The Prosecutor’s Dilemma- Strengths and Flaws of the Genocide Convention
| Author: |
Jongsok Oh
Student, Macquarie University Division of Law
|
| Issue: |
Volume 10, Number 3 (September 2003)
|
Contents:
- The unique strengths of the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention)[1]
have often been overshadowed by the difficulty of meeting the requirement of proving specific intent to commit genocide under Article
II. The Convention is a powerful instrument for any prosecutor contemplating actions to punish atrocities committed within the international
community. First, the crime of genocide entails jus cogens status. Second, the Convention is wide enough to punish acts that may
not immediately and directly cause the destruction of an ethnic group, but does indirectly lead to its destruction. But despite these
strengths, the Convention has not been frequently invoked by prosecutors. It will be argued that the reason behind the reluctance
to utilise the Convention is found in the difficulty of finding evidence required to prove specific genocidal intent necessary under
Article II. Finally, it will be asked whether recent developments in international law, including the decision in Prosecutor v Akayesu[2]
will have any effect on alleviating this difficulty of proving specific genocidal intent. Throughout this paper, recent experiences
in the Former Yugoslavia, as well as twentieth century Australia, will be analysed as illustrations.
- Two of the unique strengths of the Convention will be given attention. First, those who bring actions under the Convention can benefit
from the advantages entailing the jus cogens status of the crime of genocide. Second, they can also take advantage of the discretion
allowed to the courts in establishing acts of genocide. It allows genocide to be construed from a wide variety of acts, allowing
the court to punish those acts that indirectly cause genocide, as well as those acts that leads more directly to the genocide of
a given ethnic group.
- One of the unique strengths of the Convention can be found in the non-derogable obligations placed states to comply with its requirements.
Genocide is one of the few crimes in international law that is universally recognised to have jus cogens status.[3]
The violation of a jus cogens norm affects all persons within the international community. As stated in the Barcelona Traction Case,[4]
all states must enforce the prohibition against genocide as an obligatio erga omnes.[5]
By implication, all states have a general duty to act to stop acts of genocide.
- More specifically, the jus cogens status of the crime of genocide entails three distinct advantages to those seeking to bring actions
under the Convention. First, all states have a non-derogable duty to bring to justice anyone accused of having violated the Convention.
As argued by M Cherif Bassiouni, they must prosecute or extradite those who are suspected of being culpable to genocide, including
heads of states.[6]
They cannot grant impunity to those who had been accused of genocide by the operation of statutes of limitation,[7]
or because the culpable acts were committed during times of war, or for any other circumstances.[8]
Second, all states have a non-derogable duty to punish those who had been found by the court to have committed genocide. This duty
extends to those states that had not ratified the Convention.[9]
- As a recent example, it has been suggested that the Americans were unwilling to correctly identify the 1997 Rwandan massacres as ‘genocide’
precisely because they understood that such a characterisation would burden it with a duty to act to punish the perpetrators of those
acts.[10]
Finally, Article VIII of the Convention states that all states have a non-derogable duty to act to prevent acts of genocide from
occurring ex ante.[11]
In these specific ways, states have a non-derogable duty to comply with the Convention and to ensure its proper implementation. Consequently,
the judicial outcome of an action brought under the Convention will be respected by all states.
- Another unique strength of the Convention can be found in Article II, under which courts have a wide discretion to construe acts of
genocide to have occurred. This is important because acts of genocide are not simply limited to those acts directly causing the physical
death of the members of an ethnic group. It is argued that acts indirectly causing the destruction of that group can also be punished
using the Convention.[12]
Article II prohibits:
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, or religious group as such:
(a) killing members of the group
(b) causing serious bodily harm or mental harm to members of the group
(c) deliberately inflicting on the group conditions of life designed 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.[13]
- Subsection (a) ‘killing members of the group’ corresponds to more direct acts of genocide, in which individuals are massacred for
their affiliation with a particular ‘national, ethnical, or religious group as such’.[14]
But apart from these acts, many other acts can also give rise to culpability for genocide[15]
In subsections (b) - (e), the Convention’s progenitors seem to have implicitly recognised that genocide can occur without direct
physical killing that results in the immediate destruction of that group. It can also occur through a variety of ways that can indirectly
bring about its destruction.[16]
- To illustrate this point, the refugee crisis and rape of women to force impregnation in the Former Yugoslavia will be examined. It
is not suggested that the perpetrators of those acts had caused the immediate and direct destruction of the group. However, it will
be argued that the strength of the Convention lies in the fact that it is able to recognise that these acts can cause its destruction,
albeit more indirectly.
- The Convention can be used to charge that the internal displacement of civilians in the Former Yugoslavia was potentially acts of
genocide. Between March 1998 and June 1999, one and a half million Kosovo Albanians became internally displaced after being expelled
from their homes. About six hundred thousand Serbs were expelled from their homes in Croatia and the Muslim regions of Bosnia and
became internally displaced persons.[17]
The expulsion of these civilians were part of ‘ethnic cleansing’ policies which were aimed at creating an ethnically homogeneous
population in the given area.[18]
- Under Article II, those who had perpetrated the displacement of members of an ethnic group may become culpable under subsection (c),
which prohibits ‘deliberately inflicting on the group conditions of life designed to bring about its physical destruction in whole
or in part’.[19]
In the Former Yugoslavia, civilians removed from their homes were denied access to those goods essential to survival, such as food,
water, clothing, and shelter.[20]
Even when they returned to their homes, many internally displaced persons found themselves still deprived of basic necessities. Often,
they would find that their homes were occupied by new owners whose rights were prioritised over their own by laws and regulations
of the state.[21]
As a result, many were denied access to goods essential to survival, in particular houses and shelters, even after they returned
to their homes.[22]
- Deprived of basic necessities, many internally displaced persons became exposed to higher risks of mortality. In the period of seventeen
months between February 1998 and June 1999, refugees in Kosovo fell victim to a mortality rate over twice as high as the pre-conflict
rate.[23]
Approximately seven thousand ethnic Albanians have been estimated to have died during that period.[24]
The internal displacement of Kosovo Albanian civilians from their homes must be characterised as a genocidal act under subsection
(c), since they caused the deprivation of goods necessary for survival, leading to catastrophic mortality rates. Policies of removing
Kosovo Albanian civilians from their homes had caused the ‘physical destruction in whole or in part’ of that ethnic group. Consequently,
they can be characterised as potential acts of genocide under subsection (c).
- The Convention can also be used to charge that acts of rape to force impregnation in the Former Yugoslavia were potentially acts of
genocide. As noted by Tadeusz Maziowicki, rape of women to forcibly impregnate the victims was one of the most notorious features
of the civil war. Women were raped with the aim of impregnating them with children of the perpetrators’ ethnicity.[25]
The question to be determined here is whether the Convention can be used to prosecute those who had committed the mass rape of women
to force impregnation. It is generally accepted that rape to force impregnation can be, and historically has been, used as a tool
for genocide.[26]
- More specifically, the applicability of subsections (b) and (d) of the Convention to acts of rape to force impregnation will be examined.
First, subsection (b) prohibits acts causing ‘serious bodily harm or mental harm’ to members of the ethnic group. Women raped as
part of the ‘ethnic cleansing’ programs during the civil war in the Former Yugoslavia experienced severe physical and emotional abuse.
As a result of their experience, they became ‘shamed’ and ‘humiliated’, suffering from a ‘loss of integrity, dignity, and a sense
of personal security’.[27]
Many victims experienced social isolation, unable to speak out about their experiences fearing stigmatisation, even to their own
family members.[28]
The violent physical torture frequently accompanying their ordeal also caused severe physical pain to many victims.[29]
Given evidence that women in the Former Yugoslavia raped as victims of ‘ethnic cleansing’ suffered ‘serious bodily harm or mental
harm’, the perpetrators of those acts should be charged for potential acts of genocide under subsection (b).[30]
- Second, subsection (d) prohibits ‘measures intended to prevent births within the group’. Prosecutor v Karadzic and Mladic says that
perpetrators of the acts of rape had designed that their victims would no longer be able to reproduce the children of their own ethnic
group, but instead bear children of the perpetrators’ ethnicity. The perpetrators’ aim was to impregnate women with children of their
own ethnicity, ‘to prevent births within the group’.[31]
At the same time, they also sought to render the women unacceptable within their communities so that they would not be able to produce
children of their own ethnicity. Many umnarried victims often experienced difficulties in finding partners,[32]
while many married victims similarly found themselves rejected and abandoned by their husbands and families.[33]
The acts were designed to threaten the reproductive capacity of the ethnic community by jeopardizing marital relationships.[34]
Given evidence that the rape of women were designed to impregnate them with children of their own ethnicity, and to cause breakdown
of marriage relations within the community, the perpetrators of those acts can be charged for potential acts of genocide under subsection
(d).
- Despite its strengths noted above, the Convention has not been widely invoked to prosecute those culpable for genocide. In fact, Prosecutor
v Akayesu marked only the first time that an individual was brought to trial for committing genocide, and was convicted for that
crime.[35]
It will be seen that the reason why the Convention has not been invoked more extensively in international tribunals has been because
of the difficulties of producing evidence of specific genocidal intent. It should be noted that other significant reasons for the
historical reluctance by prosecutors to bring actions under the Convention can be found. For example, David Kader argues that the
paucity of actions under the Convention can be attributed not to any inherent defects within the Convention itself, but because of
a lack of the political will by governments necessary to take action.[36]
- However, as argued by Leo Kuper, the requirement of proof of genocidal intent in Article II has often been the key obstacle for actions
brought under the Convention.[37]
It is the critical reason why the Convention has been so rarely put to use. Under Article II, the prosecutor is required to prove
that the accused person who had committed potential acts of genocide had also intended to destroy the given national, racial, ethnic,
or religious group. She must have intended to destroy that group either in its entirety, or in part.[38]
That intent must have been ‘specific’, the act being aimed purely at achieving that particular outcome, the genocidal act in question.[39]
In the case of the genocidal experiences of the Holocaust,[40]
the Nazi regime operated within an established bureaucracy that allowed prosecutors to easily find documents explicitly showing the
specific genocidal intent of the perpetrators of the Holocaust.[41]
In such cases, establishing the required specific genocidal intent is not difficult. But in general, as in the two cases about to
be examined, prosecutors have found it difficult to establish the required specific intent to commit genocide.[42]
- Attempts find a specific intent to commit genocide in the case of the Former Yugoslavia have been met with difficulties. Problematically,
while explicit evidence of the intent to ‘ethnically cleanse’ certain territories have been found, this alone has not been sufficient
to construct a specific intent to commit genocide.[43]
An intent to ‘ethnically cleanse’ an area is clearly different to the specific intent to commit genocide, which Article II defines
as the ‘intent to destroy the group to which they belong, in whole or in part’. The proof of an intent to ‘ethnically cleanse’ of
a given geographical area only requires evidence that the perpetrators had intended to force the migration of the members of a given
ethnic group from that territory, so that another ethnic group will attain dominance over the area.[44]
This is clearly different to the genocidal intent of destroying that group in whole or in part. Mere intent to force them to migrate
to another geographical area, even if such acts may plausibly bring genocidal consequences, will not be sufficient to establish culpability
under the Convention.[45]
- It has already been seen how acts of ‘ethnic cleansing’, such as displacement from homes and rape of women, can have genocidal consequences
as defined under Article II. But the perpetrators of those acts of ‘ethnic cleansing’ will not be found culpable under the Convention
without the genocidal intent to destroy that given ethnic group.[46]
Actions brought under the Convention for acts of genocide in the Former Yugoslavia will inevitably fail, because evidence of specific
genocidal intent cannot be established. This would be so even where the evidence clearly suggests that acts of genocide were perpetrated.
- As in the case of the Former Yugoslavia, attempts find a specific intent to commit genocide in the case of the Commonwealth government
policies to remove mixed-blood Aboriginal children from their families, have been met with difficulties. Through these policies of
child removal, the government sought to ‘absorb’ half-blooded Aboriginal children into the white population. Such policies would
clearly be in contravention of Article II (e) which prohibits removal of children from their families.[47]
But again, as in the case of the Former Yugoslavia, the critical issue is not whether the acts of genocide had occurred, but whether
they were carried out with the requisite specific genocidal intent ‘to destroy the group to which they belong, in whole or in part’
as required under Article II. While the act itself may have genocidal consequences, an action for genocide against the Aborigines
through policies of assimilation will not succeed without establishing that these acts were carried out with a specific intent to
commit genocide.[48]
- To date, conclusive evidence has not been found to suggest that the policies of child removal were carried out with the specific intent
to commit genocide against the Aborigines, destroying them as a distinct ethnic group.[49]
Sir Paul Hasluck, one of the key formulators of the child removal policies, argued that his policies were not aimed at the destruction
of the Aborigines as a distinct ethnic group. It was suggested that the policies had the benevolent intent of raising the living
standards of the Aborigines to a level at par with the rest of the population.[50]
Hasluck’s argument seems to have found acceptance in the High Court. In Kruger v Commonwealth, it was ruled that Aboriginal Ordinance
1918 (NT), which allowed the forced removal of Aboriginal children from their families, could not be characterised as an act of genocide
since it was not carried out with the specific intent to commit genocide.[51]
- The Federal Court in Nulyarimma v Thompson, followed Kruger by ruling that evidence of genocidal intention against the Aborigines
could not be found to establish culpability of those who had committed genocidal acts against them.[52]
It is generally accepted that evidence of specific genocidal intent could not be established for the policies of child removal against
the Aborigines, and consequently, any actions brought under the Convention cannot succeed. Without evidence of specific genocidal
intent, those who had committed acts of genocide will not be found culpable under the Convention.
- It has been seen that the burden of proving that the accused held a specific intent to commit genocide posed significant constraints
on prosecutors seeking to bring actions under the Convention. Two recent developments in international law, that may produce a more
flexible specific intent requirement under Article II, deserve some attention. First, Article 30 of the Rome Statute of International
Criminal Court states that if the perpetrator held actual or constructive knowledge of the genocidal consequences of her actions
in the ‘ordinary course of events’, this may be taken into account in establishing that the accused held a specific intent to commit
genocide.[53]
Article 30 was relied upon by the International Criminal Tribunal for Rwanda in Akayesu.[54]
Second, the Tribunal in Akayesu also ruled that where explicit evidence was not available, specific intent to commit genocide could
be inferred from the circumstantial evidence of the conduct of the defendant.[55]
For example, such evidence could include the ‘massive scale of atrocities committed’ against the victims of the defendant.[56]
If the scale of the act was sufficiently large and atrocious, the tribunal could infer that the defendant held specific intent to
commit genocide.
- The significance of the two developments may be that it allows an inference of specific intent to commit genocide where the prosecutor
does not have evidence that explicitly shows that genocidal intent. It is too early to make any conclusive remarks about their effects
on actions to be brought under the Convention. However, it is to be speculated that both Article 30 and Akayesu may eventually contribute
to easing some of the difficulties in proving the specific intent to commit genocide. By allowing actual or constructive knowledge
to be taken into account, and by incorporating circumstantial evidence to establish that the specific intent to commit genocide,
it is expected to give some relief to prosecutors. It is hoped that this will encourage more actions to be brought under the Convention,
although courts yet seem reluctant to adopt the more lenient approach to finding specific genocidal intent in Article 30 and Akayesu.[57]
- Despite its unique strengths, the Convention has not been much invoked by prosecutors seeking to punish atrocities in the international
community. It has been argued that they were deterred from bringing actions in genocide because of the difficult evidentiary requirements
of proving specific genocidal intent in Article II of the Convention. While definite assessments of their impact may be difficult
to make at this stage, recent developments in international law may eventually serve to alleviate this difficulty by easing the burden
of proving genocidal intent. It is argued that such a development will be desirable. As it has been seen, the Convention is a powerful
instrument with unique strengths. It can be relied upon to effectively punish those who infringe international criminal justice.
Consequently, it deserves to be given greater use than it has been to date.
[1]
(1951) 78 UNTS 277, 280-1, adopted by UN General Assembly on December 9, 1948, entered into force in January 12, 1951
<http://www1.umn.edu/humanrts/instree/x1cppcg.htm>
May 16, 2002 (copy on file with author).
[2]
(Case No. ICTR-96-4-T) Judgment, September 2, 1998
<http://www.un.org/ictr/english/judgements/akayesu.html>
January 15, 2002 (copy on file with author).
[3]
Ian Brownlie, Principles of International Law (5th ed., 1998) 517; See especially Prosecutor v Rutaganda (Case No. ICTR 96-3-T)
Judgment and Sentence, December 6, 1999, 451; Prosecutor v Servashago (Case No. ICTR-98-39-5) Sentence, February 2, 1999, 15, where
genocide is described as ‘the crime of crimes’; See also Rocco P Cervoni, ‘Beating plowshares into swords- reconciling the sovereign
right to self determination with individual human rights through an international criminal court’ (1997) 12 St. John’s Journal of
Legal Commentary 477, 529; But see Nehal Bhuta, ‘Justice without borders? Prosecuting General Pinochet’ (1999) 23 Melbourne University
Law Review 499, 523.
[4]
Barcelona Traction, Light and Power Co. Ltd. (Belgium v Spain) (1970) ICJ 3, 32 (February 5).
[5]
Kenneth Randall, ‘Universal jurisdiction under international law’ (1988) 66 Texas Law Review 785, 829-30.
[6]
M Cherif Bassiouni, ‘International crimes: Jus cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary Problems 63, 66; Anonymous, ‘The Balkan war crimes: one brought to justice, many at large’ The Economist, February 7, 2002,
<http://www.economist.com>
May 11, 2002 (copy on file with author); But see Mark Weisband, ‘The emptiness of the concept of jus cogens, as illustrated by
the war in Bosnia-Herzegovina’ (1995) 17 Michigan Journal of International Law 1, 41-42.
[7]
See generally Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968) 754 UNTS 73, entered into force in November 11, 1970.
[8]
See generally Bassiouni, n 6 above, 66; See also Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses
and Case Studies (1990) 23-4.
[9]
See Vienna Convention on the Law of Treaties, 23 May, 1969, UN Doc. A/CONF.39/27, Art 53; See also David Wippman, ‘Treaty based
intervention: Who can say No?’ (1995) 62 University of Chicago Law Review 607, 618; Karen Parker and Lyn Beth Neylon, ‘Jus cogens: Compelling the law of human rights’ (1989) 12 Hastings International Comparative
Law Review 411, 415.
[10]
William A Schabas, ‘Problems of international codification- were the atrocities in Cambodia and Kosovo genocide?’ (2001) 35 New England Law Review 287, 302; See also Anonymous, ‘Clinton’s painful words of sorrow and chagrin’ New York Times, March 26, 1998, A10
<http://www.nytimes.com>
May 11, 2002 (copy on file with author).
[11]
(1951) 78 UNTS 277, 280-1, Art VIII, adopted by UN General Assembly on December 9, 1948, entered into force in January 12, 1951
<http://www1.umn.edu/humanrts/instree/x1cppcg.htm>
May 16, 2002 (copy on file with author).
[12]
See generally Raphael Lemkin, ‘Genocide as a crime under international law’ (1947) 41(1) American Journal of International Law 145, 197.
[13]
(1951) 78 UNTS 277, 280-1, art II, adopted by UN General Assembly on December 9, 1948, entered into force in January 12, 1951
<http://www1.umn.edu/humanrts/instree/x1cppcg.htm>
May 16, 2002 (copy on file with author); See also William A Schabas, Genocide in International Law (2000) 154.
[14]
Ibid., 157-8.
[15]
John Quigley, ‘State responsibility for ethnic cleansing’ (1999) 32 University of California Davis Law Review 341, 350-351.
[16]
See generally Chris Cunneen, ‘Genocide and the forced removal of indigenous children from their families’ (1999) 32(2) Australia
and New Zealand Journal of Criminology 124, 131; See also Leo Kuper, Genocide (1981) 22; Lemkin, n 13 above, 147; Geofferey Robertson,
Crimes Against Humanity (1999) 212-3.
[17]
See generally Eric Rosand, ‘The Kosovo crisis: Implications of the right to return’ (2000) 18 Berkley Journal of International Law
229, 230-2; See also Alekso Djilas, ‘Stop the exodus’, New York Times, July 1, 1999, 14
<http://www.nytimes.com>
May 11, 2002 (copy on file with author).
[18]
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia
and Montenegro)) [1993] ICJ Reports 325, 432 (separate reasons of Judge ad hoc Elihu Lauterpact).
[19]
Schabas, n 13 above, 165-171.
[20]
David L Nersessian, ‘The contours of genocidal intent: Troubling jurisprudence from the International Criminal Tribunals’ (2002) 37(2) Texas International Law Journal 231, 255; See also Judith Miller, ‘UN finds proof of “ethnic cleansing” in Kosovo’, New York Times, June 3, 1999, 14
<http://www.nytimes.com>
May 11, 2002 (copy on file with author) who reports ‘a depressing panorama of empty villages, burned houses, looted shops, wandering
livestock and unattended farms’ as evidence of ‘ethnic cleansing’ in Kosovo.
[21]
Eric Rosand, ‘The right to return under international law following mass dislocation: The Bosnia precedent?’ (1998) 19 Michigan Journal of International Law 1091, 1092-3, 1102-3.
[22]
See Walter Gray Sharp Snr, ‘Opposition Allied force: Reviewing the lawfulness of NATO’s use of military force to defend Kosovo’
(1993) 93 American Journal of International Law 295, 300.
[23]
Paul Spiegel and Peter Salama, ‘War and mortality in Kosovo, 1998-1999, An epidemiological testimony’ (2000) 355(9222) The Lancet
2204, 2204-2209.
[24]
Anonymous, ‘A terrible toll’ (2000) 23(1) Life 38, 38-39.
[25]
Tadeusz Mazowicki, Special Rapporteur of the Commission on Human Rights, Report on the Situation of Human Rights in the Former Yugoslavia,
UN Economic and Social Council, 49th Session, Agenda Item 27, 19; UN Doc. E/CN.4/1993/50 (1993); See especially Siobhan K Fisher,
‘Occupation of the womb: Forced impregnation as genocide’ (1996) 46 Duke Law Journal 91, 93-110, for a comprehensive analysis of the topic; See generally Robertson, n 16 above, 284-6.
[26]
See generally Roy Gutman, A Witness to Genocide (1993) 164; Winston P Nagan, ‘Strengthening humanitarian law: Sovereignty, international
criminal law and the Ad Hoc Tribunal for the Former Yugoslavia’ (1995) 6 Duke Journal of Comparative and International Law 127, 164; But see Dorothy Thomas and Regan Ralph, ‘Rape in war: Challenging the tradition of impunity’ (1994) SAIS Review 81, 81, who
argue that the critical emphasis on ‘rape as genocide’ has failed to ‘reflect both the experience of individual women and the various
functions of wartime rape’, since it ignores the gender issues that permeated the mass rapes in the Former Yugoslavia during the
civil war. See also Gideon A Moor, ‘The Republic of Bosnia-Herzegovina and Article 51: Inherent rights and umnet responsibilities’
(1995) 18 Fordham International Law Journal 870, 915-6 who notes that there are no direct prohibitions against rape to force impregnation are available in international law; See
generally The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1999) 75 UN Treaty Series 287, 288-290,
Art 3(1)(c).
[27]
See generally Mike Farrell, Laurel Fletcher, Barry Fisher, Alison D Rentein, ‘Panel 1: War crimes and other human rights abuses
in the Former Yugoslavia?’ (1995) 16 Whittier Law Review 359, 365-369.
[28]
Ibid.
[29]
See Moor, n 26 above, 916; See also Prosecutor v Akayesu (Case No. ICTR-96-4-T) Judgment, September 2, 1998
<http://www.un.org/ictr/english/judgements/akayesu.html>
January 15, 2002 (copy on file with author) Para [731], for a discussion of the experiences of women victims of mass rape in
Rwanda, often disturbingly similar to the experiences of women in the Former Yugoslavia.
[30]
M Cherif Bassiouni and Peter Manikas, International Criminal Tribunal (1995) 587; See also Catherine O’Neill, Chairwoman of the
Women’s Commission on Refugee Women and Children, Hearing of the Commission on Security and Cooperation in Europe Regarding the Refugee
Crisis and War Crimes in the Former Yugoslavia, 103rd Cong, January 25, 1993.
[31]
(Case No. IT-95-5-R61, IT 95-18-R61) Consideration of the Indictment within the Framework of Rule 61 of the Rules of Procedure and
Evidence, July 11, 1996, Para [94].
[32]
See Fisher, n 25 above, 122-123; See also Bassiouni and Manikas, n 30 above, 587.
[33]
Farrell, Fletcher, Fisher, Rentein, n 27 above, 381-385.
[34]
Karina Michael Waller, ‘Intrastate ethnic conflicts and international law: How the rise of intrastate ethnic conflicts has rendered
international human rights laws ineffective, especially regarding sex-based crimes’ (2001) 9 American University of Gender Social
Policy and Law 621, 639.
[35]
Andrew D Mitchell, ‘Genocide, human rights implementation and the relationship between international and domestic law: Nulyarimma
v Thompson’ [2000] MelbULawRw 2; (2000) 24 Melbourne University Law Review 15, 20.
[36]
David Kader, ‘Progress and limitations in Basic Genocide Law’, Genocide- A Critical Bibliographical Review, Vol. 2, ed. Israel W
Charny (1991) 142.
[37]
Leo Kuper, International Action against Genocide, Report No. 53, London Minority Rights Group (1984) 5.
[38]
Schabas, n 13 above, 228-256; See also Yoram Dinstein, ‘International criminal law’ (1975) 5 Israel Year Book on Human Rights 55, cited in Henry J Steiner and Phillip Alston, International Human Rights in Context: Law, Politics, Morals (1996) 1021-1083.
[39]
Quigley, n 15 above, 350-351; See also Mitchell, n 35 above, 18; Nersessian, n 20 above, 263-265.
[40]
The atrocities of the Holocaust, in which millions of civilians of Jewish and other ethnic origins were murdered, became the key
impetus for the formulation of the Convention. See generally Raphael Lemkin, Axis Rule in Occupied Europe (1944) 79; Martin Flynn,
‘Genocide, it’s a crime everywhere but not in Australia’ (2000) 29(1) University of Western Australia Law Journal 59, 61-62, for
how the Convention was designed to codify the prohibition against genocide in customary international law; See also Dieter Kostrop,
‘From Nuremberg to Rome and beyond: the fight against genocide, war crimes, and crimes against humanity’ (1999) 23 Fordham International Law Journal 404, 405; Henry Reynolds, An Indelible Stain? The Question of Genocide in Australia’s History (2001) 13-15.
[41]
M Cherif Bassiouni, ‘Commentary on the International Law Commission’s 1991 Draft Code of Crimes against the Peace and Security of
Mankind’ (1993) 11 Nouvelles étude pénales 233, cited in Schabas, n 13 above, 255.
[42]
Ibid.
[43]
Damir Mirkovic, ‘The Holocaust: Remembering for the future: Ethnic conflict and genocide: Reflections on ethnic cleansing in the
Former Yugoslavia’ (1996) 546 Annals 191, 198.
[44]
John Malik, ‘The Dayton Agreement and elections in Bosnia: Entrenching ethnic cleansing through democracy’ (2000) 30 Stanford Journal of International Law 303, 307-308.
[45]
See generally Schabas, n 13 above, 295.
[46]
But see Attorney General of Israel v Eichmann (1968) 36 ILR 5, Para [80], in which the court notes the possibility that ethnic cleansing intent can develop into a specific intent to commit genocide.
In the case of Nazi Germany, the original ‘ethnic cleansing’ intent only to migrate Jews from Germany, later developed the ‘Final
Solution’ ideas that amounted to specific intent to commit genocide. But without such developments, an ‘ethnic cleansing’ intent
will not sufficient to meet the requirements of Article II.
[47]
See generally Reynolds, n 40 above, 139-171; see also Cunneen, n 16 above, 132, who argues that the effect of these policies of
child removal are now being replicated by the ‘contemporary juvenile justice and welfare practices’ targeted at Aboriginal children.
[48]
See generally Mathew Lippman, ‘The 19
[48]
Convention on the Prevention and Punishment of the Crime of Genocide: Forty-five years later’ (1994) 9 Temple International and Comparative Law Journal 1, 23-24; Cf Ron Brenton, ‘Genocide, the “stolen generation”, and the “unconceived generations”’ (1998) 42(5) Quadrant 19, 20.
[49]
Reynolds, n 40 above, 165-171; But see Tony Barta, ‘Relations of genocide: land and lives in the colonisation of Australia’, Genocide
and the Modern Age: Etiology and Case Studies of Mass Death, ed. Isidor Wallimann and Michael Dobjowski (1987) 239; See also Lyndall
Ryan, The Aboriginal Tasmanians (1981) 73-114, 160-174, 182-205.
[50]
Sir Paul Hasluck, Shades of Darkness: Aboriginal Affairs 1925-1965 (1988) 23, 45-70, 88-89; See also the National Enquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing Them Home (1997) 273; Kenneth Minogue,
‘Aborigines and Australian Apologetics’ (1998) 42(9) Quadrant 11, 16.
[51]
[1997] HCA 27; (1997) 190 CLR 1, 5 (Brennan CJ); But see Mathew Storey, ‘Kruger v Commonwealth: Does genocide require malice?’ [1998] UNSWLawJl 17; (1998) 21(1) University of New South Wales Law Journal 224, 229 who criticizes this decision.
[52]
[1999] FCA 1192; (1999) 165 ALR 621, Para [14] (Wilcox J); But see Flynn, n 40 above, 77, for a strong critique of this decision.
[53]
Rome Statute of International Criminal Court, UN Doc.A/CONF.183/9, Art 30.
[54]
(Case No. ICTR-96-4-T) Judgment, September 2, 1998
<http://www.un.org/ictr/english/judgements/akayesu.html>
January 15, 2002 (copy on file with author), Para [477].
[55]
Ibid., Para [519].
[56]
See Schabas, n 13 above, 222-224.
[57]
See Flynn, n 40 above, 77.
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