It is an independent body primarily concerned with the protection of the rights of advocates and judges around the world." "It means that British mercenaries who support regimes that commit war crimes can expect prosecution".

Genocide in history

Genocide appears to be a regular and widespread event in the history of civilization. The phrase "never again" or "not on our watch" is often used in relation to genocide has been contradicted up to the present day.

Determining which historical events constitute genocide and which are merely criminal or inhuman behavior is not a clear-cut matter. Furthermore, in nearly every case where accusations of genocide have circulated, partisans of various sides have fiercely disputed the interpretation and details of the event, often to the point of promoting wildly different versions of the facts. An accusation of genocide is certainly not taken lightly and will almost always be controversial. Revisionist attempts to deny genocides is, in some countries, penally repressed.

Stages of genocide and efforts to prevent it

According to President of Genocide Watch, Gregory Stanton, genocide develops in eight stages that are "predictable but not inexorable". The FBI has found somewhat similar stages for hate groups.

It is worth noting that while some governments follow certain of the "recommendations" below, in other jurisdictions they are actually illegal. For instance, in the United States, the First Amendment forbids the banning of so-called "hate speech".

Stage Characteristics Preventive measures
1.
Classification 		People are divided into "us and them". "The main preventive measure at this early stage is to develop universalistic institutions that transcend... divisions."
2.
Symbolization 		"When combined with hatred, symbols may be forced upon unwilling members of pariah groups..." "To combat symbolization, hate symbols can be legally forbidden… as can hate speech".
3.
Dehumanization 		"Dehumanization overcomes the normal human revulsion against murder." "Hate propaganda should be banned, hate crimes and atrocities should be promptly punished."
4.
Organization 		"Genocide is always organized... Special army units or militias are often trained and armed..." "To combat this stage, membership in these militias should be outlawed."
5.
Polarization 		"Hate groups broadcast polarizing propaganda..." "Prevention may mean security protection for moderate leaders or assistance to human rights groups..."
6.
Identification 		"Victims are identified and separated out because of their ethnic or religious identity..." "At this stage, a Genocide Alert must be called..."
7.
Extermination 		"It is "extermination" to the killers because they do not believe their victims to be fully human." "At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection."
8.
Denial 		"The perpetrators... deny that they committed any crimes..." "The response to denial is punishment by an international tribunal or national courts."

See also

Bibliography

  • Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies, Yale University Press, 1990
  • Israel W. Charny, Encyclopedia of Genocide, ABC-Clio Inc, 720 pages, ISBN 0874369282 (December 1, 1999)
  • Barbara Harff, Early Warning of Communal Conflict and Genocide: Linking Empirical Research to International Responses, Westview Press, August 2003, paperback, 256 pages, ISBN 0813398401
  • LeCour Grandmaison, Olivier, Coloniser, Exterminer - Sur la guerre et l'Etat colonial, Fayard, 2005, ISBN 35251692005 (Table of contents)
  • Samantha Power, America and the Age of Genocide Harper Perennial (2003) paperback, 656 pages ISBN 0060541644
  • R.J. Rummel, Death By Government, Transaction Publishers, 496 pages, ISBN 1560009276 (March 1997)
  • Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation , Kluwer (1997) 508 p. (ISBN 9041104720)
  • Lyal S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations, Nijhoff (1992) 252 p. (ISBN 0792314530)
  • Samuel Totten, William S. Parsons, and Israel W. Charny, Century of Genocide: Critical Essays and Eyewitness Accounts, 2nd edition, Routledge, 2004
  • Benjamin A. Valentino, Final Solutions: Mass Killing and Genocide in the 20th Century, Cornell University Press, 2004

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