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Whitaker Report United Nations
Economic and Social Council Commission on Human Rights 2 July 1985 Prepared by Mr.
Benjamin Whitaker Foreward " '
What I am is not important, whether I live or die - What we do
is important. This is what I have learnt. Says a
child in exile, one of a family Students of
calamity, graduates of famine, James
Fenton: Children in Exile INTRODUCTION: MANDATE
AND PREPARATION OF THE REPORT 1.
This draft report has been prepared pursuant to Economic and Social Council
resolution 1983/33 of 27 May 1983 by which the Council requested the
Sub-Commission "to appoint one of its members as Special Rapporteur with
the mandate to revise, as a whole, and update the study on the question of the
prevention and punishment of the crime of genocide, taking into consideration
the views expressed by the members of the Sub-Commission and the Commission on
Human Rights, as well as replies of Governments, specialized agencies and other
organizations of the United Nations system, regional organizations and
non-governmental organizations to a questionnaire to be prepared by the Special
Rapporteur." In its decision 1983/2 the Sub-Commission decided to appoint
Mr. Benjamin Whitaker to undertake the revised and updated study. Background of the study on the question of the prevention and punishment
of the crime of genocide (E/CN.4/Sub.2/416) 2.
In the second part of its first session, the General Assembly affirmed in
resolution 96 (I) of 11 December 1946, that genocide was a crime under
international law which the civilized world condemned and that those guilty of
it, whoever they were and for whatever reason they had committed It, were
punishable. The Assembly invited Member States to enact the necessary
legislation for the prevention and punishment of that crime and recommended
that intersectional co-operation should be organized for the purpose. The
Assembly requested the Economic and Social Council to undertake the necessary
studies, with a view to drawing up a draft convention on the crime of genocide.
The Convention on the Prevention and Punishment of the Crime of Genocide was
.approved by the General Assembly, by resolution 260 A (III) of 9 December
1948, and entered into force on 12 January 1951. 3.
In resolution 1420 (XLVI) of 6 June 1969, the Economic and Social Council
approved the decision adopted by. the Sub-Commission on Prevention of
Discrimination and Protection of Minorities in its resolution 8 (XX) to
undertake a study of the question of the prevention .and punishment of the
crime of genocide. The Council authorized-the Sub-Commission to designate a
Special Rapporteur to carry out the study, and the 'Sub-Commission in
resolution 1" (XXIV) of 18 August 1971, appointed Mr. Nicodème
Ruhashyankiko, a national of Rwanda who was then a member, of the-
Sub-Commission, as its Special Rapporteur. 4.
Mr. Ruhashyankiko presented a preliminary report and three progress reports to
the Sub-Commission in 1973, and his study to the Sub-Commission at its
thirty-first session in 1978. 5.
The Sub-Commission expressed its thanks to the Special Rapporteur and
transmitted the study to the Commission on Hman Rights with the recommendation
that it should be given the Widest possible distribution. The Commission, at
its thirty-fifth session, in 1979, approved the decision of the Sub-Commission
in decision 9 (XXXV) of 14 March 1979. 6.
This earlier study, contained in document E/CN.4/sub.2/416, dated 4 July 1978,
is available for reference. PART I: HISTORICAL
SURVEY A. The crime of genocide and the purpose of this study 14.
Genocide is the ultimate crime and the gravest violation of human rights it is
possible to commit. Consequently, it is difficult to conceive of a heavier
responsibility for the international community and the Human Rights bodies of
the United Nations than to undertake any effective steps possible to prevent
and punish genocide in order to deter its recurrence. 15.
It has rightly been said that those people who do not learn from history, are
condemned to repeat it. This belief underpins much of the Human Rights work of
the United Nations. In order to prescribe the optimal remedies to pre- vent
future genocide, it can be of positive assistance to diagnose past cases in
order to analyse their causation together with such lessons as the
international community may learn from the history of these events. 16.
Genocide is a constant threat to peace, and it is essential to exercise the
greatest responsibility when discussing a subject so emotive. It is certainly
not the intention of this Study in anyway to comment on politics or to awaken
bitterness or feelings of revenge. The purpose and hope of this Study is
exactly the opposite: to deter future violence by strengthening collective
international responsibility and remedies. It would undermine this purpose,
besides violating historical truth as well as the integrity of United Nations
Studies, were anybody guilty of genocide to believe that international concern
might be averted or historical records changed because of political or other
pressure. If such an attempt were to succeed, that would serve to encourage
those in the future who may be contemplating similar crimes. Equally, it is
necessary to warn that nothing in these historical events should be used to
provide an excuse for further violence or vendettas: this Study is a warning
directed against violence. Its object is to deter terrorism or killing of
whatever scale, and to encourage understanding and reconciliation. The scrutiny
of world opinion and an honest recognition of the truth about painful past
events have been the starting point for a foundation of reconciliation, with,
for example, post-war Germany, which will help to make the future more secure
for humanity. B. The concept of genocide 17.
Amongst all human rights, the primacy of the right to life is unanimously
agreed to be pre-eminent and essential: it is the sine qua non, for all
other human rights (apart from that to one's posthumous reputation) depend for
their potential existence on the preservation of human life. Every right can
also only survive as a consequence of the exercise of responsibilities. The
right of a person or people not to be killed or avoidably left to die depends
upon the reciprocal duty of other people to render protection and help to avert
this. The concept of this moral responsibility and interdependence in human
society has in recent times received increasing international recognition and
affirmation. In cases of famine in other countries, for example, the States
parties to the International Covenant on Economic, Social and Cultural Rights
in "recognizing the fundamental right of everyone to be free from
hunger" have assumed responsibility to take "individually and through
international co-operation" the measures required "to ensure an equitable
distribution of world food supplies in relation to need".(1) The core of the right not to starve to death
is a corollary of the right not to be killed, concerning which the duty of
safeguarding life is recognized to extend not just to the individual's or
group's own Government but to the international community as well. 18.
More serious problems arise when the body responsible for threatening and
causing death is- or is in complicity with - a State itself.(2) The potential victims in such cases need to
turn individually and collectively for protection not to, but from, their own
Government. Groups subject to extermination have a right to receive something
more helpful than tears and condolences from the rest of the world. Action
under the Charter of the United Nations is indeed specifically authorized by
the Convention on the Prevention and Protection of the Crime of Genocide, and
might as appropriate be directed for example to the introduction of United
Nations trusteeship. States have an obligation, besides not to commit genocide,
in addition to prevent and punish violations of the crime by others; and in
cases of failure in this respect too, the 1948 Convention recognizes that
intervention may be justified to prevent or suppress such acts and to punish
those responsible "whether they are constitutionally responsible rulers,
public officials or private individuals". 19.
The Convention on Genocide was unanimously adopted by the United Nations
General Assembly on 9 December 1948, and therefore preceded albeit by one day
the Universal Declaration of Human Rights itself. While the word
"genocide" is a comparatively recent neologism for an old crime,(3) the Convention's preamble notes that "at
all periods of history genocide has inflicted great losses on humanity, and
being convinced that, in order to liberate mankind from such an odious scourge,
international co-operation is required". 20.
Throughout recorded human history, war has been the predominant cause or
pretext for massacres of national, ethnic, racial or religious groups. War in
ancient and classical eras frequently aimed to exterminate if not enslave other
peoples. Religious intolerance could also be a predisposing factor: in
religious wars of the Middle Ages as well as in places in the Old Testament,
some genocide was sanctioned by Holy Writ. The twentieth century equally has
seen examples of "total wars" involving the destruction of civilian
populations and which the development of nuclear weapons makes an almost inevitable
matrix for future major conflicts. In the nuclear era, indeed the logical
conclusion of this may be "omnicide". 21.
Genocide, particularly of indigenous peoples, has also often occurred as a
consequence of colonialism, with racism and ethnic prejudice commonly being
predisposing factors. In some cases occupying forces maintained their authority
by the terror of a perpetual threat of massacre.(5) Examples could occur either at home or
overseas: the English for example massacred native populations in Ireland,
Scotland and Wales in order to deter resistance and to "clear" land
for seizure, and the British also almost wholly exterminated the indigenous
people when colonizing Tasmania as late as the start of the nineteenth century.
Africa, Australasia and the Americas witnessed numerous other examples. The
effect of genocide can be achieved in different ways: today, insensitive
economic exploitation can threaten the extinction of some surviving indigenous
peoples. 22.
But genocide, far from being only a matter of historical study, is an
aberration which also is a modern danger to civilization. No stronger evidence
that the problem of genocide has - far from receding - grown in contemporary
relevance is required than the fact that the gravest documented example of this
crime is among the most recent, and furthermore occurred in the so-called
developed world. Successive advances in killing-power underline that the need
for international action against genocide is now more urgent than ever. It has
been estimated that the Nazi holocaust in Europe slaughtered some 6 million
Jews, 5 million Protestants, 3 million Catholics and half a million Gypsies.
This was the product not of international warfare, but a calculated State
political policy of mass murder that has been termed "a structural and
systematic destruction of innocent people by a State bureaucratic
apparatus".(6) The Nazi intention to destroy particular
human nations, races, religions, sexual groups, classes and political opponents
as a premeditated plan was manifested before the Second World War. The war
later offered the Nazi German leaders an opportunity to extend this policy from
their own country to the peoples of occupied Poland, parts of the Soviet Union
and elsewhere, with an intention of Germanizing their territories. The
"final solution" included (as evidenced at the Nuremberg trial),
"delayed-action genocide" aimed at destroying groups' biological
future through sterilization, castration, abortion, and the forcible transfer
of their children.(7) The term genocide, with also its concept as
an international crime, was first used officially at the subsequent
International Tribunal at Nuremberg. The indictment of 8 October 1945 of the
major German war criminals charged that the defendant had: "conducted
deliberate (8) The concluding speech by the British
Prosecutor stated that: "Genocide was
not restricted to extermination of the (9) 23.
The present two German Governments have been unflinching in their
acknowledgment and condemnation of these guilty events, in their efforts to
guard against any repetition of them or of Nazism. The Government of the
Federal Republic of Germany had stated that official action will be taken,
without the need for complaint from any member of the public, to prosecute
people who seek to deny the truth about the Nazi crimes. President von
Weizsacker in a forthright recent speech to the Bundestag made clear his belief
that his countrymen must have known during the war of the fate of the Jews: "The genocide
of the Jews is without example in history . . . at the end of the war, the
whole unspeakable truth of the holocaust emerged. Too many said they knew
nothing, or had only an inkling of it. There is no guilt or innocence of a
whole people because guilt, like innocence, is not collective but individual.
All those who lived through that time with full awareness should ask themselves
today, quietly, about their involvement."(10) 24.
Toynbee stated that the distinguishing characteristics of the twentieth century
in evolving the development of genocide "are that it is committed in cold
blood by the deliberate fiat of holders of despotic political power, and
that the perpetrators of genocide employ all the resources of present-day
technology and organization to make their planned massacres systematic and
complete". (11) The Nazi aberration has unfortunately not
been the only case of genocide in the twentieth century. Among other examples
which can be cited as qualifying are the German massacre of Hereros in 1904, (12) the Ottoman massacre of Armenians in
1915-1916, (13) the Ukrainian pogrom of Jews in
1919, (14) the Tutsi massacre of Hutu in
Burundi in 1965 and 1972, (15) the Paraguayan massacre of Ache
Indians prior to 1974, (16) the Khmer Rouge massacre in Kampuchea between
1975 and 1978, (17) and the contemporary Iranian
killings of Baha'is. (18) Apartheid is considered separately
in paragraphs 43-46 below. A number of other cases may be suggested. It could
seem pedantic to argue that some terrible mass-killings are legalistically not
genocide, but on the other hand it could be counter-productive to devalue
genocide through over-diluting its definition. PART II. THE CONVENTION OF THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE A. The Convention of 9 December 1948 25.
In the wake of the Nazi atrocities, the Genocide Convention provided a
permanent definition for part of the concept of "crimes against
humanity" contained in the Nuremberg principles, which themselves were an
extension of international criminal jurisdiction regarding war crimes. The
convention, which sought to codify a fundamental principle of civilization, in
addition extended liability for such crimes to times of peace and not only to
wartime. (19) 26.
In its first session in 1946, the United Nations unanimously approved two
resolutions Resultion 95(1) affirmed the principles of international law
recognized by the Charter of the Nuremberg Tribunal and the judgement of the
Tribunal. On 11 December 1946, the United Nations General Assembly also adopted
96(1) which reads as follows: "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 the spirit and aims of the
United Nations. Many instances of
such crimes of genocide have occurred when racial, religious, political and
other groups have been destroyed, entirely or in part. The punishment of
the crime of genocide is a matter of international concern. The General
Assembly therefore, Affirms that genocide is a
crime under international law which the civilized world condemns, and for the
commission of which principals and accomplices - whether private individuals,
public officials or statesmen, and whether the crime is committed on religious,
racial, political or any other grounds - are punishable; Invites the Member States
to enact necessary Legislation from the prevention and punishment of this
crime; Recommends that international
cooperation be organized between States with a view to facilitating the speedy
prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and
Social Council to undertake the necessary studies, with a view to drawing up a
draft convention on the crime of genocide to be submitted to the next regular
session of the General Assembly." 27.
At the third session (first part) of the General Assembly , the draft
convention prepared by the Ad Hoc Committee was referred to the Sixth
Committee. The Sixth Committee examined the draft article by article, as well
as the amendments submitted to it, at its 63rd to 69th meetings, its 71st to
81st meetings, its 91st to 110th meetings and its 128th to 134th meetings. The
draft convention as revised by the Sixth Committee, together with certain
amendments, which had not been accepted by the Committee, was considered by the
General Assembly at its 178th and 179th meetings. In Resolution 260 A (III) of
9 December 1948, the Assembly, meeting in Paris, unanimously approved the
Convention on the Prevention and Punishment of the Crime of Genocide which was
annexed to the resolution, and proposed it for signature and ratification or
accession by Member States in accordance with its article XI. It subsequently
came its force on 12 January 1951, in accordance with its article XIIII. 28.
The full provisions in the Convention are as follows: "The
Contracting Parties, Having considered the declaration
made by the General Assembly of the United Nations in its resolution 96 (I)
dated 11 December 1946 that genocide is a crime under international law,
contrary to the spirit and aims of the United Nations and condemned by the
civilized world, Recognizing that at all
periods of history genocide has inflicted great losses on humanity, and Being convinced
that, in order to liberate mankind from such an odious scourge, international
co-operation is required, Hereby agree as
hereinafter provided:
Article I The Contracting
Parties confirm that genocide, whether committed in time of peace or in time of
war, is a crime under international law which they undertake to prevent and to
punish. Article II In the present
Convention, genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group,
as such: (a) Killing members of the
group; Article III The following acts
shall be punishable: (a) Genocide; Article IV 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. Article V The Contracting
Parties undertake to enact, in accordance with their respective Constitutions,
the necessary legislation to give effect to the provisions of the present
Convention, and, in particular, to provide effective penalties for persons guilty
of genocide or any of the other acts enumerated in article III. Article VI Persons charged
with genocide or any of the other acts enumerated in article III shall be tried
by a competent tribunal of the State in the territory of which the act was committed,
or by such international penal tribunal as may have jurisdiction with respect
to those Contracting Parties which shall have accepted its jurisdiction. Article VII:
Genocide and the other acts enumerated in article III shall not be considered
as political crimes for the purpose of extradition. The Contracting
Parties pledge themselves in such cases to grant extradition in accordance with
their laws and treaties in force. Article VIII Any Contracting
Party may call upon the competent organs of the United Nations to take such
action under the Charter of the United Nations as they consider appropriate for
the prevention and suppression of acts of genocide or any of the other acts
enumerated in article III. Article IX Disputes between
the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated
in article III, shall be submitted to the International Court of Justice at the
request of any of the parties to the dispute. Article X The present
Convention, of which the Chinese, English, French, Russian and Spanish texts
are equally authentic, shall bear the date of 9 December 1948. Article XI The present
Convention shall be open until 31 December 1949 for signature on behalf of any
Member of the United Nations and of any nonmember State to which an invitation
to sign has been addressed by the General Assembly. The present
Convention shall be ratified, and the instruments of ratification shall be
deposited with the Secretary-General of the United Nations. After 1 January
1950, the present Convention may be acceded to on behalf of any Member of the
United Nations and of any non-member State which has received an invitation as
aforesaid. Instruments of accession shall be deposited with the
Secretary-General of the United Nations. Article XII Any Contracting
Party may at any time, by notification addressed to the Secretary-General of
the United Nations, extend the application of the present Convention to all or
any of the territories for the conduct of whose foreign relations that
Contracting Party is responsible. Article XIII On the day when the
first twenty instruments of ratification or accession have been deposited, the
Secretary-General shall draw up a proces-verbal and transmit a copy thereof to
each Member of the United Nations and to each of the non-member States
contemplated in article XI. The present
Convention shall come into force on the ninetieth day following the date of
deposit of the twentieth instrument of ratification or accession. Any ratification or
accession effected, subsequent to the latter date shall become effective on the
ninetieth day following the deposit of the instrument of ratification or
accession. Article XIV The present
Convention shall remain in effect for a period of ten years as from the date of
its coming into force. It shall thereafter
remain in force for successive periods of five years for such Contracting
Parties as have not denounced it at least six months before the expiration of
the current period. Denunciation shall
be effected by a written notification addressed to the Secretary-General of the
United Nations. Article XV If, as a result of
denunciations, the number of Parties to the present Convention should become
less than sixteen, the Convention shall cease to be in force as from the date
on which the last of these denunciations shall become effective. Article XVI A request for the
revision of the present Convention may be made at any time by any Contracting
Party by means of a notification in writing addressed to the Secretary-General.
The General
Assembly shall decide upon the steps, if any, to be taken in respect of such
request. Article XVII The
Secretary-General of the United Nations shall notify all Members of the United
Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications
and accessions received in accordance with article XI; Article XVIII The original of the
present Convention shall be deposited in the archives of the United Nations. A certified copy of
the Convention shall be transmitted to each Member of the United Nations and to
each of the non-member States contemplated in article XI. Article XIX The present
Convention shall be registered by the Secretary-General of the United Nations
on the date of its coming into force. PART II B (B) Analysis of the Convention 1.
The
extent of destruction of a group: 29.
Genocide need not involve the destruction of a whole group. Argument has
occurred as to whether an attack affecting half of a small group more closely
approximates to genocide than a massacre which affects only one tenth of a
larger group of several million people. The relative proportionate scale of the
actual or attempted destruction of a group, by any of the means listed in
Articles II and III of,the Convention, is certainly strong evidence to prove
the necessary intent to destroy a group, in whole or in part. "In
part" would seem to imply a reasonably significant number, relative to the
total of the group as a whole, or else a significant section of a group such as
its leadership. On the other hand, it has been urged that, given the mens
rea of such intent, the Convention should be interpreted as applying to
cases of "individual genocide", where a single person was a victim of
any of such acts, (20) though strictly even such a minimalist
interpretation requires evidence of more than one victim, since the plural is
used consistently throughout Article IT (a) to (e). In order that the gravity
of the concept of genocide should not be devalued or diluted by the inflation
of cases as a result of too broad an interpretation, the present Special
Rapporteur suggests that considerations of both of proportionate scale and of
total numbers are relevant. Other attacks and killings do, of course, remain
heinous crimes, even if they fall outside the definition of genocide. 2 . The groups protected: 30.
The lack of clarity about which groups are, and are not, protected has made the
Convention less effective and popularly understood,than should be the case. The
1948 Convention enumerates groups protected as "a national, ethnical,
racial or religious group", without defining such terms. (21) Differing views have been expressed as to
what extent the terms "national" or "ethnical"groups
include minorities. The Nazi policy was also to exterminate the sexual minority
group of homosexuals. It is recommended that the definition should be extended
to include a sexual group such as women, men, or homosexuals. A victim group
might in fact constitute either a numerical minority or a majority in a
country, as the Hutu in Burundi. Some assistance may be forthcoming from the
Sub-Commission, which has been mandated by the Commission on Human Rights to
consider and propose a definition of minority. 31.
It is noteworthy that the definition does not exclude cases where the victims
are part of the violator's own group. The United Nations Rapporteur on the
mass-killings in Kampuchea designated this slaughter as
"auto-genocide", a term implying an internal mass destruction of a
significant part of the members of one's own group (E/CN.4/sR.1510). 3. Cultural genocide, ethnocide and ecocide 32.
At least one expert has argued that the future preservation and existence of
minorities is insufficiently protected by the Convention because its final text
did not include any reference to "cultural genocide". (22) The Ad Hoc Committee preparing the
Convention had in fact proposed including such a provision in the draft of
Article III, specifying the following acts as -examples constituting cultural
genocide: "Any
deliberate act committed with intent to destroy the language, religion or
culture of a national, racial or religious group on grounds of national or
racial origin or religious belief such as: 1. Prohibiting the use of the
language of the group in daily intercourse or in schools, or the printing and
circulation of publications in the language of the group; 2. Destroying or
preventing-the use of libraries, museums, schools, historical monuments, places
of worship." (23) The
supporters of such a concept argued that a group could be suppressed by
extinguishing their specific traits, as well as by physical destruction. In the
course of the debates in the Sixth' Committee, it was however decided not to
include any provision concerning cultural genocide in the final text of the
Convention, on the ground that such a provision was inescapably vague and would
invite the risk of political interference in the domestic affairs of States,
and that the protection of minorities' culture should be the responsibility of
other international bodies. 33.
Some members of the Sub-Commission have however proposed that the definition of
genocide should be broadened to include cultural genocide or
"ethnocide", and also "ecocide": adverse alterations, often
irreparable, to the environment - for example through nuclear explosions,
chemical weapons, serious pollution and acid rain, or destruction of the rain
forest - which threaten the existence of entire populations, whether
deliberately or with criminal negligence. (24) Indigenous groups are too often the silent
victims of such actions. The Study on Indigenous Populations
(E/CN.4/Sub.2/1983) emphasized the need for special and urgent attention to
"cases of physical destruction of indigenous communities (genocide) or
destruction of indigenous cultures (ethnocide)". The case for the proposed
additions has subsequently been reinforced by the increasing attention given by
the United Nations bodies to the rights of indigenous peoples, including the
establishment of the Working Group at the Sub-Commission. Other opinions have
argued that cultural ethnicity and ecocide are crimes against humanity, rather
than genocide. Further consideration should be given to this question,
including if there is no consensus, the possibility of formulating an optional
protocol. 35.
After considerable debate, the Sixth Committee decided not to include political
groups among those protected by the Convention. (26) Opposition to the proposal was forcefully led
by the Soviet Union's representative. The arguments advanced against the
inclusion of political groups were, in essence, that: (a)
a
political group had no stable, permanent and clear-cut characteristics in that
it did not constitute an inevitable and homogeneous grouping, being based on
the will of its members and not on factors independent of that will; (b)
the
inclusion of political groups would preclude the acceptance of the Convention
by the greatest possible number of States and the acceptance of an
international criminal jurisdiction, because it would involve the United
Nations in the internal political struggles of each country; (c)
such
inclusion would create difficulties for legally established Governments in
their preventive actions against subversive elements; (d)
the
protection of political groups would raise the question of protection under the
Convention for economic (27) and professional groups; and (e)
the
protection of political and other groups should be ensured outside the
Convention, under national legislation and the Universal Declaration of Human
Rights. 36.
In support of the inclusion of political groups it was and is argued that it is
logical and right for them to be treated like religious groups, a
distinguishing mark of both types of group being the common beliefs which unite
their members. Specific examples culled from the recent-history of Nazism prove
that political groups are perfectly identifiable and, given the persecution to
which they were subjected in an age of ideological conflict, protection is
essential. During the debate the French representative presciently argued that
"whereas in the past crimes of genocide had been committed on racial or
religious grounds, it was clear that in the future they would be committed
mainly on political grounds", and this view received strong support from
other representatives. In an era of ideology, people are killed for ideological
reasons. (28) Many observers find difficulty in understanding
why the principles Underlying the Convention would not be equally applicable in
the case of mass killings intended to exterminate, for instance, communists or
kulaks. In addition, in some cases of horrendous massacre it is not easy to
determine which of overlapping political, economic, national, racial, ethnical
or religious actors was the determinant one. Is, to take but two examples, the
crime of Apartheid primarily racial, political or economic? Or was the
selective genocide in Burundi intrinsically political or ethnic in its intent?
Most genocide has at least some political tinge, and a considerable number of
the Nazis' mass-killings were political. It has been argued that leaving
political and other groups beyond the purported protection of the Convention
offers a wide and dangerous loophole which permits any designated group to be
exterminated, ostensibly under the excuse that this is for political reasons. (29) 37.
One possible solution to the problem of killings of political and other groups
which would be considered in the absence of consensus, would be to include this
provision in an additional optional protocol. 5. Intent 38.
If it is the element of intent to destroy a designated group wholly or
partially which raises crimes of mass murder and against humanity to qualify as
the special crime of genocide. An essential condition is provided by the words
"as such" in Article II, which stipulates that , in order to be
characterized as genocide, crimes against a number of individuals must be
directed at the collectivity or at them in their collective character or
capacity. Motive, one the other hand, is not mentioned as being relevant. 39.
Evidence of this element of subjective intent is far harder to adduce than an
objective test. Not all genocidal regimes are likely to be as thoroughly
documented as the Nazi one was. It is suggested that a court should be able to
infer necessary intent from sufficient evidence, and that in certain cases this
would include actions or omissions of such a degree of criminal negligence or
recklessness that the defendant must reasonably be assumed to have been aware
of the consequences of is conduct. The plea of superior orders is dealt with
later infra, in paragraph 51 onwards. 6. Acts punishable 40.
The conduct listed in Articles II and III of the Convention as being punishable
as genocide consists elusively of the commission of certain actions. Similar
results, to Article II (b) and (c) for example, however may be achieved by
conscious acts advertent omission. In certain cases, calculated neglect or
negligence may be sufficient to destroy a designated group wholly or partially
through, for instance, famine or disease. 41.
The Special Rapporteur therefore proposes that there should be added at the end
of Article II of the convention words such as: "in any of the above
conduct, a conscious act or acts of advertert omission may be as culpable as an
act of commission." Provision for revision of the Convention is set out in
Article XVI of the Convention. 42.
In the consideration of whether to widen and revise the Convention in other
respects, it has rightly been argued that it is necessary not to weaken the
over-all governmental support for its central principle. On the one hand,
"genocide" in popular modern usage covers many more cases of mass
killings than those covered in the Convention. On the other hand, it has also
been noted that Article II (b) "Causing serious bodily or mental harm to
members of the group" is one wider interpretation than that either in
popular usage or in the dictionary. (30) However, in certain cases such an apartheid,
the degree of mental and other suffering inflicted may be felt to constitute
such a comparable crime; (31) and apartheid generally is considered in more
detail next. 7. Apartheid 43.
Apartheid was examined in relation to the Genocide Convention by an Ad
Hoc Working Group of Experts established under resolution 2 (XXIII) of the
Commission on Human Rights. Their work produced the Study concerning the
question of apartheid from the point of view of international penal law. (32) The study listed examples of the practices of
apartheid which they regarded as instances of genocide: " (a)
The
institution of group areas ('Bantustan policies'), which affected the African
population by crowding them together in small areas where they could not earn
an adequate livelihood, or the Indian population by banning them to areas which
were totally lacking the preconditions for the, experience of their traditional
professions; (b)
The
regulations concerning movement of Africans in urban areas and especially the
forcible separation of Africans from their wives during long periods, thereby
preventing African births; (c)
The
population policies in general, which were said to include deliberate
malnutrition of large population sectors and birth control for the [Page 21] non-white sectors in order to reduce
their numbers, while it was the official policy to favour white immigration; (d)
The
imprisonment and ill-treatment of nonwhite political (group) leaders and of
nonwhite prisoners in general; (e)
The
killing of the nonwhite population through a system of slave or tied labour,
especially in so-called transit camps. "
The
study (E/CN.4/1074) also states that "In various documents the Ad Hoc
Working Group has described how politicians in South Africa, Southern Rhodesia
and Namibia commit the crime of genocide directly or indirectly and incite such
crimes directly and publicly. Many examples of attempted genocide and of
complicity in the crime have been described at length in documents E/CN-4/950;
E/CN-4/984/Add.18; E/CN.4/1020; E/CN.4/1020/Add,@2.11 Referring to article IV
of the convention, the study also stated that "Persons committing the
crime of genocide in South Africa, Southern Rhodesia and Namibia are Heads of
State, members of the various Governments, public officials, official agents
and 'all other persons responsible for giving effect to the policies of
apartheid". In paragraph 161 of the study the Group of Experts repeated
its recommendation contained in document E/CN-4/984/Add.18 that the Commission
on Human Rights should make specific proposals concerning a revision of the
Genocide Convention, in particular to make "inhuman acts resulting from
the policies of apartheid" punishable under that Convention. The Group
further recommended (in paragraph 163) that acts of "cultural
genocide" should be expressly declared crimes against humanity. 44.
At its twenty-eighth session, the General Assembly by its resolution 3068
(XXVIII) of 30 November 1973, adopted and opened for signature and ratification
the International Convention on the Suppression and Punishment of the Crime of Apartheid.
33/(65) This Convention entered into force on 18 July
1976, in accordance with paragraph I of its article XV. -The General Assembly
in its resolution 31/80 of 13 December 1976 invited the Commission on Human
Rights to undertake the functions set out, in Article X of the Convention, in
particular to prepare a list of individuals, organizations, institutions and
representatives of States which are alleged to be responsible for the crimes
enumerated in article II of the Convention. By the same resolution, the
Assembly decided to consider annually, starting with its thirty-second session,
the question entitled "Status of the International Convention on the
Suppression and Punishment of the Crime of Apartheid". The fifth,
sixth and seventh preambular paragraphs of the Convention read as follows: "Observing
that, in the Convention on the Prevention and Punishment of the Crime of
Genocide, certain acts which may also be qualified as acts of apartheid
constitute a crime under international law, Observing that, in the
Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity, 'inhuman acts resulting from the policy of apartheid'
are qualified as crimes against humanity, Observing that the General
Assembly of the United Nations has adopted a number of resolutions in which the
policies and practices of apartheid are condemned as a crime against
humanity". According
to article I, paragraph I , of the Convention: "I - The States Parties to
the present Convention declare that apartheid is a crime against humanity and
that inhuman acts resulting from the policies and practices of apartheid and
similar policies and practices of racial segregation and discrimination, as
defined in Article II of the Convention, are violating the principles of
international law, and in particular the purposes and principles of the Charter
of the United Nations, and constituting a serious threat to international peace
and security." 45.
The previous Study on Genocide concluded that therefore apartheid should be
considered more properly as a crime against humanity rather than as genocide.
It special Rapporteur also stated that "since the International Convention
on the Suppression and Punishment of the Crime of Apartheid has been adopted
and has entered into force, it will no longer be necessary to include
provisions relating to apartheid in any new international instrument, dealing
with genocide". (36) 46.
Most recently, the subject together with further evidence about apartheid has
been examined by an Ad H Working Group of Experts on Violations of Human Rights
in Southern Africa, pursuant to the Commission on Human Rights' resolution
198319 (paragraph 14). The Group considered in particular evidence of capital
punishment, large-scale killings, physical and mental violations of non-whites,
and apartheid's effects on the African family and the status of women and
children. The experts concluded that "the South African racists want to
destroy the Africans, sparing only those needed as a slave-labour force"
(their paragraph 51); and that "The Working Group interprets the term genocide
more broadly to mean any act calculated to destroy the individual or prevent
him from participating fully in national life. The latter too should be
understood in its more general sense, embracing political, economic and social
life" (paragraph 57). The Group also concluded that the degree of mental
genocide caused by apartheid was within article II(b) of the Convention (their
paragraph 70); and that policies affecting black birth-rates are within
articles II(e) and (d) of the Convention. They recommended, inter alia,
that "The way in which the South African regime implements the policy of
apartheid, should henceforth be considered as a kind of genocide", and
requested the Commission "to call on the General Assembly to seek an
advisory opinion from the International Court of Justice on the extent to which
apartheid as a policy entails criminal effects bordering on genocide." (35) 8 . Propaganda in favour of genocide 47.
Certainly for the victims, the preventative measures (see Part III below) to
avert or forestall genocide are more useful than lamentation or condemnation
after it has occurred. As in all human rights work, the importance of the role
to be played by public education cannot be over-estimated It has been suggested
that public propaganda aimed at promoting the commission of acts of genocide,
or attempts to rewrite history so as either to falsify the truth about or to
glorify its occurrence, of which there are examples in more than one country
today, should be brought within the terms of the Convention. 48.
It should be noted that "direct and public incitement to commit
genocide" t is already punishable under Article III(C) of the Convention.
A number of nations' laws also ban propaganda or public statements that stir up
racial, national or religious hatred. And it can be argued that propaganda for
genocide should not be considered as any less grave than propaganda for war,
prohibited by Article XX(l) of the Covenant on Civil and Political Rights, or
propaganda in favour of racial superiority, prescribed by Article IV of the
Convention on the Elimination of All Forms of Racial Discrimination. 49.
Regarding attempts to falsify the historical truth about genocide, it has
already been noted in paragraph 23 supra that the Government of the Federal
Republic of Germany has pledged official action to prosecute any person who
seeks to deny or minimize the truth about the Nazi crimes. Many Governments on
the other hand believe strongly that there should be no constraint either on
legitimate historical debate or upon freedom of expression. In certain other -
States however no such freedom of expression or scholarship is permitted.
Sincere differences of,opinion exist as to whether this problem is best dealt
with by education and constant vigilance or by the influence of legislation.(36) 9. Culpability and superior orders. 50.
Concern has been expressed whether the exhaustive list of People stated to be
those punishable for genocide in article IV of the Convention is adequate to
cover leaders or rulers in de facto but unconstitutional control of a
territory, for example after a coup d'etat or during civil strife, since these
might be considered to be neither "constitutionally responsible
rulers" nor "private individuals'. But the Special Rapporteur is of
the opinion that such persons would be likely to be held by a court to be
"public officials" or, if not, then to be "private
individuals". However, if certainty is required, consideration could be
given to inserting words as "whether de jure or de facto"
in Article IV if and when the Convention comes to be revised. 51.
Wider concern has been ex law genocide under the command of a superior or to
comply with a national may escape punishment through a plea that they lacked
the intent necessary under Article 11, despite all-embracing list of
culpability in Article IV. 52.
In fact the international practice at least since the Second World War has
consistently applied to the principle of individual criminal responsibility for
crimes of international law, including those of genocide. Thus article 6 of the
Charter of the International Military Tribunal of Nuremberg gave the the power
to try and punish persons who, acting in the interests of the Axis countries,
had committed any of the following crimes, as defined in the article: crimes
against peace, war crimes and crimes against humanity. In applying these
provisions, the Tribunal made pronouncements concerning the fundamental
principle involved: the criminal responsibility of individuals under
international law. (37) In its judgement the Tribunal affirmed inter
alia, that individuals could be punished for violations of international
law and continued: "Crimes against international law are committed by men,
not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced."(38) The Charter of the International Tribunal for
the Far East also provided, in its article 5, for individual criminal
responsibility, (39) and the judgement of that Tribunal applied
the same principle, Principle I in the document Principles of international
law recognized in the Charter of the Nüremberg Tribunal and in the Judgement of
the Tribunal adopted by the International Law Commission at its second
session (1950) reads as follows: "Any
person who commits an act which constitutes a crime under international law is
responsible therefore and liable to punishment." (40) Article
1 of the draft code of offences against the peace and security of mankind,
which was adopted by the International Law Commission at its sixth session
(1954), similarly provides that: "Offences
against the peace and security of mankind, as defined in this code, are crimes
under international law, for which the responsible individuals shall be
punished." (41) Article
25 of the draft statute for an international criminal court, which was adopted
in 1951 by the Committee on International Criminal Jurisdiction established by
General Assembly resolution 489 (V) of 12 December 1950, provides: "The
Court shall be competent to judge natural persons only, including persons who
have acted as Head of State or agent of government."(42) The
1953 Committee on International Criminal Jurisdiction, set up under General
Assembly resolution 687 (VII) of 5 December 1952, in the revised draft statute
for an international criminal court, adopted -the following wording for the
draft article 25: "The Court shall be competent to judge natural persons,
whether they are constitutionally responsible rulers, public officials or private
individuals.'(43) In
its report, the Committee stated that this text was based on article IV- of the
Convention on Genocide.(44) Article
III of the International Convention on the Suppression and Punishment of the
Crime of Apartheid, adopted by General Assembly resolution 3068 (XXVIII) of 30
November 1973, provides inter alia that: "International
criminal responsibility shall apply, irrespective of the motive involved, to
individuals, members or organizations and institutions-and representatives of
the State, whether residing in the territory of the State In which the acts are
perpetrated or in some other State, whenever they: (a) Commit ... the acts
mentioned in article II of the present Convention." Article
8 of the Nuremberg Charter' made clear that no defendant could claim the
protection of having obeyed orders from a superior, though superior orders
might be considered by the Tribunal as a mitigating factor in sentencing. The
denial of the defence of superior orders has often been called the
"Nuremberg Principle". It was not, however, new at the trial. It was
perfectly familiar in national legal systems - and indeed, it should have been
even more familiar to the German military than to anyone, because every German
soldier's paybook contained 'Ten Commandments ', one of which stated that no
soldier should obey an illegal order (45) Only in 1944 did the Americans and British
clarify their military legal manuals to emphasize that any soldier is
personally responsible for the acts he commits. The defence of superior orders
had also not been allowed by German judges of the Leipzig trials after the
First World War, and this doctrine was therefore not one that was invented de
novo by the victors at Nuremberg. 53.
There therefore should be little doubt, that courts today would hold that the
concept of individual responsibility will override any defence of superior
orders. Nevertheless, since wider public education about this doctrine in
highly crucial for the aversion of future genocide, the Special Rapporteur
recommends that explicit wording should be added to the Convention, perhaps at
the end of Article III, that "In judging culpability a plea of superior
orders is not an excusing defence". Similarly wider publicity should be
given to this principle in national codes governing armed forces, prison
staffs,police officer, doctors and others, to advise and warn them that it is
not only their right to disobey orders violating human rights, such as to carry
out genocide or torture, but their, legal duty so to disobey. Such precepts
should also be taught in all schools, and the United Nations Educational,
Scientific and Cultural Organization might be asked to encourage this
internationally. 54.
Individuals responsibility however need not necessarily exclude in appropriate
cases a State's collective responsibility also toward the victims, including
sometimes liability for damages and restitution. The French representative
argued in the debate preparing the Convention: "The
theoreticians of nazism and fascism, who had taught the doctrine of the
superiority of certain races, could not have committed their crimes if they,
had not had the support of their rulers; similarly, pogroms had occurred
frequently only in countries where no severe legal measures were taken against
the perpetrators. Thus the experience of history showed the way it was that
human groups should be exterminated while the Government remained indifferent;
it was inadmissible that the central authority should be powerless to out a
stop to mass assassination when homicide was the first of punishable crimes.
When the crime of genocide was committed, it was committed either directly by
the Governments themselves or at their behest; alternatively, they remained
indifferent and failed to use the power which every Government should have in
order to ensure public order. Thus, whether an perpetrator or as accomplice,
the Government's responsibility-was in all cases implicated. (47) Germany
has subsequently paid substantial reparations for genocidal crimes against t:he
Jews. It is therefore recommended, to deter pour encourager les autres,
that when the Convention is revised, consideration shall be given to including
provision for a State's responsibility for genocide together with reparations. 55.
Although the Convention despite its title concentrates almost exclusively on
the punishment rather than the prevention of Genocide, it is in the field of
the former that its lack of effect has been most marked"' As Professor Leo
Kuper comments: 'A major obstacle to effective enforcement arose from the
unwillingness to accept any limitation ('infringement') of national
sovereignty, or diminution in the scope of domestic jurisdiction, as well as
from fear of outside interference in domestic affairs." (48) 56.
Enforcement principle of universal enforcement, permitting a State whose
authorities had arrested those charged with the crime, to exercise
jurisdiction, regardless of the nationality of the accused or of the place
where the offence was committed. There nationality of the accused or of the
place where the offence wage committed. There was also a provision that the
contracting parties might call on the competent organs of the United Nations to
take measures for the prevention and suppression of the crime in any part of
the world, in which case the parties would do everything in their power to give
full effect to the intervention of the United Nations. This latter provision
was retained in the final text, but the principle of universal jurisdiction was
eliminated, save to the extent that the United Nations may take action within
its general competence. The Secretariat's draft also imposed on the parties the
obligation to provide in their national laws for acts of genocide and their
punishment, and to commit all persons guilty of genocide for trial by an
international court, when (1) they are themselves unwilling to try such
offenders or to grant extradition to another country, (2) if the acts of
genocide were committed by individuals acting as organs of the State. The
provision in regard to an international penal court aroused controversy, though
the resolution was closely contested. Later, when political groups were denied
the protection of the Convention, it became feasible to reinstate the
jurisdiction of an international penal tribunal, though in an optional and
conditional form. The Convention now provides for trial by a competent tribunal
of the State in-the territory of which the act was committed, "or by such
international penal tribunal as may have jurisdiction with respect to those
Contracting Parties which shall have accepted its jurisdiction." (49) No international penal court has as yet been
established. In the General Assembly, discussion of a Revised Draft Statute for
an international tribunal was made contingent upon satisfactory drafting of the
Code of Offences against the Peace and Security of Mankind, which in turn, was
made contingent upon a satisfactory definition of "aggression", which
problem was assigned to a Special Committee in 1954, and to a further Committee
of 35 States in 1967, which has met repeatedly since that time. A definition of
aggression was finally arrived at in 1974, but the project for an international
penal tribunal to try charges of genocide still remains in abeyance. In
examining the problem of the enforceability of the Convention, it is necessary
also to take account of reservations made by signatories when ratifying the
Convention as, for example, reservations regarding submissions to the
International Court of Justice of disputes concerning interpretation,
application or fulfillment of the Covenant. These may have the effect of
further weakening its provisions. Acting in the opposite direction is the
impact of the Convention on national legislation incorporating the crime of
genocide in penal code or laws. It should also of course be noted that genocide
remains a crime under international law, as is expressly stated at the start of
the Convention, irrespective of a country's signature or not, though the
Convention itself is binding only on Contracting Parties. Although 96 States
have ratified the Convention, among those which have not yet ratified are
Burundi, Equatorial Guinea, Paraguay, South Africa, Uganda and the United
States of America. (See paragraph 69 infra). 57.
Some encouragement nevertheless may be drawn from the recent national
prosecutions by Kampuchea and Equatorial Guinea.(50) Another interesting analogous precedent
has,been set by the case of Filartiga versus Pena, where an action for
$10.4 million damages in a New York court was upheld against an alien torturer
who was on a temporary visit within the jurisdiction. But it was partly the
failure to make progress internationally that caused Israel to take unilateral
measures to seize and try Eichmann. 58.
During discussion by the Legal Committee in 1948, the subject of international
penal jurisdiction was considered carefully. As a result, the idea is envisaged
and provided for in Article VI of the Convention. Further, in addition to the
Convention, the Assembly adopted a resolution which made three provisions: First,
it recognized that "in the course of development of the international
community there will be an increasing need of an international judicial organ
for the trial of certain crimes under international law". Second,
it invited the International Law Commission to study both the desirability and
the possibility of establishing such an international judicial organ "for
the trial of persons charged with genocide, or other crimes over which
jurisdiction will be conferred upon that organ by international
conventions". Third,
it required the International Law Commission, in carrying out its task, to give
attention to the possibility of establishing a Criminal Chamber of the
International Court of Justice. After
studying that question, the International Law Commission concluded that an
international criminal court was both possible and desirable but recommended it
be a separate institution rather than a Criminal Chamber of the International
Court. 59.
In debates at the Sub-Commission it has been argued, in favour of setting up an
international penal tribunal, that the perpetrators of acts of genocide are
generally national authorities against whom national legislation is often least
likely to be applied; and that the establishment of the International Court of
Justice has shown that new international bodies to enforce respect for human
rights, though not easy, was feasible. A State could, for example, take the
initiative of requesting the Court to investigate alleged cases of genocide in
the territory of a State party to the Genocide Convention. Other experts doubted
how realistic or likely this is, and point to the limited number of States
which have accepted the compulsory jurisdiction. Some argued it would be better
to set up an international investigatory body, to act not only on the basis of
majority decisions by political organs of the United Nations but also on its
own initiative, in cases where there was evidence that genocide was being or
was about to be committed.(51) In the 1984 Sub-Commission, an expert
suggested there might be advantages in looking the courts of all countries
competent to judge the perpetrators of the crime of genocide who had taken
refuge abroad. Since one of the obstacles is the problem of bringing such
culprits before courts on a mandatory basis, it was argued that consideration
should be given to amending the International Court of Justice's statutes to
give it penal jurisdiction, because it was better to improve the use of
existing international bodies rather than to proliferate new ones. Another
expert went so far as to state that the Convention will be worthless unless
positive action to implement it is taken, and proposed an additional protocol
extending jurisdiction to courts other than those of the country where the
crime of genocide has been committed. Another expert stated means of
implementation of any resultant judgement were also important,.-,to deal with
the problem of a verdict being ignored, since those States and individuals most
likely to commit genocide are the ones least likely to co-operate, whereas more
civilized co-operators will probably not be in the dock. Some experts urged the
establishment of international, early-warning and fact-finding systems, and
emphasized the part that accurate and impartial publicity could play in
deterrence. Several experts commented on the problem of extradition, discussed
in paragraphs 62-63 below. Renewed proposals were also made concerning the
constructive role which a United Nations High Commissioner for Human Rights
could contribute to preventing and investigating allegations of genocide, and
in coordinating remedial work. Several commentators as well strongly emphasized
the crucial task of wider-public education in order to make the Convention more
effective.(52) II. The question of time-limitation 60.
In 1965, the question arose in some countries of applying the statute of
limitations provided for in their national laws::to cut off the further
prosecution of war crimes and of crimes against humanity after a certain time
limit. The Commission on Human Rights requested- the Secretary-General to
undertake a study of the problems raised in international law by war crimes and
crimes against humanity and a study of legal procedures to ensure that no
period of limitation should apply to such crimes. On the basis of that study,
the Commission began, in 1966, to prepare a draft Convention. The
matter was taken up in 1967 by the General Assembly,'which on 26 November 1968
completed and adopted the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity. The Convention entered
into force on 11 November 1970. See Appendix A To
date, the following 28 States have ratified or acceded to the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity: Afghanistan, Albania, Bolivia, Bulgaria, Byelorussian SSR, Cuba,
Czechoslovakia, Democratic People's Republic of Korea, Gambia, German
Democratic Republic, Guinea, Hungary, India, Kenya, Lao People's Democratic
Republic, Mongolia, Nigeria, Philippines, Poland, Romania, Rwanda, Saint
Vincent and the Grenadines, Tunisia, Ukrainian SSR, Union of Soviet Socialist
Republics, .Republic of Cameroon, Vietnam and Yugoslavia. Mexico has signed the
Convention but has not become a party to it. 61.
In the first 20 years after the Second World War, the Federal Republic of
Germany instituted legal proceedings against 0'7,716 persons suspected of
complicity in Nazi and war crimes. (53) All Nazi crimes were due to become
statute-barred by then existing German law on 31 December 1979. Due to public
protest in Germany and elsewhere, however, the statutory limitations were
abolished for the crimes of genocide and murder in 1979. The prosecution of a
number of remaining major Nazi leaders for genocide, if they are discovered,
remains possible. i2. Extradition 62.
On 3 December 1973 the General Assembly passed resolution 3074 (XXVIII), whose
text is as follows: "The General Assembly, Recalling its resolutions 2583 (XXIV) of 15 December 1969, 2712 (XXV) of 15 December 1970, 2840
(XXVI)of 18 December 1971 and 3020 (XXVII) of 18 December 1972, Taking into account the 'special need for international action in order to ensure the
prosecution and punishment of persons guilty of war crimes and crimes against humanity, Having considered the draft principles 6f international co-operation in the detection,
arrest, extradition and punishment of persons guilty of war crimes and crimes
against humanity, Declares
that the United Nations, in pursuance of the principles and purposes set forth
in the Charter concerning the promotion of cooperation between peoples and the
maintenance of international peace and security, proclaims the following
principles of international cooperation in the detection, arrest, extradition and
punishment of persons guilty of war crimes and crimes against humanity; 1.
War crimes and crimes against humanity, wherever they are committed, shall be
subject to investigation and the persons against whom there is evidence that
they have committed such crimes shall be subject to tracing, arrest, trial and,
if found guilty, to punishment 2
. Every State has the right to try its own nationals for war crimes or crimes
against humanity. 3.
States shall co-operate with each other on a bilateral and multilateral basis
with a view to halting and preventing war crimes and crimes against humanity,
and shall take the domestic and international measures necessary for that
purpose. 4.
States shall assist each other in detecting, arresting and bringing to trial
persons suspected of having committed such crimes and, if they are found
guilty, in punishing them. 5
. Persons against whom there is evidence that they have committed war crimes
and crimes against humanity shall be subject to trial and, if found guilty, to
punishment, as a general rule in the countries in which they committed those
crimes. In that connection, States shall cooperate on questions of extraditing
such persons. 6.
States shall cooperate with each other in the collection of information and evidence
which would help to bring to trial the persons in paragraph 5 above and shall
exchange such information. 7.
In accordance with article 1 of the Declaration on Territorial Asylum of 14
December 1967, States shall not grant asylum to any person with respect to whom
there are serious reasons for considering that he has committed a crime against
peace, a war crime or a crime against humanity. 8.
States shall not take any legislative or other measures which may be
prejudicial to the international obligations they have assumed in regard to the
detection, arrest, extradition and punishment of persons guilty of war crimes
and crimes against humanity. 9.
In co-operating with a view to the detection, arrest and extradition of persons
against whom there is evidence that they have committed war crimes and crimes
against humanity and, if found guilty, their punishment, States shall act in
conformity with the provisions of the Charter of the United Nations and of the
Declaration on Principles of International Law concerning Friendly Relations
and Co--operation among States in accordance with the Charter of the United
Nations." 63.
A number of experts have pointed to what they see as basic flaws in Article VII
of the Convention, because it allows each contracting State to interpret its
own laws in a given case. Mass murderers, in recent experience, have taken care
to seek refuge in sympathetic countries where all too often they have been
hidden or safe. Many bilateral treaties and national laws fail to declare genocide
to be an extraditable offence. Furthermore, most countries do not permit the
extradition of their own nationals, so that the perpetrator of a crime, once he
had returned to his own country, would not be extradited. To date, as far as is
known, no extradition for genocide under the convention has occurred at all.
The Special Rapporteur therefore believes that countries or at least States
parties should be required to amend their domestic laws to permit such
extradition if they do not prosecute offenders themselves. 64.
Genocide, alternatively, could be made a matter of universal jurisdiction: "aut
dedere aut punire", as is the case for crimes of piracy. Article 8 of
the new Convention against Torture of 10 December 1984 54/ reads as follows: 1.
The offences referred to in article 4 shall be deemed to be included as
extraditable offences in any extradition treaty existing between States
Parties. States Parties undertake to include such offences as extraditable
offences in every extradition treaty to be concluded between them. 2.
If a State Party which makes extradition conditional on the existence of a
treaty receives a request for extradition from another State Party with which
it has no extradition treaty, it may consider this Convention as the legal basis
for extradition in respect of such offences. Extradition shall be subject to
the other conditions provided by the law of the requested State. 3.
States Parties which do not make extradition conditional on the existence of a
treaty shall recognize such offences as extraditable offences between
themselves subject to the conditions provided by the law of the requested
State. 4.
Such offences shall be treated, for the purpose of extradition between States
Parties, as if they had been committed not only in the place in which they
occurred but also in the territories of the States required to establish their
jurisdiction in accordance with article 5, paragraph 1." Since
genocide may be held at least no less serious a matter than torture, the
Special Rapporteur recommends that similar provision to the above be made for
offences of genocide. 13. Calls upon the United Nations to take action 65.
No use equally is known to have been made to date of Article VIII of the
Genocide Convention, whereby: "Any
Contracting Party may call upon the competent organs of the United Nations to
take such action under the Charter of the United Nations as they consider
appropriate for the prevention and suppression of acts of genocide or any of
the other acts enumerated in article III." 66.
Article VIII of the Convention, while adding nothing new to the United Nations
Charter, is of some importance in that it states explicitly the right of States
to call upon the United Nations with a view to preventing-and suppressing
genocide and the responsibility of the competent organs of the 54/ 36/46,
Official Documents of the General Assembly, thirty-ninth session, supplement
No. 51. See-Appendix. United Nations in the matter. Furthermore, it is the only
article in the Convention for the Prevention and Punishment of Genocide which
deals with prevention of that crime, referring to the possibility of preventive
action by United Nations organs called upon by Parties to the Convention. It
should be noted, further, that such action by United Nations organs is
particularly of a humanitarian nature, the need and justification nobody should
deny. It would be desirable for the organs of the United Nations, in pursuance
of article VIII of the Convention, to exercise their powers in this field actively.
67.
The International Convention on the Suppression and Punishment of the Crime of Apartheid
(adopted by General Assembly resolution 3068 (XXVIII)) uses the text of article
VIII of the Convention on Genocide, with some slight drafting changes. Article VIII
of the Convention on the Crime of Apartheid reads: "Any
State party to the present Convention may call upon any competent organ of the
United Nations to take such action under the Charter of the United Nations as
it considers appropriate for the prevention and suppression of the crime of
apartheid.'' 68.
The value of an article specifying the role of the United Nations in the
prevention and suppression of genocide is especially evident, because until
some special agency is set up, there is no other international organization to
see to the implementation of the Convention. PART
III: FUTURE
PROGRESS: POSSIBLE WAYS FORWARD A. Ratification 69.
As of 1 May 1985, 96 States are parties to the Convention on Genocide: These
are: Afghanistan, Albania, Algeria, Argentina, Australia, Austria, Bahamas,
Barbados, Belgium, Brazil, Bulgaria, Burkina Faso, Burma, Byelorussian Soviet
Socialist Republic, Canada, Chile, China, Colombia, Costa Rica, Cuba, Cyprus,
Czechoslovakia, Democratic Kampuchea, Denmark, Dominican Republic, Ecuador,
Egypt, El Salvador, Ethiopia, Fiji, Finland, France, Gabon, Gambia, German
Democratic Republic, Federal Republic of Germany, Ghana, Greece, Guatemala,
Haiti, Honduras, Hungary, Iceland, India, Islamic Republic of Iran, Iraq,
Ireland, Israel, Italy, Jamaica, Jordan, Lao People's Democratic Republic,
Lebanon, Lesotho, Liberia, Luxembourg, Maldives, Mali, Mexico, Monaco,
Mongolia, Morocco, Mozambique, Nepal, Netherlands, New Zealand, Nicaragua,
Norway, Pakistan, Panama, Papua New Guinea, Peru, Philippines, Poland, Republic
of Korea, Romania, Rwanda, Saint Vincent and the Grenadines, Saudi Arabia,
Senegal, Spain, Sri Lanka, Sweden, Syrian Arab Republic, Togo, Tonga, Tunisia,
Turkey, Ukrainian Soviet Socialist .Republic, Union of Soviet Socialist
Republics, United Kingdom of Great Britain and Northern Ireland, Uruguay,
Venezuela, Viet Nam, Yugoslavia and Zaire. The
following Member States have signed, but not yet ratified: Bolivia and the
United States of America. The
following States have not yet signed or ratified: Angola, Antigua and-
Barbados, Bahrain, Bangladesh, Belize, Bhutan, Botswana, Burundi, Cape Verde,
Central African Republic, Chad, Comoros, Congo, Democratic People's Republic of
Korea, Democratic Yemen, Djibouti, Dominica, Equatorial Guinea, Ethiopia,
Grenada, Guinea, Guinea Bissau, Guyana, Holy See, Indonesia, Ivory Coast,
Kenya, Kiribati, Kuwait, Libyan Arab Jamahiriya, Liechtenstein, Madagascar,
Malawi, Malaysia, Malta, Mauritania, Mauritius, Namibia, Nauru, Niger, Nigeria,
Oman, Paraguay, Portugal, Qatar, St. Christopher and Nevis, Saint Lucia, Samoa,
San Marino, Sao Tome and Principe, Seychelles, Sierra Leone, Singapore, Solomon
Islands, Somalia, South Africa, Sudan, Suriname, Swaziland,,Switzerland,
Thailand, Trinidad and Tobago, Tuvalu, Uganda, United Arab Emirates, Republic
of Cameroon, United Republic of Tanzania, Vanuatu, Yemen, Zambia and Zimbabwe. 70.
The Special Rapporteur strongly recommends that the United Nations should renew
its efforts and take every feasible step to make ratification by the remaining
Member States of the Convention universal as quickly as possible. A lead by the
United States would be welcome (as Presidents Truman, Johnson, Nixon, Carter
and Reagan urged). It is similarly recommended that those States who have not
yet done so ratify the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity of 1968. B. Future options 71.
The fact remains that although the Convention has been in force since 12 January
1951, any ascertainable effect of it is difficult to quantify, whereas all to
much evidence continues to accumulate that acts of genocide are still being
committed in various parts of the world. Certainly in its present form, the
Convention therefore must be judged to be not enough. Further evolution of
international measures against genocide are necessary and indeed overdue. 72.
It is important that the historic momentum of the spirit of international unity
against genocide displayed by Nuremberg and the Convention should not be
allowed to falter or lapse. Failure to make effective international legal
provisions is likely to threaten peace, to drive nations to desperate
unilateral measures (such as the abduction of Adolf Eichmann in Argentina to
bring him to trial in Israel for genocidal acts in 1961), or to open excuses
for the deplorable violence of terrorist reprisals (55). For too many centuries war and violence have
been the standard method of avenging grievances, or of creating new ones. Now
in the era of atomic weapons, human society depends for its future survival
upon establishing in time alternative international legal means to resolve such
disputes peacefully. Despite the problems in doing so, the size of the risk
permits little further time for any more delay. 73.
In place of the law of the jungle of "vae victis" ("woe
to the conquered") Hugo Grotius laid the foundation for international law
during the terrible Thirty Years War in the Seventeenth Century with his work De
Jure Belli ac Pacis (Concerning the Laws of War and Peace).
Following the founding of the Red Cross two centuries later, a series of Geneva
and Hague Conventions were ratified seeking to establish international norms of
conduct even in warfare. There were however no agreed sanctions or procedure to
deal with war criminals. After the First World War, the defeated Germans
themselves held some war crime trials in Leipzig in 1922, but these were
unsuccessfully organized and 888 people out of the 901 charged in them were
acquitted. When in the Second World War awareness of the extraordinary scale of
the Nazi crimes became widespread, a European Advisory Commission on War Crimes
was set up to consider, as it was told by the French "an enemy who has
sought to annihilate whole nations, who has elevated murder to a political
system, so that we no longer have the duty of punishing merely those who commit
but also those who plan the crime" (56) As early as January 1942 the
representatives of nine occupied countries conferred in London and issued the
St. James's Declaration that "international solidarity is necessary to
avoid the repression of these acts of violence simply by acts of vengeance on the
part of the general public and in order to satisfy the sense of justice of the
civilized world" (57). "The
Declaration announced that punishment. for war crimes, whoever committed them,
was now a principal war aim of the governments at the conference. It also made
clear the intention to bring to justice not only those who themselves
physically perpetrated such crimes, but those leaders who ordered them. The St.
James Declaration was approved by Britain, the United States and the USSR, and
significantly, expressed disgust not only at atrocity but at the idea of mere
vengeance: it implied a desire for some form of judicial proceeding to determine
guilt and satisfy a sense of justice. The St. James's conference was followed
by one practical step: the United Nations War Crimes Commission was set up in
London in 1943 to collect and collate information on war crimes and criminals. 58/ At the Moscow
Conference of Foreign Ministers in November 1943, Britain, the United States
and the Soviet Union had issued a joint declaration condemning Nazi atrocities
in occupied Europe. This stated that 'at the time of the granting of any
armistice to any government which may be set up in Germany, those German
officers and men and members of the Nazi Party who have been responsible for or
who have taken part in the above atrocities, massacres and executions, will be
sent back to the countries in which their abominable deeds were done in order
that they may be judged and punished according to the laws of those liberated
countries and of the Free Governments which will be erected therein'." 74.
Although a historic impetus of international agreement achieved the
unprecedented establishment of the Nuremberg and Tokyo Tribunals, these were
open to the accusation that they were set up ad hoc to enable victors,
to pass judgement on vanquished. It would be a preferable concept to have
instead an impartial but respected international body with permanent authority.
None the less the final Count in the Nuremberg Charter broke new ground by
charging defendants with "Crimes against Humanity" (59) a term used
to cover the persecution of racial and religious groups and the wholesale
exploitation of peoples. Doenitz suggested in his memoirs that the acts the
Tribunal had examined were a purely German affair: Germans, he said, should
have been allowed to "investigate and then bring to justice those who had
been responsible for the in human enormities that had taken place". But
what some of the international lawyers at Nuremberg hoped was that the trial
would be the foundation of a new legal order. They wanted international law to
be advanced and to govern the future conduct of nations. Robert Jackson
reported to President Truman subsequently that the London agreement, prior to
Nuremberg, had for the first time made explicit that: "to persecute,
oppress,. or do violence to individuals or minorities on political, racial, or
religious grounds in connection with such a war; or to exterminate, enslave or
deport civilian populations is an international crime and that for the
commission of such crimes individuals are responsible." (60) However
once the International Military Tribunal at Nuremberg finished its work, there
was no international criminal court. President Truman welcomed Biddle's
recommendation that the United Nations be invited to draft a code of
international criminal law. It has not yet been drafted. As historians of the
Nuremberg cases observe, "it is in the broadest sense a political question
whether nations prefer [Page 40] to
have same objective body of law and an impartial institution to administer it
or whether they prefer to settle disputes and fulfil their ambitions by
force". (61) 75.
It has equally been suggested that the influence of historical events also
caused the character of the Convention to constitute more protest against the
immediate past crimes than to create an effective instrument for the prevention
or repression of genocide. (62) Critics have in fact alleged that the
Convention represents at best almost a dead letter, and at worst has been
perverted into a weapon of political warfare, (63) instead of being an
instrument to liberate and reconcile mankind. What
should, and can be done? 76.
One basic difficulty is that although the Convention concentrates on punishment
of the crime, this is nearly meaningless at the international level in the
absence of an International Penal Tribunal. Hence, it is only the Governments
of States in the territories of which the crime was committed, that can
institute proceedings for its punishment. However, in the case of
"domestic" genocides, these are generally committed by or with the
complicity of Gevernments, with the bizarre consequence that the Governments
would be required to prosecute themselves. In actual practice, mass murders are
protected by their own Governments, save in exceptional cases, where these
Governments have been overthrown. Thus in Equatorial Guinea, Macias was found
guilty of a number of crimes, including genocide, and executed. (64) In
Kampuchea, however, Pol Pot is still at large, protected by his own army, and
presumably also in some measure by the continued international recognition of
his régime. 77.
There exists support for a Supplementary Convention or Protocols to improve the
Convention, though consensus would be hard to achieve amongst all Governments.
(65) It is possible, and indeed to be hoped,
though improvable, that the existence of the Convention may have deterred more
genocide from being committed. But as in attitudes to improving the United
Natons human rights' effectiveness generally, too often respect for State
sovereignty, domestic and territorial integrity can, and does, take precedence
over the concern for protection against genocide. In these circumstances, there
is a need for some new ideas or for institutions, relatively independent of the
deliberations of the delegations of member States, such as an International
Penal Court, and a High Commissioner for Human Rights, or else for forms of
organized action outside the United Nations, by for example, the international
non-governmental organizations. The recent United Nations support for the new
Convention on Torture (reproduced as an appendix to this study) may afford
fresh grounds for optimism, as well as some useful parallels. It is important
to be practical and realistic, but also to work hard and without delay in view
of the gravity of the subject. C. Proposals 1. Prevention 78.
Punishment after the event does not meet the priority problem of preventing
great loss of life. Those personalities who are psychologically prepared to
commit genocide are not always likely to be deterred by retribution, at least
in this world. Perhaps, the Convention’s most conspicuous weakness is that it
insufficiently formulates preventive measures. Such international short—term
and long—term action would need to relate to different stages in the evolution
of a genocidal process — anticipation of its happening; early warning of its
commencement; and action to be taken at the outset of or during a genocide
itself to stop it. 79.
Intelligent anticipation of potential cases could be based on a data bank of
continuously updated information, which might enable remedial, deterrent or
averting measures to be planned ahead. Reliable information is the essential
oxygen for human rights: this could be facilitated by the development of a
United Nations satellite communications network. Comparisons could be made with
the lessons, both positive and negative, of previous cases. Experience
international conciliators or mediators, from the United Nations and its
agencies or other bodies such as the International Committee of the Red Cross,
could serve to defuse tension. 80.
H.G. Wells rightly stated that "Human history becomes more and more a race
between education and catastrophe". Another highly important area of study
is interdisciplinary research (to be co—ordinated perhaps by the United Nations
University) into the psychological character and motivation of individuals and
groups who commit genocide or racism, or the psychopathic dehumanizing of
vulnerable minorities or scapegoats. In all human rights work, it is essential
to go beyond condemnation of violations to analysing their causation. 81.
The results of such research could help form one part of a wide educational
programme throughout the world against such aberrations, starting at an early
age in schools. Without a strong basis of international public support, even
the most perfectly redrafted Convention will be of little value. Conventions
and good Governments can give a lead, but the mobilization of public awareness
and vigilance is essential to guard against any recurrence of genocide and
other crimes against humanity and human rights. There has recently occurred an
encouraging change from preoccupation with particular genocides to wider
concern for effective measures to deal with the general phenomenon itself. 82.
As a further safeguard, public awareness should be developed internationally to
reinforce the individual’s responsibility, based on the knowledge that it is
illegal to obey a superior order or law that violates human rights. Although
some Governments may be reluctant to agree, such a concept has been an honoured
tradition in many different parts of the world. Gandhi’s and Martin Luther
King’s ideas on civil disobedience to unjust laws were developments of the
earlier thinking of people such as Thoreau, who went to prison rather than
acquiesce in the forced return of runaway slaves to their owners. (Thoreau in
turn based his philosophy on the ideas of Granville Sharp who in the 1770’s
resigned from the London War Office rather than authorize arms to put down the
American revolution; Sharp’s ideas in turn helped to inspire Jefferson and
others who drafted the Declaration of Independence.) All these people followed
their conscience, at personal danger; the safeguarding of human rights in the
final resort will always need to depend upon such integrity and courage. 2. Early warning 83.
In cases where evidence appears of an impending genocidal conflict, mounting
repression, increasing polarization or the first indications of an unexpected
case, an effective early warning system could help save several thousands of
lives. This requires an efficient coordinating network, maintained in a state
of permanent readiness, which could possibly also watch for early indications
of mass famine and exoduses of refugees in conjunction with bodies such as the
Office of the United Nations Disaster Relief Coordinator and the International
Committee of the Red Cross. 84.
On an early warning alert being received, the steps to be taken could include:
the investigation of allegations; activating different organs of the United
Nations and related organizations, both directly and through national
delegations, and making representations to national Governments and to
interregional organizations for active involvement; seeking support of the
international press in providing information; enlisting the aid of other media
to call public attention to the threat, or actuality, of genocidal massacre
asking relevant racial, communal and religious leaders, in appropriate cases,
to intercede, and arranging the immediate involvement of suitable mediators and
conciliators at the outset. Finally, there are the possibility of sanctions
which could be applied with public support, by means of economic boycotts, the
refusal to handle goods to or from offending States, and selective exclusion
from participation in international activities and events. Representations
would also be made to Governments to enlist their support in the application of
sanctions. 3. An international body to deal with genocide 85.
Cogent support has been expressed for the establishment of a new impartial and
respected international body whose special concern would be to deal over-all
with genocide. Such a body could perhaps be created under the "competent
organs" Article VIII of the Convention. Support for such a body has been
expressed, inter alia, by the Government of Spain. A constructive possible
formulation for such a body has been proposed by a non-governmental
organization, the Baha'i International: "We believe
that, at the present time, the most effective means of preventing and
controlling genocide is through the establishment by the United Nations of a
new international body dealing exclusively with genocide and charged with
responsibility for considering allegations of genocide, carrying out
investigations in connection with those allegations and taking urgent steps to
put a stop to genocide wherever it is known to be taking place. Since secrecy
is the greatest ally of any Government that seeks to engage in genocide, and
international publicity and condemnation the greatest enemy, it might be expected
that the opprobrium that would attach to any Government which was identified as
a violator of the Convention by a high-level international body of known
competence and impartiality would, on its own, act as a deterrent to that
Government, quite apart from any action that the international body itself was
able to generate. We accordingly suggest that consideration be given to
revising the existing Convention by adding to it appropriate provisions for the
creation of a Committee on Genocide whose existence would derive directly from
the Convention and which would concern itself exclusively with the
subject-matter contained in its parent Convention. We envisaged that
this Committee would concern itself primarily with questions of fact rather
than with questions of law. It would, we envisage, hold a 'watching brief' on
genocide: it would be the body to which any allegations of genocide were
automatically referred and it would be responsible for investigating those
allegations. In order to enable it to react effectively in cases where there
were strong and reliable indications that genocide was, in fact, taking place,
the Committee should, we suggest, be empowered to (a) invite the State party
concerned to submit its observations with regard to the allegations of
genocide; and (b) if it decided that the situation warranted it, designate one
or more of its members to make a confidential inquiry and to report to the
Committee urgently. In short, we envisage the Committee being given powers in
this regard similar to those proposed for the Torture Committee in the
Convention against torture and other cruel, inhuman or degrading treatment or
punishment. We envisage that
the Committee on Genocide, in common with other bodies created under the
provisions of international human rights instruments (which it would very
closely resemble in membership and procedures), would report annually to the
General Assembly, but we suggest that the Committee should also be empowered to
bring any situations of urgency to the immediate attention of the
Secretary-General of the United Nations. We believe that the advantages of
establishing a Committee under the provisions of the Convention would be: (a) To remove the
subject of genocide as far as possible from the political arena; (b) To attract a
high-calibre 'independent expert' membership; (c) To speed the
international response to genocidal situations by obviating the necessity for
cases of genocide to proceed through the hierarchical mechanisms of the United
Nations human rights system; (d) To provide the
high-profile, international focus for genocide that is currently lacking. We are, of course,
aware that any proposed revision of the existing Convention must be requested
by a State party and must then win the approval of the United Nations General
Assembly and we are fully conscious of the difficulties attendant upon
obtaining such approval. Nevertheless, we feel that it is appropriate to
consider this course of action, bearing in mind the status of genocide as the
major 'crime against humanity', the disturbing fact that genocide persists in
the contemporary world, and the urgent need for determined international action
to combat it. Failing agreement on the creation of a Committee on Genocide
under the provisions of the Convention, we would suggest that a Working Group
on Genocide be established under the aegis of the Commission on Human
Rights." 4. An International Human Rights Tribunal or Court 86.
Support has been expressed by, inter alia, the Government of El Salvador that:
"Regarding the possibility of setting up an international penal tribunal
as proposed in article VI of the Convention on the Prevention and Punishment of
the Crime of Genocide, the Government of El Salvador considers that, in view of
the international importance of this crime, it would be appropriate to set up
an international penal court competent to judge this and similar crimes.
However, the binding and enforceable character of the decisions of such a court
would require to be formally stated in the international instrument
establishing it." The
Government of Morocco also suggests "the establishment of a full—scale
international court with a prosecutor’s office and an investigating arm".
The Government of Chad likewise supports the idea of an international penal
tribunal and an international body entrusted with carrying out investigations.
It might obviate much argument about which massacres technically are, or are
not, genocide, if such a Tribunal or Court dealt with all major crimes against
humanity. 87.
Other opinion and replies indicate a preference for instituting universality of
jurisdiction, or for both proposals to provide a "fail-safe" or
double system of safeguard. 88.
The previous study (E/CN.4/Sub.2/416) concluded with a recommendation for
universal jurisdiction: "... since no
international criminal court has yet been established, the question of
universal punishment should be considered again if it is decided to prepare new
international instruments for the prevention and punishment of genocide, since
in practice, even if a Government were to commit serious acts of genocide there
would be, as there has always been, some doubt as to the possibility of
indicting it, unless it were replaced by a regime that would take the necessary
legal action. While recognizing the political implications of the application
of the principle of universal punishment for the crime of genocide, the Special
Rapporteur remains convinced that the adoption of this principle would help to
make the Genocide Convention more effective. Moreover, the adoption of the
principle should not automatically entail the obligation to prosecute persons
guilty of genocide. It would merely be an option that could be used,
particularly in the case of Governments, in the light of all the circumstances
and of the advisability of taking appropriate action. Moreover, a new
international instrument on genocide, establishing the principle of universal
jurisdiction, would offer the choice between extradition and the punishment of
the crime by the State on whose territory the guilty person was found." 90.
Such a reform would of course not preclude stronger measures in each nation’s
own laws against genocide, which should also be urged. D. Conclusions 91.
The reforms recommended will, like most things worthwhile in human progress,
not be easy. They would however be the best living memorial to all the past
victims of genocide. To do nothing, by contrast, would be to invite
responsibility for helping cause future victims. PART IV: LIST OF RECOMMENDATIONS 92.
The principal recommendations of the present Special Rapporteur are contained
in paragraphs 50, 55, 57, 41, 55, 54, 64, 70, 79, 80, 81, 82, 83, 84, 85,
86-88), 90 and 91 supra. APPENDIX A: Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity. PREAMBLE The States Parties to the present Convention, Recalling
resolutions of the General Assembly of the United Nations 3 (I) of 13 February
1946 and 170 (II) of 31 October 1947 on the extradition and punishment of war
criminals, resolution 95 (I) of 11 December 1946 affirming the principles of
international law recognized by the Charter of the International Military
Tribunal, Nurnberg, and the judgement of the Tribunal, and resolutions
2184(XXI) of 12 December 1966 and 2202(XXI) of 16 December 1966 which expressly
condemned as crimes against humanity the violation of the economic and
political rights of the indigenous population on the one hand and the policies
of apartheid on the other, Recalling
resolutions of the Economic and Social Council of the United Nations 1074 D
(XXXIX) of 28 July 1965 and 1158 (XLI) of 5 August 1966 on the punishment of
war criminals and of persons who have committed crimes against humanity, Noting
that none of the solemn declarations, instruments or conventions relating to
the prosecution and punishment of war crimes and crimes against humanity made
provision for a period of limitation, Considering
that war crimes and crimes against humanity are among the gravest crimes in
international law, Convinced
that the effective punishment of war crimes and crimes against humanity is an
important element in the prevention of such crimes, the protection of human
rights and fundamental freedoms, the encouragement of confidence, the
furtherance of co-operation among peoples and the promotion of international
peace and security, Noting
that the application to war crimes and crimes against humanity of the rules of
municipal law relating to the period of limitation for ordinary crimes is a
matter of serious concern to world public opinion, since it prevents the
prosecution and punishment of persons responsible for those crimes, Recognizing
that it is necessary and timely to affirm in international law, through this
Convention, the principle that there is no period of limitation for war crimes
and crimes against humanity, and to secure its universal application, Have
agreed as follows: Article 1 No
statutory limitation shall apply to the following crimes, irrespective of the
date of their commission: (a)
War crimes as they are defined in the Charter of the International Military
Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (1) of 13
February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the
United Nations, particularly the "grave breaches" enumerated in the
Geneva Conventions of 12 August 1949 for the protection of war victims; (b)
Crimes against humanity whether committed in time of war or in time of peace as
they are defined in the Charter of the International Military Tribunal,
Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February
1946 and 95 (I) of 11 December 1946 of the General Assembly of the United
Nations, eviction by armed attack or occupation and inhuman acts resulting from
the policy of apartheid, and the crime of genocide as defined in the 1948
Convention on the Prevention and Punishment of the Crime of Genocide, even if
such acts do not constitute a violation of the domestic law of the country in
which they were committed. Article 2 If
any of the crimes mentioned in article I is committed, the provisions of this
Convention shall apply to representatives of the State authority and private
individuals who, as principals or accomplices, participate in or who directly
incite others to the commission of any of those crimes, or who conspire to
commit them, irrespective of the degree of completion, and to representatives
of the State authority who tolerate their commission. Article 3 The
States Parties to the present Convention undertake to adopt all necessary
domestic measures, legislative or otherwise, with a view to making possible the
extradition, in accordance with international law, of the persons referred to
in article II of this Convention. Article 4 The
States Parties to the present Convention undertake to adopt, in accordance with
their respective constitutional processes, any legislative or other measures
necessary to ensure that statutory or other limitations shall not apply to the
prosecution and punishment of the crimes referred to in articles 1 and 2 of
this Convention and that, where they exist, such limitations shall be
abolished. Article 5 This
Convention shall, until 31 December 1969, be open for signature by any State
Member of the United Nations or member of any of its specialized agencies or of
the International Atomic Energy Agency, by any State Party to the Statute of
the International Court of Justice, and by any other State which has been
invited by the General Assembly of the United Nations to become a Party to this
Convention. Article VI This
Convention is subject to ratification. Instruments of ratification shall be
deposited with the Secretary-General of the United Nations. Article VII This
Convention shall be open to accession by any State referred to in article 5.
Instruments of accession shall be deposited with the Secretary- General of the
United Nations. Article 8 1.
This Convention shall enter into force on the ninetieth day after the date of
the deposit with the Secretary-General of the United Nations of the tenth
instrument of ratification or accession. 2.
For each State ratifying this Convention or acceding to it after the deposit of
the tenth instrument of ratification or accession, the Convention shall enter
into force on the ninetieth day after the date of the deposit of its own
instrument of ratification or accession. Article 9 1.
After the expiry of a period of ten years from the date on which this
Convention enters into force, a request for the revision of the Convention may
be made at any time by any Contracting Party by means of a notification in
writing addressed to the Secretary-General of the United Nations. 2. The
General Assembly of the United Nations shall decide upon the steps, if any, to
be taken in respect of such a request. 1.
This Convention shall be deposited with the Secretary-General of the United
Nations. 2.
The Secretary-General of the United Nations shall transmit certified copies of
this Convention to all States referred to in article 5. 3.
The Secretary-General of the United Nations shall inform all States referred to
in article V of the following particulars: (a)
Signatures of this Convention, and instruments of ratification and accession
deposited under articles 5, 6 and 7; (b)
The date of entry into force of this Convention in accordance with article 8; (c)
Communications received under article 9. Article 11 This
Convention, of which the Chinese, English, French, Russian and Spanish texts
are equally authentic, shall bear the date of 26 November 1968. IN
WITNESS WHEREOF the undersigned, being duly authorized for that purpose, have
signed this Convention. APPENDIX B: Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted
and opened for signature, ratification and accession by General Assembly
resolution 39/46 of 10 December 1984 [entry into force 26 June
1987] The
States Parties to this Convention, Considering
that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world, Considering
the obligation of States under the Charter, in particular Article 55, to
promote universal respect for, and observance of, human rights and fundamental
freedoms, Having
regard to article 5 of the Universal Declaration of Human Rights and article 7
of the International Covenant on Civil and Political Rights, both of which
provide that no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment, Having
regard also to the Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted by the General Assembly on 9 December 1975, Desiring
to make more effective the struggle against torture and other cruel, inhuman or
degrading treatment or punishment throughout the world, Have
agreed as follows: PART I Article 1 1.
For the purposes of this Convention, the term "torture" means any act
by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. 2.
This article is without prejudice to any international instrument or national
legislation which does or may contain provisions of wider application. Article 2 1.
Each State Party shall take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under its
jurisdiction. 3.
An order from a superior officer or a public authority may not be invoked as a
justification of torture. Article 3
General
comment on its implementation 1.
No State Party shall expel, return ("refouler") or extradite a person
to another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture. 2.
For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including,
where applicable, the existence in the State concerned of a consistent pattern
of gross, flagrant or mass violations of human rights. Article 4 1.
Each State Party shall ensure that all acts of torture are offences under its
criminal law. The same shall apply to an attempt to commit torture and to an
act by any person which constitutes complicity or participation in torture. 2.
Each State Party shall make these offences punishable by appropriate penalties
which take into account their grave nature. Article 5
1.
Each
State Party shall take such measures as may be necessary to establish its
jurisdiction over the offences referred to in article 4 in the following cases:
(b) When the alleged offender is a
national of that State; (c) When the victim is a national of
that State if that State considers it appropriate. 2.
Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over such offences in cases where the alleged
offender is present in any territory under its jurisdiction and it does not
extradite him pursuant to article 8 to any of the States mentioned in paragraph
I of this article. 3.
This Convention does not exclude any criminal jurisdiction exercised in
accordance with internal law. Article 6 1.
Upon being satisfied, after an examination of information available to it, that
the circumstances so warrant, any State Party in whose territory a person
alleged to have committed any offence referred to in article 4 is present shall
take him into custody or take other legal measures to ensure his presence. The
custody and other legal measures shall be as provided in the law of that State
but may be continued only for such time as is necessary to enable any criminal
or extradition proceedings to be instituted. 3.
Any person in custody pursuant to paragraph I of this article shall be assisted
in communicating immediately with the nearest appropriate representative of the
State of which he is a national, or, if he is a stateless person, with the
representative of the State where he usually resides. 4.
When a State, pursuant to this article, has taken a person into custody, it
shall immediately notify the States referred to in article 5, paragraph 1, of
the fact that such person is in custody and of the circumstances which warrant
his detention. The State which makes the preliminary inquiry contemplated in
paragraph 2 of this article shall promptly report its findings to the said
States and shall indicate whether it intends to exercise jurisdiction. Article 7 1.
The State Party in the territory under whose jurisdiction a person alleged to
have committed any offence referred to in article 4 is found shall in the cases
contemplated in article 5, if it does not extradite him, submit the case to its
competent authorities for the purpose of prosecution. 2.
These authorities shall take their decision in the same manner as in the case
of any ordinary offence of a serious nature under the law of that State. In the
cases referred to in article 5, paragraph 2, the standards of evidence required
for prosecution and conviction shall in no way be less stringent than those
which apply in the cases referred to in article 5, paragraph 1. 3.
Any person regarding whom proceedings are brought in connection with any of the
offences referred to in article 4 shall be guaranteed fair treatment at all
stages of the proceedings. Article 8 1.
The offences referred to in article 4 shall be deemed to be included as
extraditable offences in any extradition treaty existing between States
Parties. States Parties undertake to include such offences as extraditable
offences in every extradition treaty to be concluded between them. 2.
If a State Party which makes extradition conditional on the existence of a
treaty receives a request for extradition from another State Party with which
it has no extradition treaty, it may consider this Convention as the legal
basis for extradition in respect of such offences. Extradition shall be subject
to the other conditions provided by the law of the requested State. 3.
States Parties which do not make extradition conditional on the existence of a
treaty shall recognize such offences as extraditable offences between
themselves subject to the conditions provided by the law of the requested
State. 4.
Such offences shall be treated, for the purpose of extradition between States
Parties, as if they had been committed not only in the place in which they
occurred but also in the territories of the States required to establish their
jurisdiction in accordance with article 5, paragraph 1. Article 9 1.
States Parties shall afford one another the greatest measure of assistance in
connection with criminal proceedings brought in respect of any of the offences
referred to in article 4, including the supply of all evidence at their
disposal necessary for the proceedings. Article 10 1.
Each State Party shall ensure that education and information regarding the
prohibition against torture are fully included in the training of law
enforcement personnel, civil or military, medical personnel, public officials
and other persons who may be involved in the custody, interrogation or
treatment of any individual subjected to any form of arrest, detention or
imprisonment. 2.
Each State Party shall include this prohibition in the rules or instructions
issued in regard to the duties and functions of any such person. Article 11 Each
State Party shall keep under systematic review interrogation rules,
instructions, methods and practices as well as arrangements for the custody and
treatment of persons subjected to any form of arrest, detention or imprisonment
in any territory under its jurisdiction with a view to preventing any cases of
torture. Article 12 Each
State Party shall ensure that its competent authorities proceed to a prompt and
impartial investigation, wherever there is reasonable ground to believe that an
act of torture has been committed in any territory under its jurisdiction. Article 13 Each
State Party shall ensure that any individual who alleges he has been subjected
to torture in any territory under its jurisdiction has the right to complain
to, and to have his case promptly and impartially examined by, its competent
authorities. Steps shall be taken to ensure that the complainant and witnesses
are protected against all ill-treatment or intimidation as a consequence of his
complaint or any evidence given. Article 14 1.
Each State Party shall ensure in its legal system that the victim of an act of
torture obtains redress and has an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as possible. In
the event of the death of the victim as a result of an act of torture, his
dependants shall be entitled to compensation. 2.
Nothing in this article shall affect any right of the victim or other persons
to compensation which may exist under national law. Article 15 Each
State Party shall ensure that any statement which is established to have been
made as a result of torture shall not be invoked as evidence in any
proceedings, except against a person accused of torture as evidence that the
statement was made. Article 16 1.
Each State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or punishment
which do not amount to torture as defined in article I, when such acts are
committed by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. In particular,
the obligations contained in articles 10, 11, 12 and 13 shall apply with the
substitution for references to torture of references to other forms of cruel,
inhuman or degrading treatment or punishment. 2.
The provisions of this Convention are without prejudice to the provisions of
any other international instrument or national law which prohibits cruel,
inhuman or degrading treatment or punishment or which relates to extradition or
expulsion. PART II Article 17 1.
There shall be established a Committee against Torture (hereinafter referred to
as the Committee) which shall carry out the functions hereinafter provided. The
Committee shall consist of ten experts of high moral standing and recognized
competence in the field of human rights, who shall serve in their personal
capacity. The experts shall be elected by the States Parties, consideration
being given to equitable geographical distribution and to the usefulness of the
participation of some persons having legal experience. 2.
The members of the Committee shall be elected by secret ballot from a list of
persons nominated by States Parties. Each State Party may nominate one person
from among its own nationals. States Parties shall bear in mind the usefulness
of nominating persons who are also members of the Human Rights Committee
established under the International Covenant on Civil and Political Rights and
who are willing to serve on the Committee against Torture. 3.
Elections of the members of the Committee shall be held at biennial meetings of
States Parties convened by the Secretary-General of the United Nations. At
those meetings, for which two thirds of the States Parties shall constitute a
quorum, the persons elected to the Committee shall be those who obtain the
largest number of votes and an absolute majority of the votes of the
representatives of States Parties present and voting. 4.
The initial election shall be held no later than six months after the date of
the entry into force of this Convention. At. Ieast four months before the date
of each election, the Secretary-General of the United Nations shall address a
letter to the States Parties inviting them to submit their nominations within
three months. The Secretary-General shall prepare a list in alphabetical order
of all persons thus nominated, indicating the States Parties which have nominated
them, and shall submit it to the States Parties. 5.
The members of the Committee shall be elected for a term of four years. They
shall be eligible for re-election if renominated. However, the term of five of
the members elected at the first election shall expire at the end of two years;
immediately after the first election the names of these five members shall be
chosen by lot by the chairman of the meeting referred to in paragraph 3 of this
article. 6.
If a member of the Committee dies or resigns or for any other cause can no
longer perform his Committee duties, the State Party which nominated him shall
appoint another expert from among its nationals to serve for the remainder of
his term, subject to the approval of the majority of the States Parties. The
approval shall be considered given unless half or more of the States Parties
respond negatively within six weeks after having been informed by the
Secretary-General of the United Nations of the proposed appointment. 7.
States Parties shall be responsible for the expenses of the members of the
Committee while they are in performance of Committee duties. (amendment (see
General Assembly resolution 47/111 of 16 December 1992); status of
ratification) . Article 18 1.
The Committee shall elect its officers for a term of two years. They may be
re-elected. 2.
The Committee shall establish its own rules of procedure, but these rules shall
provide, inter alia, that: (a) Six members shall constitute a
quorum; (b) Decisions of the Committee shall be
made by a majority vote of the members present. 3.
The Secretary-General of the United Nations shall provide the necessary staff
and facilities for the effective performance of the functions of the Committee
under this Convention. 4.
The Secretary-General of the United Nations shall convene the initial meeting
of the Committee. After its initial meeting, the Committee shall meet at such
times as shall be provided in its rules of procedure. 5.
The States Parties shall be responsible for expenses incurred in connection with
the holding of meetings of the States Parties and of the Committee, including
reimbursement to the United Nations for any expenses, such as the cost of staff
and facilities, incurred by the United Nations pursuant to paragraph 3 of this
article. (amendment (see General Assembly resolution 47/111 of 16 December
1992); status of ratification) Article 19 1.
The States Parties shall submit to the Committee, through the Secretary-General
of the United Nations, reports on the measures they have taken to give effect
to their undertakings under this Convention, within one year after the entry
into force of the Convention for the State Party concerned. Thereafter the
States Parties shall submit supplementary reports every four years on any new
measures taken and such other reports as the Committee may request. 2.
The Secretary-General of the United Nations shall transmit the reports to all
States Parties. 3.
Each report shall be considered by the Committee which may make such general
comments on the report as it may consider appropriate and shall forward these
to the State Party concerned. That State Party may respond with any
observations it chooses to the Committee. 4.
The Committee may, at its discretion, decide to include any comments made by it
in accordance with paragraph 3 of this article, together with the observations
thereon received from the State Party concerned, in its annual report made in
accordance with article 24. If so requested by the State Party concerned, the
Committee may also include a copy of the report submitted under paragraph I of
this article. Article 20 1.
If the Committee receives reliable information which appears to it to contain
well-founded indications that torture is being systematically practised in the
territory of a State Party, the Committee shall invite that State Party to
co-operate in the examination of the information and to this end to submit
observations with regard to the information concerned. 2.
Taking into account any observations which may have been submitted by the State
Party concerned, as well as any other relevant information available to it, the
Committee may, if it decides that this is warranted, designate one or more of
its members to make a confidential inquiry and to report to the Committee
urgently. 3.
If an inquiry is made in accordance with paragraph 2 of this article, the
Committee shall seek the co-operation of the State Party concerned. In
agreement with that State Party, such an inquiry may include a visit to its
territory. 4.
After examining the findings of its member or members submitted in accordance
with paragraph 2 of this article, the Commission shall transmit these findings
to the State Party concerned together with any comments or suggestions which
seem appropriate in view of the situation. 5.
All the proceedings of the Committee referred to in paragraphs I to 4 of th is
article s hall be con fidential , and at all stages of the proceedings the
co-operation of the State Party shall be sought. After such proceedings have
been completed with regard to an inquiry made in accordance with paragraph 2,
the Committee may, after consultations with the State Party concerned, decide
to include a summary account of the results of the proceedings in its annual
report made in accordance with article 24. Article 21 1.
A State Party to this Convention may at any time declare under this article
that it recognizes the competence of the Committee to receive and consider
communications to the effect that a State Party claims that another State Party
is not fulfilling its obligations under this Convention. Such communications
may be received and considered according to the procedures laid down in this
article only if submitted by a State Party which has made a declaration
recognizing in regard to itself the competence of the Committee. No
communication shall be dealt with by the Committee under this article if it
concerns a State Party which has not made such a declaration. Communications
received under this article shall be dealt with in accordance with the following
procedure; (a)
If a
State Party considers that another State Party is not giving effect to the
provisions of this Convention, it may, by written communication, bring the
matter to the attention of that State Party. Within three months afler the
receipt of the communication the receiving State shall afford the State which
sent the communication an explanation or any other statement in writing
clarifying the matter, which should include, to the extent possible and
pertinent, reference to domestic procedures and remedies taken, pending or
available in the matter; (b)
If the
matter is not adjusted to the satisfaction of both States Parties concerned
within six months after the receipt by the receiving State of the initial
communication, either State shall have the right to refer the matter to the
Committee, by notice given to the Committee and to the other State; (c)
The
Committee shall deal with a matter referred to it under this article only after
it has ascertained that all domestic remedies have been invoked and exhausted
in the matter, in conformity with the generally recognized principles of
international law. This shall not be the rule where the application of the
remedies is unreasonably prolonged or is unlikely to bring effective relief to
the person who is the victim of the violation of this Convention; (d)
The
Committee shall hold closed meetings when examining communications under this
article; (e)
Subject
to the provisions of subparagraph (c), the Committee shall make available its
good offices to the States Parties concerned with a view to a friendly solution
of the matter on the basis of respect for the obligations provided for in this
Convention. For this purpose, the Committee may, when appropriate, set up an ad
hoc conciliation commission; (f)
In any
matter referred to it under this article, the Committee may call upon the
States Parties concerned, referred to in subparagraph (b), to supply any
relevant information; (g)
The
States Parties concerned, referred to in subparagraph (b), shall have the right
to be represented when the matter is being considered by the Committee and to
make submissions orally and/or in writing; (h)
The
Committee shall, within twelve months after the date of receipt of notice under
subparagraph (b), submit a report: (i) If a solution within the terms of
subparagraph (e) is reached, the Committee shall confine its report to a brief
statement of the facts and of the solution reached; (ii) If a solution within
the terms of subparagraph (e) is not reached, the Committee shall confine its
report to a brief statement of the facts; the written submissions and record of
the oral submissions made by the States Parties concerned shall be attached to
the report. In
every matter, the report shall be communicated to the States Parties concerned.
2.
The provisions of this article shall come into force when five States Parties
to this Convention have made declarations under paragraph 1 of this article.
Such declarations shall be deposited by the States Parties with the
Secretary-General of the United Nations, who shall transmit copies thereof to
the other States Parties. A declaration may be withdrawn at any time by
notification to the Secretary-General. Such a withdrawal shall not prejudice
the consideration of any matter which is the subject of a communication already
transmitted under this article; no further communication by any State Party
shall be received under this article after the notification of withdrawal of
the declaration has been received by the Secretary-General, unless the State
Party concerned has made a new declaration. Article 22 1.
A State Party to this Convention may at any time declare under this article
that it recognizes the competence of the Committee to receive and consider
communications from or on behalf of individuals subject to its jurisdiction who
claim to be victims of a violation by a State Party of the provisions of the
Convention. No communication shall be received by the Committee if it concerns
a State Party which has not made such a declaration. 2.
The Committee shall consider inadmissible any communication under this article
which is anonymous or which it considers to be an abuse of the right of
submission of such communications or to be incompatible with the provisions of
this Convention. 3.
Subject to the provisions of paragraph 2, the Committee shall bring any
communications submitted to it under this article to the attention of the State
Party to this Convention which has made a declaration under paragraph I and is
alleged to be violating any provisions of the Convention. Within six months,
the receiving State shall submit to the Committee written explanations or
statements clarifying the matter and the remedy, if any, that may have been
taken by that State. 4.
The Committee shall consider communications received under this article in the
light of all information made available to it by or on behalf of the individual
and by the State Party concerned. 5.
The Committee shall not consider any communications from an individual under
this article unless it has ascertained that: (a)
The
same matter has not been, and is not being, examined under another procedure of
international investigation or settlement; (b)
(b)
The individual has exhausted all available domestic remedies; this shall not be
the rule where the application of the remedies is unreasonably prolonged or is
unlikely to bring effective reliefto the person who is the victim of the
violation of this Convention. 6.
The Committee shall hold closed meetings when examining communications under
this article. 7.
The Committee shall forward its views to the State Party concerned and to the
individual. 8.
The provisions of this article shall come into force when five States Parties
to this Convention have made declarations under paragraph 1 of this article.
Such declarations shall be deposited by the States Parties with the
Secretary-General of the United Nations, who shall transmit copies thereof to
the other States Parties. A declaration may be withdrawn at any time by
notification to the Secretary-General. Such a withdrawal shall not prejudice
the consideration of any matter which is the subject of a communication already
transmitted under this article; no further communication by or on behalf of an
individual shall be received under this article after the notification of withdrawal
of the declaration has been received by the SecretaryGeneral, unless the State
Party has made a new declaration. Article 23 The
members of the Committee and of the ad hoc conciliation commissions which may
be appointed under article 21, paragraph I (e), shall be entitled to the
facilities, privileges and immunities of experts on mission for the United
Nations as laid down in the relevant sections of the Convention on the
Privileges and Immunities of the United Nations. Article 24 The
Committee shall submit an annual report on its activities under this Convention
to the States Parties and to the General Assembly of the United Nations. Article 25 1.
This Convention is open for signature by all States. 2. This Convention is
subject to ratification. Instruments of ratification shall be deposited with
the Secretary-General of the United Nations. Article 26 This
Convention is open to accession by all States. Accession shall be effected by
the deposit of an instrument of accession with the SecretaryGeneral of the
United Nations. Article 27 1.
This Convention shall enter into force on the thirtieth day after the date of
the deposit with the Secretary-General of the United Nations of the twentieth
instrument of ratification or accession. 2.
For each State ratifying this Convention or acceding to it after the deposit of
the twentieth instrument of ratification or accession, the Convention shall
enter into force onthe thirtieth day after the date of the deposit of its own
instrument of ratification or accession. Article 28 1.
Each State may, at the time of signature or ratification of this Convention or
accession thereto, declare that it does not recognize the competence of the
Committee provided for in article 20. 2.
Any State Party having made a reservation in accordance with paragraph I of
this article may, at any time, withdraw this reservation by notification to the
Secretary-General of the United Nations. Article 29 1
. Any State Party to this Convention may propose an amendment and file it with
the Secretary-General of the United Nations. The SecretaryGeneral shall
thereupon communicate the proposed amendment to the States Parties with a
request that they notify him whether they favour a conference of States Parties
for the purpose of considering an d voting upon the proposal. In the event that
within four months from the date of such communication at least one third of
the States Parties favours such a conference, the SecretaryGeneral shall
convene the conference under the auspices of the United Nations. Any amendment
adopted by a majority of the States Parties present and voting at the
conference shall be submitted by the Secretary-General to all the States
Parties for acceptance. 2.
An amendment adopted in accordance with paragraph I of this article shall enter
into force when two thirds of the States Parties to this Convention have
notified the Secretary-General of the United Nations that they have accepted it
in accordance with their respective constitutional processes. 3.
When amendments enter into force, they shall be binding on those States Parties
which have accepted them, other States Parties still being bound by the
provisions of this Convention and any earlier amendments which they have
accepted. Article 30 1.
Any dispute between two or more States Parties concerning the interpretation or
application of this Convention which cannot be settled through negotiation
shall, at the request of one of them, be submitted to arbitration. If within
six months from thc date of the request for arbitration the Parties are unable
to agree on the organization of the arbitration, any one of those Parties may
refer the dispute to the International Court of Justice by request in
conformity with the Statute of the Court. 2.
Each State may, at the time of signature or ratification of this Con vention or
accession thereto, declare that it does not consider itself bound by paragraph
I of this article. The other States Parties shall not be bound by paragraph I
of this article with respect to any State Party having made such a reservation.
3.
Any State Party having made a reservation in accordance with paragraph 2 of
this article may at any time withdraw this reservation by notification to the
Secretary-General of the United Nations. Article 31
1.
A State Party may denounce this Convention by written notification to the
Secretary-General of the United Nations. Denunciation becomes effective one
year after the date of receipt of- the notification by the Secretary-General. 2.
Such a denunciation shall not have the effect of releasing the State Party from
its obligations under this Convention in regard to any act or omission which
occurs prior to the date at which the denunciation becomes effective, nor shall
denunciation prejudice in any way the continued consideration of any matter
which is already under consideration by the Committee prior to the date at
which the denunciation becomes effective. 3.
Following the date at which the denunciation of a State Party becomes
effective, the Committee shall not commence consideration of any new matter
regarding that State. Article 32 The
Secretary-General of the United Nations shall inform all States Members of the
United Nations and all States which have signed this Convention or acceded to
it of the following: (a)
Signatures,
ratifications and accessions under articles 25 and 26; (b)
The
date of entry into force of this Convention under article 27 and the date of
the entry into force of any amendments under article 29; (c)
Denunciations
under article 31. Article 33 1.
This Convention, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations. 2.
The Secretary-General of the United Nations shall transmit certified copies of
this Convention to all States. ___________________ 1. Art. 11. 2. L. J. Macfarlane, The
Theory and Practice of Human Rights (London, Temple Smith, 1985), pp.
28-29; Leo Kuper, Genocide (London, Pengiun Books, 1981); J. N. Porter, Genocide
and Human Rights (Washington, University Press of America, 1982); Leo
Kuper, The Prevention of Genocide (New Haven, Yale University Press,
1985); the United Nations Study on Human Rights and Mass Exodus by
Sadruddin Aga Khan in 1981 (E/CN.4/1503), together with the consequent report
in 1983 of the Secretary-General of the Unieted Nations (A/38/538); the Report
of the Working Group on Enforced or involuntary Disappearances
(E/CN.4/1985/15); and the Reports on Summary or Arbitrary Executions
(E/CN.4/1984/29 and E/CN.4/1985/17). 3. The word
"genocide" was coined by the Polish jurist Professor Raphael Lemkin,
from the Greek word "genos" (race, nation or tribe) and the Latin
"cide" (killing): Axis Rule
in Occupied Europe (Washington, D.C.:
Carnegie Endowment for International Peace, 1944). Lemkin was the first main
authority on the subject. Lately there has been considerable new interest in
the study of genocide, and the Institute of the International Conference on the
Holocaust and Genocide in Jerusalem in 1985 has begun to publish a newsletter
on the subject. 4. Antonio Planzer, Le crime du génocide (St. Gallen, F. Schwald
A.G., 1956); Raphael Lemkin, "Le
génocide" Revue Internationale du droit pénal,1946, No. 10. 5. Jean-Paul Sartre,
"On Genocide", in Richard A. Falk and others eds., Crimes of War (New
York: Random House, 1971). 6. Irving Horowitz, Taking
Lives: Genocide and State Power (New Brunswick, Transaction Books, 1980). See
also helen Fein, Accounting for Genocide (New York: Free Press, 1979), and
Israel Charny ed., Towards the Understanding and Prevention of Genocide
(Epping, United Kingdom, Bowker, and Boulder, United States of America,
Westview Press, 1984). 7. J. Billig, L'Allemagne et
le génocide (Paris, Editions du Centre, 1950); Raul Hilberg, The Destruction of
the European Jews (Chicago, Quadrangle Books, 1961). 8. Trial of the Major 9. Ibid., vol. XIX, pp.
497-498 (concluding speech by Sir Hartley Shawcross). See also Ann Tusa and
John Tusa, The Nuremberg Trial (London, MacMillan, 1983), 10. Speech on the meaning of
the fortieth anniversary of VE day, 8 May 1985. 11.
Arnold Toynee, Experiences (London, Oxford University Press, 1969). 12.
General von Trotha issued an extermination order; water-holes were poisoned and
the African peace emissaries were shot. In all, three quarters of the Herero
Africans were killed by the Germans then colonizing present-day Namibia, and
the Hereros were reduced from 80,000 to some 15,000 starving refugees. See P.
Fraenk, The Namibians (London, Minority Rights Group, 1985). 13.
At least 1 million, and possibly well over half of the Armenian population, are
reliably estimated to have been killed or death marched by independent
authorities and eye-witnesses. This is corroborated by reports in United
States, German and British archives and of contemporary diplomats in the
Ottoman Empire, including those of its ally Germany. The German Ambassador,
Wangenheim, for example, on 7 July 1915 wrote "the government is indeed
pursuing its goal of exterminating the Armenian race in the Ottoman
Empire" (Wilhelmstrasse archives). Though the successor Turkish Government
helped to institute trials of a few of those responsible for the massacres at
which they were found guilty, the present official Turkish contention is that
genocide did not take place although there were many casualties and dispersals
in the fighting, and that all the evidence to the contrary is forged. See,
inter alia, Viscount Bryce and A. Toynbee, The Treatment of Armenians in the
Ottoman Empire 1915-16 (London, HMSO, 1916): G. Chaliand and Y. Ternon, Genocide
des Armeniens (Brussels, Complexe, 1980); H. Morgenthau, Ambassador
Morgenthau's Story (New York, Doubleday, 1918); J. Lepsius, Deutschland
und Armenien (Potsdam, 1921: shortly to be published in French by Fayard,
Paris); R.G. Hovanissian, Armenia on the Road to Independence (Berkeley,
University of California, 1967); Permanent People's Tribunal, A Crime of
Silence (London, Zed Press, 1985); K. Gurun, Le Dossier Armenien
(Ankara, Turkish Historical society, 1983); B. Simsir and others, Armenians
in the Ottoman Empire (Istanbul, Bogazici University Press, 1984); T. Ataov,
A Brief Glance at the "Armenian Question" (Ankara, University
Press, 1984); V. Goekjian, The Turks before the Court of History (New
Jersey, Rosekeer Press, 1984); Commission of the Churches on International
Affairs, Armenia, the Continuing Tragedy (Geneva, World Council of
Churches, 1984); Foreign Policy Institute, The Armenian Issue (Ankara,
F.P.I., 1982). 14.
Between 100,000 - 250,000 Jews were killed in 2,000 pogroms by Whites, Cossacks
and Ukrainian nationalists. See Z. Katz ed., Handbook of Major Soviet
Nationalities (New York, Free Press, 1975), p.362; A. Sachar, A History
of the Jews (New York, Knopf, 1967). 15.
The Tutsi minority government first liquidated the Hutu leadership in 1965, and
then slaughtered between 100,000 and 300,000 Hutu in 1972. See Rene Lemarchand,
Selective Genocide in Burundi (London, Minority Rights Group, 1974) and
Leo Kuper, The Pity of it All (London, Duckworth, 1977). 17. It is estimated that at
least 2 million people were killed by Pol Pot's Kher Rouge government of
Democratic Kampuchea, out of a total population of 7 million. Even under the
most restricted definition, this constituted genocide, since the victims
included target groups such as the Chams (an Islamic minority) and the Buddhist
monks. See Izvestia, 2 November 1978; F. Ponchaud, Cambodia Year Zero
(London, Penguin Books, 1978); W. Shawcross, Sideshow; Kissinger, Nixon and
the Destruction of Cambodia (New York, Simon and Schuster, 1979); V. Can
and others, Kampuchea Dossier: The Dark Years (Hanoi, Viet Nam
Courier, 1979); D. Hawk, The Cambodia Documentation Commission (New
York, Columbia University, 1983); L. Kuper, International Action against
Genocide (London, Minority Rights Group, 1984). 18. See evidence presented
to United Nations Human Rights Commission and Sub-Commission, 1981-1984, and R.
Cooper, The Baha'is of Iran (London, Minority Rights Group, 1985). 19. E.A. Daes,
"Protection of Minorities under the Genocide Convention", Zenion,
Festschrift f[u]r Pan J. Zepos, Vol. II, (Athens, Katsikalis Verlaf, 1973). 20. See E/CN.4/Sub.2/416,
paras. 50-53. 21. For discussion of the
definition of such terms, see E/CN.4/Sub.2/416, paras. 59-78. 22. E.A. Daes, op. cit.,
in footnote 19 to this study. 23. E/794, pp. 21, 27 and
28. See E/CN.4/Sub.2/416, paragraphs 441-461. 24. E/CN.4/1101, E/CN-4/Sub.2/332; Provisional
SR/EICN.4/Sub.2/SR.2/SR.658. See E/CN.4/sub.2/416, paragraphs 462-478. 25. See paragraph 26, supra.
The critics include for example Stefan Glaser, Droit
international pénal conventionnel (Brussels, Bruylant, 1970), and Laplaza, El
delito de genocidio (Buenos Aires, Ediciones Arayu, 1953). 26. Official Records of
the General Assembly, Third Session, Part 1, Sixth Committee, 69th, 74th,
75th and 128th meetings. 27. The proposal (A/C.6/214)
to include economic groups at the 69th meeting was withdrawn at the 75th
meeting. 28. United Nations Economic
and Social Council, p. 723; and United Nations Legal Committee, 14 October
1948: Bolivia, Haiti, Cuba. 29. "By leaving
political and other groups beyond the purported protection the authors of the
Convention also left a wide and dangerous loop-hole for any Government to
escape the human duties under the Convention by putting genocide into practice
under the cover of executive measures against political or other groups for
reasons of security, public order or any other reason of state. If perhaps
political reasons cannot be adduced as proper, excuse for the genocidal
measures against a group protected under Article II, then very likely such
governmental policy will be defended on economic, social or cultural grounds.
The national, ethnical, racial or religious character of the group in such case
does not constitute the object of the alleged acts of destruction but the
measures are said to be taken against the same persons as members of an
economic, social or cultural, i.e. unprotected, group. . . . the
crime of genocide in its most serious form is the deliberate destruction of
physical life of individual human beings by reason of their membership of any
human collectivity as such." Pieter Drost, The Crime of State, II:
Genocide (Leyden, A.W. Sythoff, 1959). 31. See E/CN-4/1985/14, paragraphs 22-26. 32. E/CN.4/1075, Chapter VI(b). 33 Official Records of the
General Assembly, Twenty-eighth Session, Supplement No. 30 (A/9030), pp.75-77. 34. E/CN-4/Sub.21416, paragraphs 404-5. 35..EICN-4/i985/14. See
also the Study on Implementation and International Jurisdiction to suppress and
punish apartheid (E/CN-4/1426) of 19 January 1981. E/CN-4/Sub.2/1981.
36. See, inter alia,
statement by Dr. Daniel Lack of the World Jewish Congress to the 1984
Sub-Commission E/CN.4/Sub.2/1984/SR.4. 37 The Charter and Judgement
of the Nüremberg Tribunal: history and analysis", memorandum submitted to
the Secretary-General (A/CN.4/5), pp. 39 38 Trial of the Major War
Criminals before the International Military Tribunal Proceedings, vol. I
Nüremberg, 1947, p. 234. 39 Trial of Japanese War
Criminals; Documents (Washington, United States Government Printing Office,
1946), p. 40. 40 Report of the
International Law Commission covering its second session, 5 June to 29 July
1950 (A/1316), p. 12. The Commission had been asked by the general
Assembly, in resolution 177 (II) of 21 November 1947, to formulate the
Nuremberg principles. By resolution 488 (V) of 12 December 1950, the General
Assembly decided to send that formulation to the Governments of Member States
for their observations and requested the Commission to take account of them in
preparing the draft code of offences against the peace and security of mankind.
41 Report of the
International Law Commission covering the work of its sixth session, 3 June -
28 July 1954 (A/2693), p. 11 42. Report of the Committee
on International Criminal Jurisdiction on its session held from 1 to 31 August
1951 (A/2136), annex 1, p. 23. 43. Report of the 1953
Committee on International Criminal Jurisdiction, 27 July - 20 August 1953
(A/2645), P. 25. 44. Ibid., para. 87. 45. Article 47 of the German
Military provided that: "If the execution of a military order in the
course of duty violates the criminal law, then the superior officer giving the
order will bear the sole responsibility therefore. However, the obeying
subordinate will share the punishment of the participant (1) if he has exceeded
the order given to him, or (2) if it was within his knowledge that the order of
his superior officer concerned an act by which it.was intended to commit a
civil or military crime or transgressions". 46. A. Ruckerl, The
Investigation 1985/6 page 27 47. A/C.6/78, p. 146. 48. L. Kuper, International
Action Against Genocide (London, Minority Rights Group, 1984).' . . 49. See N. Robinson, The
Genocide Convention (New York, Institute of Jewish Affairs, 1960); L.
Kuper, Genocide (London, Penguin, 1981) chapter 2;- and "--'-
E/CN-4/Sub.2/416, paragraphs 190-249. 50. There have also been
non-governmental tribunals, such as the Permanent People's Tribunal held in
Paris on the Armenians case in 1984, whose evidence and verdict is published as
A Crime of Silence (London, Zed Press, 1985). 51. E/CN.4/Sub.2/SR.658, 684 and 736. 52. E/CN.4/Sub.2/1984/SR.3, SR.4, SR.5 and
Corrigendum. 53. A. Ruchert, op. cit.,
p. 75; and see replies of the Federal Republic and the German Democratic
Republic Governments to the Questionnaire for the present study. Elsewhere
however it has been suggested that even if Josef Mengele, for example, had been
discovered in Paraguay, his extradition, would have been barred because of a 20
year time-limit in Paraguay for criminal prosecution. 55. More than 50 Turkish
diplomats, who certainly were innocent of any possible involvement in the
Ottoman Empire's treatment of Armenians, have been assassinated by terrorists.
The reform of legitimate international measures to deal with genocide would be
a highly constructive way to cut support for terrorism. 56. United Kingdom Lord
Chancellor's Office, LCO 2.2978. See A. and J. Tusa, op cit. 57. Telford Taylor, International
Conciliation, No. 450 (April 1949). 58/ It was made up of
representatives of 17 nations - but had no Russian member. Stalin would only
join if every Soviet Republic were given separate representation. This was
refused. 59. A term
coined by Professor [Hersch] Lauterpacht [1897-1960]. 60. 15
October 1946 ([Robert H.] Jackson papers [Library of Congress]). 61. A. and J. Tusa, op. cit. 62. Dr. Lack, statement for
the World Jewish Congress to the Sub-Commission, E/CN4/Sub.2/1984/SR.4. 63. Leo Kuper, op.cit. 64. In a report on The
Trial of Macias in Equatorial in Guinea (International
Commission of Jurists, Geneva, 1979), the Legal Officer of the ICJ, Dr.
Alejandro Artucio, concluded (i) that Macias was wrongly convicted of genocide,
the Convention not having been signed or ratified by Equatorial Guinea, nor the
crime of genocide incorporated in its laws, and (ii) that though mass murder
was established, the intentional destruction of national, ethnic or religious
groups, in terms of the Convention, was not proved. In an article on "The
Human Rights Commission: The Equatorial Guinea Case", Human Rights
Quarterly (Vol. 3, No. 1), Randall Pegley expressed the view
that the action of the Macias régime against two ethnic groups, the Bubis and
Fernandinos, did fall within the United Nations definition of genocide but the
author did not address the specific issue of the validity of the charge of
genocide under the laws of Equatorial Guinea. In February 1984 it was reported
that two former leaders were being tried in absentia for genocide in
Bolivia. 65. Support for various
additional protocols was received from the replies, inter alia, of the
Governments of El Salvador and of Spain. |
| Document source: ONU |
Author: Benjamin Whitaker |
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