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«j Working Paper No. 55 - December 2010 THE DOMESTIC PROSECUTION OF GENOCIDE Jan Wouters Sten Verhoeven THE DOMESTIC PROSECUTION OF GENOCIDE Jan ...»

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Institute for International Law

j

Working Paper No. 55 - December 2010

THE DOMESTIC PROSECUTION OF GENOCIDE

Jan Wouters

Sten Verhoeven

THE DOMESTIC PROSECUTION OF GENOCIDE

Jan Wouters

Sten Verhoeven

ABSTRACT

Perpetrators of international crimes have increasingly been prosecuted. Whereas the

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

KEY WORDS

Genocide – National implementation of Genocide Convention – Protected groups – Mens rea of genocide –Direct and public incitement to genocide – Complicity in genocide – Jurisdiction over genocide AUTHOR(S) Jan Wouters Professor of International Law and International Organizations Director of the Leuven Centre for Global Governance Studies and the Institute for International Law, University Leuven Sten Verhoeven Senior Instructor University of Macau PhD Student Institute of International Law

ADDRESS FOR CORRESPONDENCE

jan.wouters@ggs.kuleuven.be SVerhoeven@umac.mo © 2010 by Jan Wouters and Sten Verhoeven. All rights reserved. No portion of this paper may be reproduced without permission of the authors.

Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

CONTENTS

1. INTRODUCTION

2. THE NEED FOR INCORPORATION IN DOMESTIC LAW

3. THE GROUPS PROTECTED BY THE GENOCIDE CONVENTION

4. THE MENS REA ELEMENT OF GENOCIDE

5. PUBLIC AND DIRECT INCITEMENT TO COMMIT GENOCIDE

6. COMPLICITY IN GENOCIDE

7. JURISDICTION OVER GENOCIDE

8. CONCLUDING REMARKS

1. INTRODUCTION

The present chapter deals with national perspectives on the prosecution of genocide.

It focuses on cases from various national jurisdictions. The purpose is not to identify all national laws dealing with genocide.1 Instead, we deal with certain problems national courts and tribunals have encountered in criminal cases, but partly also in non-criminal cases, dealing with the crime of genocide. The reasoning of national courts and tribunals may clarify various aspects of the Genocide Convention2 as well as national implementing legislation and may offer solutions for related problems with the Convention at the international level. As domestic case law forms part of State practice and could thus provide building blocks for custom impacting upon the Genocide Convention, studying national efforts does not only provide an insight in the law of genocide within the legal system at hand, but could equally enrich the international law of genocide.

2. THE NEED FOR INCORPORATION IN DOMESTIC LAW

Despite early general acceptance that genocide is a crime of international law3, the implementation of the Genocide Convention in national legislation has lagged behind. Article V of the Convention does require that States adopt the necessary legislation to give full effect to it, especially by the adoption of effective penalties, but as such it does not prescribe that States have to incorporate the precise definitions of the Convention in their criminal codes.4 The result was that a significant group of States did not adopt specific legislation on genocide, partially because of the mistaken belief that the crime already falls under ordinary criminal law provisions prohibiting murder and bodily harm. Yet, this point of view misses the exceptional nature of the crime of genocide: genocide is not an accumulation of individual killings, but it is the targeting of human beings because they belong to a group, a group which one seeks to destroy.5 It is this intent, the aim of destroying human beings because they belong to a national, ethnical, racial or religious group, that gives the crime of genocide its specific and horrendous nature. Furthermore, not all acts of genocide listed in Article II of the Genocide Convention will be punishable See for this exercise W.A. SCHABAS, Genocide in International Law, Cambridge, Cambridge University Press, 2000, 350-353; H. KREICKER, “National Prosecution of Genocide from A Comparative Perspective”, 5 International Criminal Law Review 2005, 313-327.





Convention on the Prevention and Punishment of the Crime of Genocide (1948), 78 U.N.T.S. 1951, 277.

The Genocide Convention is presently (November 2010) ratified by 141 States. The International Court of Justice held that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Rep.

1951, 23.

The vague wording of Article V was the result of stiff opposition by the United States because of federal concerns against inclusion of a provision which would in detail set out the national legislation States would have to adopt: W.A. SCHABAS, Genocide in International Law, Cambridge, Cambridge University Press, 2000, 346-348.

J.L. KUNZ, “The United Nations Convention on Genocide”, 43 American Journal of International Law 1948, 743; L.J. LEBLANC, “The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding”, 78 American Journal of International Law 1984, 370; D.L. NERSESSIAN, “The Razor‟s Edge: Defining and Protecting Human Groups under the Genocide Convention”, 36 Cornell International Law Journal 2003, 311-312; H. KREICKER, “National Prosecution of Genocide from a Comparative Perspective”, 5 International Criminal Law Review 2005, 323-324.

under common criminal law, for instance the deliberately inflicting of conditions of life calculated to bring about physical destruction of the group or the forcible transferring of children from one group to another. Acts of genocide in Yugoslavia and especially Rwanda caught these States off guard since they had no adequate means to prosecute alleged perpetrators of genocide. This was even the case for monist countries, for which international treaty law under certain conditions becomes part of domestic law upon ratification. As evidenced by Article V of the Genocide Convention, the provisions cannot be considered as self-executing since it is required that State parties enact the necessary legislation to effectively implement the Convention. Consequently, Rwanda, which had acceded to the Convention in 19756, had to adopt Organic Law No. 08/96 in order to launch prosecutions since it had not incorporated specific provisions about genocide in its domestic law. As to Belgium, although treaties which are self-executing are part of Belgian law and can be invoked before national courts7, Belgium did not prosecute Rwandans for the crime of genocide because it had only made genocide a criminal offence in 1999 despite its ratification of the Convention in 1951.8 The argument that the crime of genocide is laid down in customary international law and therefore need not be incorporated fails as well. First of all, some national legal systems do not accept that customary international law is part of the law of the land.

This was evidenced by Nulyarimma v Thompson, decided by the Federal Court of Australia.9 Although Australia was the second State to ratify the Genocide Convention and adopted already in 1949 the Genocide Convention Act, the Act did not incorporate the crime of genocide in Australian law because the government was of the opinion that genocide could be prosecuted by ordinary criminal law despite indications to the contrary.10 In Nulyarimma v Thompson two claims were combined.

The first consisted of an appeal against a decision of the Australian Capital Territory Available at: www.unhchr.ch/html/menu3/b/treaty1gen.htm Cour de Cassation, Franco-Suisse Le Ski, Arresten Cassatie 1971, 959; Cour de Cassation, Thonon, Rechtskundig Weekblad 1983-1984, 2315.

www.unhchr.ch/html/menu3/b/treaty1gen.htm; L. REYDAMS, “Belgium‟s First Application of Universal Jurisdiction: the Butare Four Case”, 1 Journal of International Criminal Justice 2003, 432. The Belgian Parliament had given its approval by Loi 26 June 1951, Moniteur Belge 11 January 1952. The crime of genocide was incorporated in the 16 June 1993 Loi relative à la répression des infractions graves aux conventions internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977, additionnels à ces conventions by the Loi relative à la répression de violations graves de droit international humanitaire, 10 February 1999, Moniteur Belge 23 March 1999. Members of Parliament were of the opinion that it would be possible to prosecute for acts of genocide committed before the incorporation of the crime in Belgian criminal law. This point of view is very likely influenced by the occurrence of genocide in Rwanda and aimed at foreclosing defence lawyers from arguing that the 1993 Loi as amended in 1999 could not be applied in national prosecutions of Rwandans because the crimes they had committed were not breaches of humanitarian law applicable in non-international armed conflict, but acts of genocide: see L. REYDAMS, “Universal Criminal Jurisdiction: The Belgian State of Affairs”, Criminal Law Forum 2000, 195. However, since the law does not explicitly determine

that it can be applied retroactively, it normally will not have this effect pursuant to Article 2 Code pénal:

L. DE SMET and F. NAERT, “De wet betreffen de bestraffing van ernstige schendingen van het internationaal humanitair recht: een internationaalrechtelijk perspectief‟, Working Paper No. 13, 15, available at: www.law.kuleuven.be/iir/nl/wp/WP/WP13n.pdf.

Nulyarimma v Thompson [1999] FCA 1192; 39 ILM 2000, 20. For analyses of the case: K. DAGLISH, “The Crime of Genocide: Nulyarimma v. Thompson”, 50 International and Comparative Law Quarterly 2001, 404; A.D. MITCHELL, “Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson”, 24 Melbourne University Law Review 2000, 15; B. SAUL, “The International Crime of Genocide in Australian Law”, 22 Sydney Law Review 2000, 527.

B. SAUL, “The International Crime of Genocide in Australian Law”, 22 Sydney Law Review 2000, 540Supreme Court, which had upheld a refusal by Thompson, the Registrar of the ACT Magistrate Court, to issue arrest warrants against politicians (including the then Prime Minister Howard) responsible for the “Ten point plan” and the Native Title Amendment Act 1998 which according to the applicants amounted to genocide. The second case concerned an application to strike out a proceeding launched by Mr.

Buzzacot on behalf of the Arabunna people against the Minister of Environment and the Minister for Foreign Affairs and Trade for failure to apply for world heritage listing of the lands of the Arabunna people, a failure which the applicants regarded as an act of genocide.11 The majority of the Federal Court held that although the prohibition of genocide is a peremptory norm of international law, it was not a crime under Australian law because Parliament had to legislate to incorporate custom in domestic law.12 The somewhat troubling result was that genocide was not a crime in Australia and instances of alleged genocide could not be prosecuted. The crime of genocide eventually became incorporated in Division 268 Criminal Code Act 1995 No. 12 (Cth) by the International Criminal Court (Consequential Amendments) Act No. 42 2002 (Cth).13 Second, even if custom could be invoked before national courts, this does not entail that courts can convict for genocide since criminal law strictly adheres to the maxim of nulla poena sine lege and customary international law, or conventional law for that matter, does not establish a precise penalty for the commission of genocide. In the Niyonteze case,14 a Rwandan mayor who was accused of inciting people to eliminate Tutsi‟s and moderate Hutu‟s, of having ordered the killing of specific persons, of having lured refugees out of a refugee camp to be killed and of not having prevented the massacre, stood trial and was convicted for war crimes committed in a noninternational armed conflict, but not for genocide. Since Switzerland was not a party to the Genocide Convention, the Military Divisional Tribunal held that charges of genocide could not be brought, even if Switzerland had a customary law-based duty to punish genocide, because it would fit uneasily with the principle of nulla poena sine lege.15 The Military Court of Appeal nuanced this position by holding that Switzerland had the competence to prosecute genocide if it was committed in an international armed conflict because Swiss criminal law allowed for the prosecution of violations of the customs of war, which included the customary prohibition of genocide. In any event, Switzerland became quickly party to the Genocide Nulyarimma v Thompson, 39 ILM 2000, §§ 2-3.

Ibid., 39 ILM 2000, §§ 18-20; § 27, § 36; §§ 32-33, § 53.

Available at: www.austlii.edu.au/au/legis/cth/num_act/2002.



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