NEWSBYKARL HORBERG

Breaking apart the Genocide Convention article by article may seem to be an exercise in tedium but a clear understanding of the document is essential if we are to make genocide a thing of the past. A thorough history of the convention's drafting reveals a number of crucial points.

The Genocide Convention is by no means a perfect document. Yes, it is a product of political compromise, but politics is compromise. Would it have been more agreeable if a single country or person was charged with producing the document? The reconciliation of competing ideologies and viewpoints via consensus building does not always produce negative results. Although compromise excluded political and social groups from the definition it successfully blocked proposals that would have severely limited free speech such as banning certain types of organizations and prohibiting propaganda. There are no perfect documents and it is a little naïve of us to demand there should be.

While we are obligated to point out the Convention's imperfections we do it no justice by ignoring certain aspects of the document and substituting our own definitions. Subverting the legal definition renders the Convention toothless. We must strive to work within the confines of the Convention, no matter how constricting they are.

The Genocide Convention was nearing completion. The crime, the punishable acts, and the perpetrators had all been defined. It was now necessary to establish the entity responsible for prosecuting the crime.

In drafting the articles pertaining to prosecution and jurisdiction the triumvirate of experts took a rather expansive and radical approach. Article VII of the Secretariat draft recognizes universal jurisdiction by requiring states to "punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed." This would mean that states are responsible for prosecuting perpetrators of genocide regardless of where the crime took place or the nationally of the perpetrator.

Article IX committed states to hand over all persons guilty of genocide to an unspecified international court in cases where the state was unwilling to try offenders or if the state had supported the commission of genocide. However it should be noted that Lemkin opposed the inclusion of the first clause. He argued that such cases were of lesser importance. He, rather presciently, voiced his concern about offenders escaping punishment because of the complex process involved in turning over guilty parties to an international court.   Article X was submitted in two drafts. The first gave the International Court of Justice criminal jurisdiction in all matters connected with international crimes. The second provided than an international court be set up to try the crimes of genocide. Lemkin spoke out against an international court, warning that such an action might be premature.

So far the drafters of the Genocide Convention had established a definition and punishable acts. The next step was to clearly establish who could be held liable for genocide.

The Secretariat draft placed criminal liability for genocide on "rulers, public officials, and private individuals." In their commentary the experts stressed that the greatest responsibility for genocide prevention lies with rulers or statesmen. They also took the position that international law should concern itself with prosecuting "rulers" and that states should be in charge of prosecuting lesser public officials.

In a nod to the famed "Nuremberg defense" the Secretariat draft also prohibited "command of law or superior orders" as a justification of genocide. However, it did acknowledge that in some cases command of law or superior orders may constitute extenuating circumstances. This question would be left to the judge.

The Ad Hoc Committee unanimously voted to impose criminal liability on "heads of State, public officials or private individuals." Interestingly a Soviet proposal to include a prohibition of the Nuremberg defense was rejected. Other committee members explained that an in accordance with the definition of genocide an individual could not be held liable unless they possessed the requisite intent and orders were not sufficient to meet this requirement.

It goes without saying that the Genocide Convention addresses a particular crime. But it would be a toothless document if it stopped at the definition of that crime. It is necessary to outline the types of acts that are to be punished. Article III of the Genocide Convention enumerates these acts, but how did this article arrive at its final form? How have these acts been interpreted over the years?

The three experts in charge of the Secretariat draft sought to punish types of preparatory acts, including "setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide" or "issuing instructions or orders, and distributing tasks with a view to committing genocide." In their report the experts recognized that banning preparatory acts stretched the definition of criminal action and might be construed as being too distant from the crime of genocide itself. However, they concluded that punishment of these acts could be justified when weighed against the need to curb genocide.

The Ad Hoc draft condensed the Secretariat's language and settled on four categories: conspiracy to commit genocide, incitement to commit genocide, attempts to commit genocide, or complicity in any of the aforementioned acts. The Committee initially supported, but ultimately voted against, a clause punishing preparatory acts. The arguments was twofold, one that preparatory acts were difficult to define and second that any definitions already put forth would naturally already fall under the conspiracy and complicity paragraphs.

The Soviet delegate submitted a proposal to punish all "forms of public propaganda...aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of the acts of genocide." This proposal was rejected outright by the rest of the Committee because they feared it would be used to limit freedom of expression.

Perhaps the most discussed aspect of the Genocide Convention is Article II; the article which sets forth a definition the crime of genocide. In Axis Rule in Occupied Europe Lemkin defined genocide as:

"[A] coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion and economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individual belonging to such groups. Genocide is directed against individuals, not in their individual capacity, but as members of the national group."

The experts charged with producing the Secretariat Draft agreed that there should be a strict definition of genocide. Matters of international law should have precise definitions it was argued. Additionally, a broad definition would make it difficult to achieve the consensus necessary to ratify the Convention. This, however, is where agreement among the experts ended. De Vabres and Pella both disagreed with adding cultural genocide to the draft, arguing that this improperly extended the definition of genocide. Lemkin believed a destruction of a group's culture was nearly as bad as physical destruction of the group itself.  It was Lemkin that eventually won out.

On the eve of a new UN General Assembly it may be helpful to look back on the history of one of the body's most substantial contributions to international law.

The idea of an international treaty prohibiting genocide was first broached by Raphael Lemkin, the Polish lawyer who created the term "genocide." In a pamphlet published in 1946 Lemkin proposed that individuals who committed acts of genocide would be prosecuted by the country where the crime was committed. Additionally, he suggested that a special tribunal be set up to try any government or organization leaders who participated in genocide.

Dear President Obama:

Recently you have been accused of being a Nazi, a socialist, and/or a Nazi werewolf. While some of your critics are clearly insane they do have a point -- it's time to give up on health care reform. If the complete absence of any logical, rational, or coherent thought among these people has proven anything it's that someone, somewhere has failed them. This is why I urge you to begin an immediate and swift reform of the public school system. Because people need to know that Kristallnacht does not mean  "Night of the Single-Payer System."

Regards,

Karl

Amnesty International released a report criticizing the government of Timor-Leste for failing to prosecute those responsible for violence surrounding the country's independence.  President Jose Ramos-Horta did not react positively to the report, going as far as to suggest that the U.S. should be investigated for supplying weapons to Indonesia. CAVR estimated that 18,600 unlawful killings and disappearances occurred between 1974 and 1999.

A government official in Sri Lanka expressed similar reservations when the UN suggested an investigation into a video that allegedly shows a member of the Sri Lankan army executing unarmed Tamil rebels.

On the night of November 19, 1981 someone removed Griffiths Mxenge's ears. Mxenge was a lawyer and a political activist in Durban, South Africa. He divided his time between defending opponents of apartheid in court and working to free Nelson Mandela from prison. The man who ordered Mxenge's brutal murder was Dirk Coetzee.  When apartheid finally collapsed in 1994 Coetzee was a wanted man. As commander of a vicious counterinsurgency unit he had perpetrated a number of crimes against innocent civilians. But nearly sixteen years after Mxenge was killed the man behind his slaying was granted a full amnesty; his crimes had been forgiven in exchange for the truth.

While hybrid courts were a step in the direction of allowing post-atrocity societies ownership over their healing processes it was just a tiny step. As Westerners we are conditioned to accept that there is only one type of justice-that which is meted out by a person with a gavel and black robe. But justice can have many faces, and not all of them wear a scowl.

Criminal justice is a form of retributive justice. Its purpose is to punish the criminal and in doing so deter future criminal acts. Restorative justice, on the other hand, sees the community, not the individual, as the victim. It seeks to engage both the victim and the accused to work together in finding a peaceful reconciliation.

In the universe of international criminal law October 2, 1998 is a bright, shimmering star. It was on that day that Jean Paul Akayesu, school teacher and bourgmestre of the Taba commune, was sentenced to life imprisonment for his role in the Rwandan genocide. It was the first time since the Genocide Convention was adopted in 1948 that a person was convicted of genocide.

The ad hoc tribunals played an important role in ending impunity, but they were also instrumental in interpreting and developing international criminal law. Two examples are the Trial Chambers in Akayesu and Celebici which equated sexual violence with genocide and  elucidated command responsibility, respectively.

Even among the convictions of war criminals and maturation of international law there lurked flaws in the ad hoc system. For one, the tribunals were established in faraway lands (the ICTY in the Netherlands and the ICTR in Tanzania). They were removed from the context of the violence as well as set apart from the victims and societies they were charged with healing.