Author Profile

Harpreet Lakhanpal

LL.M- IInd Year, Rajiv Gandhi University of Law, Patiala (Punjab)

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Introduction

Genocide is not a wild beast or a natural disaster. It is mass murder deliberately planned and carried out by individuals, all of whom are responsible whether they made the plan, gave the order or carried out the killings. Whatever its scale, genocide is made up of individual acts, and individual choices to perform them. So human individuals need to make the commitment, as early in life as possible, that they will have no truck with it. To do that, the way genocide becomes possible has to be understood.

The fact of genocide is as old as humanity. The acts of genocide committed during the Second World War shocked the whole mankind so much so that the General Assembly in its first meeting affirmed the principles enunciated in Nuremberg judgment. Besides this, in its resolution 96 (1), dated December 11, 1946, the General Assembly declared that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”. The main cause of such keen interest by the General Assembly in its first session was the Nazi atrocities including the acts of genocide committed by the Germans during the Second World War. The General Assembly did not rest contended with this, but went ahead to adopt unanimously on December 9, 1948, the Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention came into force on January 12, 1951. By 5th January, 2011 Genocide Convention has been ratified by 140 states parties . In imposing its first sentence in Prosecutor vs. Kambanda, the International Criminal Tribunal for Rwanda described genocide as the ‘crime of crimes’ .

 

 

 

Meaning of Genocide

The term ‘Genocide’ was coined by Raphel Lemkin (1900–1959), a Polish-Jewish legal scholar, in his 1944 work, “Axis Rule in Occupied Europe” It is derived from the Latin “gens, gentis,” meaning “tribe, clan, or race,” or the Greek root génos (γÝνος) (family, tribe or race – gene); secondly from Latin -cide (occido—to massacre, kill).

Definition of Genocide-

Article II of the Genocide Convention defines ‘genocide’ in the following words:

“In the present convention, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious groups, as such:

a) Killing members of the group;

b) Causing serious bodily harm to members of the groups;

c) 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;

d) Imposing measures intended to prevent births within the group;

e) Forcibly transferring children of the group to another group .

 

1. Killing

Article 6(a) of the ICC Statute requires the perpetrator to have caused the death of at least one member of the group.

2. Causing Serious Bodily or Mental Harm

Article 6(b) of the ICC Statute requires the perpetrator to have caused serious bodily or mental harm to at least one member of the group. Serious bodily harm means serious damage to health, causing disfigurement and serious injuries to external and internal organs or senses. Causing serious mental harm does not require a physical attack or any physical effects of mental harm. It does not require that the harm be permanent or irreversible. It must involve damage “those results ability to lead a normal and constructive life .

Inflicting Conditions of Life

Article 6(c) of the ICC Statute covers the infliction of conditions of life on a group that are calculated to bring about its physical destruction, in whole or in part. The provision prohibits so-called slow death measures- that is, conduct that does not immediately kill, but that can (and is intended to bring) bring about the death of group members over so long term. The conditions of life must only be calculated to physically exterminate part of the group; thus the death of individual members as a result is not a necessary element of the crime. The subjective requirement “deliberately” makes it clear that the perpetrator must employ the conduct as a means to physically exterminate the group. No requirement of prior planning can be derived from these criteria.

3. Imposing measures intended to prevent births within the group

Article 6(d) of the ICC Statute encompasses the imposition of measures aimed at preventing births within the group and thereby targeting its continued biological existence. This conduct includes, for example, sterilization, forces birth control, prohibition on marriage and segregation of the sexes. The measures imposed must be forcible; merely permitting abortions is not sufficient.

4. Forcibly Transferring Children

Article 6(e) of the ICC Statute comprises the forcible transfer of children from one group to another group. This encompasses permanent transfer done with the specific intent of destroying the group’s existence. When transferred to another group, children cannot grow up as part of their group or they become estranged from their cultural identity. According to the Elements of Crimes for Article 6(e), children as referred to in the definition are members of the group under 18 years of age. The transfer must be forcible and can be physical or psychological.

Since 1948, elements of the Convention and specifically its definition of the crime of genocide have been incorporated in the statutes of the two ad hoc tribunals created by the Security Council to judge those accused of genocide and other crimes in the former Yugoslavia and Rwanda. Affirming its enduring authority, the Convention definition was included without any modification in the Rome Statute of the International Criminal Court, which was adopted on 17 July 1998 and entered into force on 1 July 2002. Article 6 of the Rome Statute of International Criminal Court also deals with same definition of genocide .

The prohibition of genocide is closely related to the right to life, one of the fundamental human rights defined in international declarations and conventions.

 

Genocide a crime under International law and Punishment thereof-

 

In

Barcelona Traction Light and Power Co. case (Belgium v. Spain)

I.C.J Reports 1970, p.549

speaking about the obligations of a State when it admits into its territory foreign investments or foreign nationals, the International Court of Justice observed, “such obligations derive, for example, in contemporary international law, from the out-lawing acts of aggression and of genocide as also from the principles and rules concerning the basic rights of human being, including protection from slavery and racial discrimination”.

Article I of the Genocide Convention provides that the contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which undertakes to prevent and punish.

Under Article III of the Convention following acts are punishable:

a) Genocide;

b) Conspiracy to commit genocide;

c) Direct and public incitement to commit genocide;

d) Attempt to commit genocide;

e) Complicity in genocide.

Article IV of the Genocide Convention provides that persons committing genocide or any of the other acts enumerated in Article III shall be punished whether they are constitutionally responsible rulers, public officials, or private individuals.

 

Shortcomings of Genocide Convention, 1948

The Convention definition of Genocide has seemed to too restrictive. It has failed to cover, in a clear and unambiguous manner, many of the major human rights violations and mass killings pretreated by dictators and their accomplices. The principal deficiency is that it applies only to ‘national, racial, ethnical and religious groups’ .

 

Elements of Genocide

Material Elements

1. Protected Groups

Only group constituted through “national”, “ethnic”, “racial” or “religious” are protected under the definition of crime. This list is exclusive; the drafters of the Genocide Convention purposely limited Article II to protection of the four named groups. Common to the protected group is the fact that group membership is generally determined by birth and is of a permanent and stable nature.

Criteria for Group Classification:

The common criteria is common customs, language or religion or visible characteristics such as skin colour or stature. But it’s also possible to see group characteristics subjectively and rely on social ascription processes- that is, a group’s self-perception or its perception by others as national, ethnic, racial or religious groups.

1. National Groups

It includes a person who has nationality of that particular state and other elements can be included like common language, history, customs and culture.

2. Ethnic Groups

An ethnic group is a group of humans whose members identify with each other, through a common heritage that is real or presumed. Ethnic identity is further marked by the recognition from others of a group’s distinctiveness and the recognition of common cultural, linguistic, religious, behavioural traits as indicators of contrast to other groups. Ethnicity is an important means through which people can identify themselves. Some believed that ethnic groups were a subcategory of national groups; another believed that the concept of ethnicity was identical with that of race. An ethnic group is distinguished in particular by a specific cultural tradition and a common history. The members of the group speak the same language, have the same customs and traditions and share a common way of life.

3. Racial Groups

Racial groups includes members exhibit the same inherited, visible physical traits, such as skin colour or physical stature.

4. Religious Groups

Religion can also be one of very important factor for committing of genocide. Religious groups such as Hinduism, Islam, Christianity, Sikhism etc.have their own religious procedure, belief and traditions. All groups have different spiritual paradigm, faith and spiritual ideas .

 

Physical element or Actus Reus of Genocide

Criminal law analysis of an offence proceeds from a basic distinction between the physical element (actus reus) and the mental element (mens rea). The prosecution must prove specific material facts, but must also establish the acuused’s criminal intent or ‘guilty mind’: actus nonfacit reum nisi mens sit rea.

The definition of genocide in the 1948 Convention separates the two elements. The initial phrase of Article II addresses the mens rea of the crime of genocide, that is, ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The five sub- paragraphs of Article II list the criminal acts or actus reus .

The term ‘acts’ is also used in Article III of the Convention, but in different context. Article III of the Convention deals essentially with criminal participation, and provides for liability of individuals other than the principal offenders, such as accomplices, as well as for incomplete or inchoate offences, such as attempts and conspiracy, where there is no principal offender at all, because the ultimate crime never takes place .

The expression ‘acts of genocide’ appears only once in the Convention, in Article VIII, a provision addressing the rights of States parties to submit cases to the relevant bodies of the United Nations. The security Council referred to ‘acts of genocide’ in the Resolution 925 adopted on 8 June, 1994 with respect to Rwanda, the first time in its history that it used the word ‘genocide’ in are solution. Three of the five acts defined in Article II of the Convention require proof of a result: killing members of the group; causing serious bodily or mental harm to members of the group; forcibly transferring children of the group to the group. Two of the acts do not demand such proof, but require a further specific intent: deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in pat; or imposing measures intended to prevent births within the group. In the three cases, where the outcome is an element of the offence, the accused may still be subject to prosecution for attempting to commit the crime even if no result can be proven. Proof of a crime of result also requires evidence that the act itself is a ‘substantial cause’ of the outcome. The actus reus of an offence may be either an act of commission or an act of omission. This principle applies to all of the acts of genocide enumerated in Article II, including killing. The most obvious act of genocide by omission is Article II (c): ‘deliberately imposing conditions of life designed to destroy the group’. But omission can also apply to other paragraphs of Article II, as the International Criminal Tribunal for Rwanda noted in the Kambanda judgment .

A Trial Chamber of the International Criminal Tribunal for Rwanda in Akayesu identified two material elements; the victim is dead; and the death resulted from an unfaithful act or omission of the accused or a subordinate .

Mental Element or Mens Rea of Genocide

Even where an act itself appears criminal, if it was purely accidental, or committed in absence of intent to do harm or knowledge of the circumstances, then the accused is innocent. According to Lord Goddard, ‘the court should not find a man guilty of an offence against criminal law unless he has a guilty mind’.

The core offences of Article II, killing (article II (a)) and serious assault (article II(b)), are punishable under all domestic penal codes. The drafters of the Rome Statue of the International Criminal Court were the first to attempt a codification of the mental element of serious international crimes, including genocide. Article 30 of the Statute declares that the mens rea of genocide has two components, knowledge and intent

According to Article 30,’ a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of event’ .

Knowledge of a plan or policy will be decisive in establishing the guilt or innocence of an accused, regardless of whether courts deem such a plan or policy to be intent in a formal sense. The existence of a plan or policy has also proven decisive when the analysis shifts from individual criminal liability to State responsibility. The International Commission of Inquiry on Dafur concluded that the government of Sudan has not pursued a policy of genocide in answering the Security Council’s question whether genocide had been committed.

The accused must also have knowledge of the consequences of his or her act in the ordinary course of events. If the genocidal act is killing, then the consequence with death and the accused must be aware that this will indeed result or at least be reckless as to the act’s occurrence. In order to meet the standard of knowledge required for mens rea, it may also be sufficient for the prosecution to demonstrate that the accused was reckless as to the consequences.

An isolated sentence in the Akayesu judgment of the International Criminal Tribunal for Rwanda refers to this aspect of the knowledge requirement: ‘The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group’. This is sometimes described as indirect intent.

Intent is a logical deduction that flows from evidence of the material acts. Criminal law presumes that an individual intends the consequences of his or her acts, in effect deducing the existence of the mens rea from proof of the physical act itself. The specific intent necessary for a conviction of genocide is even more demanding than that required for murder. If the accused accompanied or preceded the act with some sort of genocidal declaration or speech, its content may assist in establishing the specific intent. Factors that may establish intent include the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, or the repetition of destructive and discriminatory acts.

 

Early developments in the prosecution of genocide

The origins of criminal prosecution of genocide begin with the recognition that persecution of ethnic, national and religious minorities was not only morally outrageous; it might also incur legal liability. As a general rule, genocide involves violent crimes against the person, including murder.

The new world order that emerged in the aftermath of the First World War and that to some extent was reflected in the 1919 peace treaties manifested a growing role for the international protection of human rights. Two aspects of the post-war regime are of particular relevance to study of genocide;

First, the need for special protection of national minorities was recognized. The World also saw the first serious attempts at the internationalization of criminal prosecution, accompanied by the suggestion that massacres of ethnic minorities within a State’s own borders might give rise to both State and individual responsibility. After the adoption of the Genocide Convention, the United States government told the International Court of Justice that ‘the Turkish massacres of Armenians’ were one of the ‘outstanding examples of the crime of genocide’ .

Genocide is an organized and not a spontaneous crime .

Adolf Eichmann was the first person to be accused of Genocide pursuant to provisions drawn from the. Genocide Convention. The element of state plan was considered by the District Court of Jerusalem, because Eichmann was convicted of genocide only for acts committed after June 1941, that is, when he was made aware of the plan for a ‘final solution’. Since he was, from that date ‘privy to the extermination secret’, it was clear that his intention was, from then on, ‘the total biological extermination of the entire Jewish People’. The knowledge of the plan shows that he had the requisite ‘intent to destroy the group’ qualifying his acts as genocide

 

Prosecution of Genocide by International and Domestic Tribunals

Genocide may be prosecuted by international or national courts. The principal of ‘complementarity’ which defines the operations of the International Criminal Court, established in 2002 following the entry into force of the Rome Statute. Pursuant to this principle, genocide offenders are, preferably, to be tried before domestic or national courts. Only when these fail should the international jurisdiction become operational.

Article V of the Genocide Convention requires States to implement their obligations in domestic law, specifically by providing for trial and punishment of those responsible for thecrime.

 

Example of Genocides on International Level

1. Genocide in Bangladesh

The military regime of Pakistan under General Tikka Khan has committed incalculable and unprecedented acts of genocide in Bangladesh. As pointed out by M.K. Nawaz, “The Bengali people have a language and culture different from the people of the West Pakistan and can accordingly be considered as ethnic group within the meaning of Article II of Genocide Convention. That’s why the genocide committed by the Pakistani military personnel in Bangladesh is clearly and without a shade of doubt an international crime” .

2. Genocide in Bosnia and Herzegovina

The Convention on Genocide has been invoked by then the Republic of Bosnia Herzegovina on March 20, 1993, when it filed an application before the International Court of Justice instituting proceedings against Yugoslavia for violating the Genocide Convention. The application stated that a series of events in Bosnia-Herzegovina from April 1992 up to the date of application amount of acts of genocide within the definition given in the Genocide Convention and that Yugoslavia is fully responsible under International Law for those activities. The International Court of Justice held that Article IX of the Convention on Genocide provided a valid jurisdiction basis. Further, it held that Yugoslavia should take all measures within its power to prevent commission of the crime of genocide and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention and punishment of crime of genocide or render it more difficult of solution . In the Republic of Bosnia-Herzegovina, conflict between the three main groups- the Serbs, Croats and Muslims-resulted in genocide committed by the Serbs against Bosnian Muslims. In the late 1980’s a Serbian named Slobodan Milosevic came to power. In 1992, acts of “ethnic cleansing” started in Bosnia, a mostly Muslim country, where the Serb minority made up only 32% of the population. Milosevic responded to Bosnia’s declaration of independence by attacking Sarajevo, where Serb snipers shot down civilians. The Bosnian Muslims were outgunned and the Serbs continued to gain ground. They systematically round up local Muslims and committed acts of mass murder, deported men and boys to concentration camps and forced repopulation of entire towns. Over 200,000 Muslim families were systematically murdered and 2,000,000 became refugees at the hands of the Serbs. The Convention has been invoked by then the Republic of Bosnia Herzegovina on March 20, 1993, when it filed an application before the International Court of Justice instituting proceedings against Yugoslavia for violating the Genocide Convention. The application stated that a series of events in Bosnia-Herzegovina from April 1992 up to the date of application amount of acts of genocide within the definition given in the Genocide Convention and that Yugoslavia is fully responsible under International Law for those activities. In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide. The International Court of Justice held that Article IX of the Convention on Genocide provided a valid jurisdiction basis. Further, it held that Yugoslavia should take all measures within its power to prevent commission of the crime of genocide and should ensure that no action is taken which may aggravate or extend the existing dispute over the prevention and punishment of crime of genocide or render it more difficult of solution. On 26 February, 2007 the International Court of Justice (ICJ) upheld the ICTY’s earlier finding and also found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.

 

3. Genocide in Rwanda

In order to prosecute persons responsible for genocide and other violations of international humanitarian law committed in Rwanda and Rwandan citizens responsible for genocide, in neighbouring States, the Security Council on November 8, 1994 decided to establish an International Tribunal. The Council also adopted the Statute of the International Tribunal for Rwanda which is annexed to the resolution. The International Tribunal for Rwanda, in the first ever judgment by an international tribunal for the crime of genocide on September 1998, found Jean-Paul Akayesu-the former Mayor of Taba , guilty of genocide and crimes against humanity. He was found guilty of 9 out of 15 counts on which he was charge as the violations of Article of 3 of the Geneva Convention. The Tribunal o September, 1998 sentenced Jean Kambanda, the former Rwandan Prime Minister to life sentence on six counts of genocide .

 

4. Genocide in Dafur

The Darfur Conflict was a guerrilla conflict or civil war centered on the Darfur region of Sudan. It began in February 2003 when the Sudan Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM) groups in Darfur took up arms, accusing the Sudanese government of oppressing non-Arab Sudanese in favor of Sudanese Arabs. It is also known as the Darfur Genocide.

The genocide in Darfur has claimed 400,000 lives and displaced over 2,500,000 people. More than one hundred people continue to die each day; five thousand die every month. Since February 2003, the Sudanese government in Khartoum and the government-sponsored Janjaweed militia has used rape, displacement, organized starvation, threats against aid workers and mass murder. Violence, disease, and displacement continue to kill thousands of innocent Darfurians every month. In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the report of the International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution.

In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmed Haroun, and a Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes. The Sudan Government said that the ICC had no jurisdiction to try Sudanese citizens and that it would not hand the two men over to authorities in the Hague.

On 14 July 2008, the Prosecutor filed ten charges of war crimes against Sudan’s incumbent President Omar al-Bashir, three counts of genocide, five of crimes against humanity and two of murder. The Prosecutor has claimed that Mr. al-Bashir “masterminded and implemented a plan to destroy in substantial part” three tribal groups in Darfur because of their ethnicity. Leaders from three Darfur tribes are suing ICC prosecutor Luis-Moreno Ocampo for libel, defamation, and igniting hatred and tribalism .

 

Genocide on National Level

1. Genocide in Kashmir

Panun Kashmir Movement (PKM) and the All India Kashmiri Samaj (AIKS) – both the oraganisations, made a complaint before the National Human Rights Commission of India that the Hindu population of the valley of Kashmir, namely Kashmiri Pandits, has been the victims of genocide. Memorandum presented to the Commission on June 7, 19944 asserted that its mass attack on the Hindus began in January 1990 and by the onset of the August 1990 more than 800 of them had been murdered in cold blood. Ethnic cleansing of Hindus has been carried out in accordance with the well-designed plan, including the preparations of ‘hit-lists’ which were even published. After having dealt the definition of genocide as stated in the Geneva Convention of 1948, the Commission dealt the question of the applicability of the Genocide Convention in the present complaint. The Commission stated that no doubt, India has acceded to the Geneva Convention on August, 27, 1959 ,but the killings and ethnic cleansing of the Kashmiri Pandits must been seen in the context of the deeper intent to secure the secession of the State of Jammu and Kashmir. The Commission is therefore constrained to observe that while acts akin to genocide occurred in respect of the Kashmiri Pandits and that indeed, in the minds and utterances of some of the militants a ‘genocide types’ design may exist, the crimes against Kashmiri Pandits, fall short of the ‘Ultimate’ Crime : Genocide .

 

2. Genocide in Gujarat

The 2002 Gujarat violence was a series of incidents including the Godhra train burning and the subsequent communal riots between Hindus and Muslims in the Indian state of Gujarat. On 27 February 2002, the Sabarmati Express train was attacked at Godhra by a large Muslim mob as per a preplanned conspiracy. 58 Hindu pilgrims, mostly women and children returning from Ayodhya, were killed in the attack. This in turn prompted retaliatory attacks against Muslims and general communal riots on a large scale across the state, in which 790 Muslims and 254 Hindus were ultimately killed and 223 more people were reported missing. 523 places of worship were damaged: 298 dargahs, 205 mosques, 17 temples, and 3 churches. Muslim-owned businesses suffered the bulk of the damage. 61,000 Muslims and 10,000 Hindus fled their homes. Preventive arrests of 17,947 Hindus and 3,616 Muslims were made. In total 27,901 Hindus and 7,651 Muslims were arrested. Nearly 10,000 rounds of bullets were fired in police shootings that killed 93 Muslims and 77 Hindus.

The nature of these events remains politically controversial in India. Some commentators have characterized the deaths of Muslims (but not the Hindus) as a genocide in which the state was complicit; while others have countered that the hundreds of Muslim and Hindu dead were all victims of riots or “violent disturbances”. Nine years after the Godhra train went up in flames the court on 22 Feb 2011 pronounced its judgment. Additional Session Judge delivered the verdict and convicted 31 people and acquitted 63. The bodies of those killed in the train were brought to Ahmadabad, where a procession was held, and a move seen as a major provocation for the ensuing communal violence. The VHP issued a call for a state-wide strike on 28 February 2002, which was supported by the BJP. In February 2011, the findings of the Nanavati-Mehta commission were upheld in court, and the Godhra train burning was called a “pre-planned conspiracy”. 31 people were convicted of setting fire to the train and “roasting alive 59 helpless karsevaks.”Of which 11 were sentenced to death and 20 to life sentences .

 

Effects of Genocide on World Community

They included chronic anxiety, fear of renewed persecution, depression, recurring nightmares, psychosomatic disorders, anhedonia (an inability to experience pleasure), social withdrawal, fatigue, hypochondria, an inability to concentrate, irritability, a hostile and mistrustful attitude toward the world, and a profound alteration of personal identity. Syndrome of survivor guilt has emerged as a new effect of genocide crimes. Survivor guilt is the term used to describe the feelings of those who fortunately emerge from a disaster that mortally engulfs others. On an irrational level these individuals wince at their privileged escape from death’s clutches .

 

Conclusion

Genocide is one of the heinous crimes against human being. Genocide is a crime on a different scale to all other crimes against humanity and implies an intention to completely exterminate the chosen group. Genocide is therefore both the gravest and the greatest of the crimes against humanity. In the case genocide as a crime, the principle that any national, racial or religious group has a natural right to exist is clearly evident. Attempts to eliminate such groups violate this

Right to exist and to develop within the international community. Genocide is a conspiracy aimed at the total destruction of a group and thus requires a concerted plan of action. The instigators and initiators of a genocide are cool-minded theorists first and barbarians only second. The specificity of genocide does not arise from the extent of killings, nor their savagery or resulting infamy, but solely from the intention: the destruction of a group. So, strict action and laws should be made against genocide. The punishment should be deterrent.

 


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