International law, Sixth edition
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International Law MALCOLM N. SHAW
and Discrimination in International Law, 2nd edn, The Hague, 2003.
282 i n t e r nat i o na l l aw Prohibition of genocide The physical protection of the group as a distinct identity is clearly the first and paramount factor. The Convention on the Prevention and Punishment of the Crime of Genocide signed in 1948 90 reaffirmed that genocide, whether committed in time of war or peace, was a crime under international law. Genocide was defined as any of the following acts com- mitted ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. The Convention, which does not have an implementational system, 91 provides that persons charged with genocide shall be tried by a competent tribunal of the state in the territory of which the act was committed or by an international penal tribunal. Several points should be noted. First, the question of intent is such that states may deny genocidal activity by noting that the relevant intent to destroy in whole or in part was in fact absent. 92 Secondly, the groups protected do not include political groups. 93 90 See e.g. W. Schabas, Genocide in International Law, Cambridge, 2000; N. Robinson, The Genocide Convention, London, 1960; R. Lemkin, Axis Rule in Occupied Europe, London, 1944; L. Kuper, Genocide, Harmondsworth, 1981, and International Action Against Geno- cide, Minority Rights Group Report No. 53, 1984; Genocide and Human Rights (ed. J. Porter), Washington 1982, and I. Horowitz, Taking Lives: Genocide and State Power, New Brunswick, 1980. See also N. Ruhashyankiko, Study on the Question of the Prevention and Punishment of the Crime of Genocide, 1978, E/CN.4/Sub.2/416; B. Whittaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Geno- cide, 1985, E/CN.4/Sub.2/1985/6; ‘Contemporary Practice of the United States Relating to International Law’, 79 AJIL, 1985, pp. 116 ff.; M. Shaw, War and Genocide, Oxford, 2003; C. Fournet, The Crime of Destruction and the Law of Genocide, Ashgate, 2007; M. N. Shaw, ‘Genocide and International Law’ in International Law at a Time of Perplexity (ed. Y. Dinstein), Dordrecht, 1989, p. 797, and G. Verdirame, ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’, 49 ICLQ, 2000, p. 578. 91 But see Sub-Commission resolution 1994/11. 92 See Kuper, Genocide, pp. 32–5, and N. Lewis, ‘The Camp at Cecilio Baez’, in Genocide in Paraguay (ed. R. Arens), Philadelphia, 1976, p. 58. See also Ruhashyankiko, Study, p. 25. 93 See e.g. Kuper, Genocide, pp. 25–30, and Ruhashyankiko, Study, p. 21. See also Robinson, Genocide Convention, p. 59. t h e p r o t e c t i o n o f h u m a n r i g h t s 283 Thirdly, the concept of cultural genocide is not included, 94 and fourthly there is virtually no mention of means to prevent the crime (although the obligation is stated). In the 1990s, the issue of genocide unfortunately ceased to be an item of primarily historical concern. Events in the former Yugoslavia and in Rwanda stimulated increasing anxiety in this context. The Statutes of both the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda provide for the prosecution of individuals for the crime of genocide and a significant case-law has now developed through these tribunals. 95 In addition, the question of state responsibility for the crime of genocide has been raised. 96 The Inter- national Court of Justice in the Case Concerning Application of the Con- vention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) was faced with Bosnian claims that Yugoslavia had violated the Genocide Convention. 97 The Court in its Order of 8 April 1993 on the Request for the Indication of Provisional Measures 98 held that article IX of the Convention 99 provided a valid jurisdictional basis, 100 while reaffirming 101 the view expressed in the Advisory Opinion on Reservations to the Genocide Convention that the crime of genocide ‘shocks the conscience of mankind, results in great losses to humanity . . . and is contrary to moral law and to the spirit and aims of the United Nations’. 102 The Court called upon both parties not to take any action that might aggravate or extend the dispute over the prevention or punishment of the crime of genocide. The government of 94 See e.g. Kuper, Genocide, p. 31; Robinson, Genocide Convention, p. 64, and Ruhashyankiko, Study, pp. 21 ff. 95 See further below, chapter 8, pp. 430 ff. 96 See further generally below, chapter 14. 97 ICJ Reports, 1993, pp. 3 and 325; 95 ILR, pp. 1 and 43. 98 ICJ Reports, 1993, pp. 3, 16; 95 ILR, pp. 1, 31. See also R. Maison, ‘Les Ordonnances de la CIJ dans l’Affaire Relative `a l’Application de la Convention sur la Pr´evention et la R´epression du Crime du G´enocide’, 5 EJIL, 1994, p. 381. 99 This provides that ‘disputes between the Contracting Parties relating to the interpreta- tion, 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’. 100 The Court dismissed other suggested grounds for its jurisdiction in the case, ICJ Reports, 1993, p. 18; 95 ILR, p. 33. 101 ICJ Reports, 1993, p. 23; 95 ILR, p. 38. 102 ICJ Reports, 1951, pp. 15, 23; 18 ILR, pp. 364, 370, quoting the terms of General Assembly resolution 96 (I) of 11 December 1946. 284 i n t e r nat i o na l l aw Yugoslavia (Serbia and Montenegro) was requested to take all measures within its power to prevent commission of the crime of genocide, and was specifically called upon to ensure that ‘any military, paramilitary or irreg- ular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide’. 103 These provisional measures were reaffirmed by the Court in its Order on Provisional Mea- sures of 13 September 1993 as measures which should be ‘immediately and effectively implemented’. 104 On 11 July 1996, the Court rejected the Preliminary Objections raised by Yugoslavia. 105 In particular, the Court emphasised that it followed from the object and purpose of the Genocide Convention that the rights and obligations contained therein were rights and obligations erga omnes and that the obligation upon each state to prevent and punish the crime of genocide was not dependent upon the type of conflict involved in the Download 7.77 Mb. 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