AN APPRAISAL OF THE CRIME OF GENOCIDE UNDER INTERNATIONAL LAW: THE ROLE OF THE ICC IN COMBATTING THE OFFENCE

CHAPTER ONE

 GENERAL INTRODUCTION

The crime of genocide has a long history, and the offence was often known as a crime without a name until the Polish-Jewish lawyer, Raphael Lemkin, came out with the name ‘genocide’ to describe the offence. The conducts that constitute the offence are varied and are mostly related to extermination of a protected group. Genocide is said to be crime against human diversity as it is aimed against a protected national, racial, ethnic or religious group. The offence is regulated under the Geneva Genocide Convention of 1949 and has also been introduced as a crime within the statute of the ICC. The ICC has a mandate to combat international crimes of the most heinous nature, among which is genocide. This chapter unravels the history and evolution of the concept of genocide in the background to the study, discusses the problem that necessitated the research as well as the research questions and objectives. It also reviews the literature that informs the study and the corresponding theories, among others.

BACKGROUND TO STUDY

According to United Nations General Assembly Resolution 96(I), “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.”[1]

Genocide can be defined as an internationally recognized crime where acts are committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.[2] These acts fall into five categories which includes: 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; Forcibly transferring children of the group to another group.

Under Article 2 of the Genocide Convention, the crime of genocide will be considered committed if two distinct elements are simultaneously present: firstly the intent to destroy in whole or in part a national, ethnic, racial or religious group, secondly, the execution of the prohibited act against any protected group. In legal terms, these are the mense rea and actus reus. The requirement of the intent to destroy, in whole or in part, a protected group as such marks the specificity of the crime and explains, if correctly interpreted, its status as a crime under international law. The considerable complexity of the special genocidal intent requirement results from the fact that all its components raise difficult issues of interpretation which are now dealt with in turn. In one of the first judgments of an international criminal court on the crime of genocide, in Prosecutor v. Kambanda, a Trial Chamber of the ICTR stated:

“The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent to destroy in whole or in part, a national, ethnic, racial or religious group as such; hence the Chamber is of the opinion that genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence.”[3]

There are a number of other serious, violent crimes that do not fall under the specific definition of genocide. They include crimes against humanity, war crimes, ethnic cleansing, and mass killing.

The concept of genocide traces its origin only 1944 coined by a Polish-Jewish lawyer named Raphael Lemkin (1900–1959) who sought to describe Nazi policies of systematic murder during the Holocaust, including the destruction of European Jews.[4] He formed the word genocide by combining geno-, from the Greek word for race or tribe, with -cide, from the Latin word for killing. 

As far as recognizing the crime of genocide in the international stage is concerned, it was on December 9, 1948, the United Nations approved a written international agreement known as the Convention on the Prevention and Punishment of the Crime of Genocide.[5] This convention established genocide as an international crime, which signatory nations undertake to prevent and punish. Preventing genocide, the other major obligation of the convention, remains a challenge that nations, institutions, and individuals continue to face.

The Armenian Genocide which is sometimes referred to as the first genocide of the 20^th saw the annihilation of roughly 664,000 to 1.2 million Armenian Christians living in the Ottoman Empire from spring 2015 to autumn 1916.[6] History has it that on the eve of World War I, there were two million Armenians in the declining Ottoman Empire. By 1922, there were fewer than 400,000. The others — some 1.5 million — were killed in what historians consider a genocide.[7]

As David Fromkin put it after the WWI, “Rape and beating were commonplace. Those who were not killed at once were driven through mountains and deserts without food, drink or shelter. Hundreds of thousands of Armenians eventually succumbed or were killed.”[8]

Wichert ten Have and Barbara Boender note that the deliberate and systematic destruction of an entire people or ethnic group has been called the crime of all crimes. They goes ahead to stressed that even though the world is unable to comprehend this barbaric acts, mass violence has always been a part of the history of mankind, hence  the 20th and 21st centuries have even seen the worst episodes of mass violence, despite all pretensions of civilization.[9]

The Holocaust which is considered as most barbaric was the systematic, bureaucratic annihilation of six million Jews by the Nazi regime and their collaborators as a central act of state during World War II. In 1933 approximately nine million Jews lived in the 21 countries of Europe that would be occupied by Germany during the war. By 1945 two out of every three European Jews had been killed. Although Jews were the primary victims, hundreds of thousands of Roma (Gypsies) and at least 250,000 mentally or physically disabled persons were also victims of Nazi genocide. As Nazi tyranny spread across Europe from 1933 to 1945, millions of other innocent people were persecuted and murdered. More than three million Soviet prisoners of war were killed because of their nationality. Poles, as well as other Slavs, were targeted for slave labor, and as a result, almost two million perished. Homosexuals and others deemed “anti-social” were also persecuted and often murdered. In addition, thousands of political and religious dissidents such as communists, socialists, trade unionists, and Jehovah’s Witnesses were persecuted for their beliefs and behavior and many of these individuals died as a result of maltreatment. Furthermore one cannot but think of the Cambodian genocide of 1975-79, in which about two million people—roughly a quarter of Cambodia’s population—died at the hands of the Khmer Rouge, a regime that ruled Cambodia under the leadership of Marxist dictator Pol Pot.

The “Rwandan Genocide” refers to the 1994 mass slaughter in Rwanda of the ethnic Tutsi and politically moderate Hutu peoples. The killings began in early April of 1994 and continued for approximately one hundred days until the “Hutu Power” movement’s defeat in mid-July. The genocide was carried out primarily by Hutu supremacist militia groups, co-perpetrated by the state government of Rwanda, the Rwandan Army, and Rwandan civilians in compliance with the “Hutu Power” movement.[10] By its conclusion, at least 500,000 ethnic Tutsis were murdered, along with thousands of Tutsi sympathizers, moderate Hutus, and other victims of atrocity. Some estimates claim anywhere between 800,000- 1,000,000 killed, with another 2 million refugees (mostly Hutus fearing the retribution of the newly-empowered Tutsi rebel government) packed in disease-ridden refugee camps of neighboring Burundi, Tanzania, Uganda, and former Zaire.[11]

The above few cases do not exhaust the list of genocides the world has experienced. These have been highlighted for study purposes.

In1948, the United Nations adopted Lemkin’s definition in to the Convention on the Prevention and Punishment of the Crime of Genocide (herein named after as the “Genocide Convention”) whereupon the 55^th Plenary Meeting of the General Assembly, under Resolution 96(1)[12] went ahead to codify the Convention that established a non-exhaustive list of protected groups. This became the first codification exercise of a customary law in regards to the crime of genocide.

After fifty years of existence, the Convention had now mellowed and became a rallying call to the states which now actively agitated to have an international court to prosecute offenders on international crimes. Between 15^th to the 17^th of June 1998, the United Nations’ Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was signed in Rome, Italy (which came to be referred as the “Rome Statute” and based at The Hague in Holland)[13] by more than two thirds of world states. However, owing to unease by majority of the states by the constrictive stranglehold the world superpowers upon the United Nations, and its enforcement arm, the Security Council, many of these nations advocated for autonomy of the International Criminal Court to safeguard it against interference by the same states.

A major milestone in the existence of the court has been the constitution of the International Criminal Tribunal for former Yugoslavia (ICTY)[14] in 1993, and the International Criminal Tribunal for Rwanda (ICTR)[15] in 1994. These tribunals were respectively set up, under the auspices of the UN Security Council, to prosecute the perpetrators of the war crimes against the civilian populations of both countries. There have been other internationalized tribunals set up in Cambodia[16], Sierra Leone[17] and Lebanon[18], which have used some hybrid systems between the international and national jurisdictions to prosecute the offenders of international crimes.

The provisions of the ICC’s interference in the crime of Genocide and other crimes against humanity are clearly stated in the Roman Statute.[19] After lengthy negotiations at the Rome Conference, 120 states voted to adopt the Statute of the ICC. The ICC’s founding treaty shapes every aspect of its work, though sometimes in ways Rome negotiators did not expect.

The ICC seems to be a new kind of court given that it is distinct from its predecessors. The Nuremberg and Tokyo tribunals were created by the victors of World War Two and the ad hoc tribunals were set up by the UNSC. These tribunals were envisioned as temporary institutions with limited temporal and geographic jurisdiction. With the exception of ICTY, these tribunals all prosecuted violence committed before the courts were established. In contrast, the ICC was founded by an international treaty as a permanent institution to hold government officials, military leaders and non-state groups accountable for their future behaviour. Unlike previous international war crimes tribunals, an independent ICC prosecutor determines which situations (regions) come before the Court.

During the Rome Conference, participants painstakingly negotiated which kinds of crimes could come before the ICC and the ways that investigations could be triggered. The ICC has jurisdiction over the crime of genocide under Article 6 of the Rome Statute, which reiterates the term used in the 1946 Convention on the Prevention and Punishment of the Crime of Genocide. The crime comprises of acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.[20] These acts fall into five categories which includes: 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; Forcibly transferring children of the group to another group. This thesis aims at unravelling the nature of the offence and the role played by the ICC in combatting it.

STATEMENT OF THE PROBLEM

The definition of genocide is well articulated in a number of conventions including the 1949 Genocide Convention and the statute of the ICC with defined ingredients and features. Despite  the absence of ambiguity in the definition of Genocide, there have been differences among states in calling out incidents of genocide, which may suggest either that there is lack of clarity in the definition or that political considerations often come into play in calling out the offence. For example, although the genocide in Rwanda aligned directly with several aspects of the definition of genocide used by the United Nations, the United Nations was hesitant to label it.  “The United States had little interest in Rwanda, which was strategically unimportant. It did not want to send in its own troops, and it did not want to fund yet another expanded peacekeeping operation with a much more robust enforcement mandate and the UK, too, was little interested”[21].As we look at power structures of the United Nations, we can determine how politicized interests can be, even in regards to humanitarian aid, international peace, and security. Yet they were unable to eradicate the conduct of genocide by their inability to term what happened in Rwanda as genocide. There are so many examples of situations where disagreements have occurred between states whether a particular conduct amounted to genocide or not. For example, the Armenian Genocide of 1915-1916 is significant for having been the first major genocide of the twentieth century. However, for more than eight decades, its occurrence has been denied by the successive Turkish governments with defiance and often truculence. The conditions which helped create and sustain this culture of denial deserve special attention for they demonstrate how easily a nation can shift gears and reverse its position.[22]

Moreover, despite the fact that the offence is prohibited under the ICC statute, in reality there are indications to suggest that the offence still occurs perhaps in subtle forms indicating failure by the ICC to eradicate the conduct. For example, the Uighur situation in China, where China’s suppression of Uighurs, Kazakhs and other chiefly Muslim ethnic minorities in North China meets the United Nations definition of genocide, mass sterilization, forced abortions and mandatory birth control part of a campaign that has swept up more than 1.5million people. Also some pundits have labeled the crisis in the Anglophone Cameroon as genocide because, it meets the United Nations definition of genocide. For example, Belo is on the frontline of Cameroon’s simmering conflict between Anglophone and francophone, an increasingly secessionist struggle that has pitted the French-speaking government in Yaoundé against the recently emerged Anglophone Ambazonia Defense Force (ADF) and other rebel groups. According to the UN, the fighting has forced more than 20, 0000 Cameroonians to flee to Nigeria. Many more people forced from their homes remain in the country. [23] This examples have not been given wider publicity although wide-spread killings have occurred of these particular groups.

RESEARCH QUESTIONS

General Research Question

• What is the offence of genocide under international law and to what extent has the ICC succeeded in combating it?
  • Specific Research Questions
• What is the crime of genocide under international law?
• What are the legal and regulatory framework for the offence of genocide under International Law?
• To what extent has the ICC succeeded in combating genocide under International Law?
• What policy recommendations should be provided to enable the ICC better address the offence under International Law?

RESEARCH OBJECTIVES

General Objective

• To review the offence of genocide under international law and the extent to which the ICC has succeeded in combating it.
  • Specific Objectives
• To examine the crime of genocide under international law
• To examine the legal and regulatory framework for the offence of genocide under International Law
• To analyze the extent to which the ICC has succeeded in combating genocide under International Law.

To make policy recommendations which can enable the ICC to better address the offence of genocide under International Law.

[1] United Nations General Assembly Resolution 96(I) (1946), Available online at: https://www.refworld.org/docid/3b00f09753.html accessed on 11/12/1946  (accessed on 15 June 2021).

FURTHER READINGS: LAW PROJECT TOPICS WITH MATERIALS