Genocide.docx

The Crime of Genocide: Bystander's Approach

The Crime of Genocide: Bystander's Approach and Practices

Submitted to : Dr. Jyoti Sood Submitted by: Ankit Yadav 07/L.L.M/2 year/2014 1

The Crime of Genocide: Bystander's Approach

CONTENTS 1) Introduction...................................................................................................... 3 2) Genocide as a crime under International Law...........................................................5 3) Genocide and Passivity of Bystanders......................................................................7 4)The Bystander Concept.........................................................................................8

2

The Crime of Genocide: Bystander's Approach Introduction

International Criminal Law recognises a number of actions as criminal and as being ‘crimes against humanity’ as such. These include - extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution,or any other form of sexual violence of comparable gravity among others 1. Although murder has also been included in this definition2, the mass murder of individuals based on a particular common characteristic that they shared, whether ethnic, religious, racial or national, has been defined separately as a specific crime. This crime has been defined as the crime of ‘Genocide’ by Raphael Lemkin3 in 1944. Before delving into the actual specific intent requirement, it would be worthwhile to examine the jurisprudence surrounding the crime of Genocide itself to get a comprehensive understanding of the crime in itself. Modern history recalls many instances where a mass murder of people belonging to the same race has taken place with a view to eliminate the race. These include – destruction of the Armenians by the Ottoman Empire during WWI, the holocaust of the Jews by the Nazis and the killing of millions of Cambodians by the Khmer Rouge regime in Cambodia in the mid – 1970’s4. To provide an estimate of the gravity of the crime it must be noted here that by the modern definition of Genocide that exists today, these can be broadly classified as instances of genocide but the position of criminal law existing then, did not allow for such (the position regarding the activities that took place in Cambodia is however still debated)5. The Nuremberg Charter did not explicitly make a reference to the term ‘genocide’ but it was referred to in principle6 in the charter. The actual evolution of the autonomous nature of Genocide as criminal conduct was first recognised by the United Nations General Assembly when it passed the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Subsequent developments took place in Rwanda and Yugoslavia that caught the world’s attention, bringing into the forefront the crime of 1

Art. 7 of the Rome Statute of the International Criminal Court Art. 7 (1) (a) of The Rome Statute 3 R. Lemkin, ‘Genocide as a Crime under International Law’, 41 AJIL 145 4 H. Fein (ed.), Genocide Watch (Yale University Press, 1992) as cited in KriangsakKittichaisaree, International Criminal Law (Oxford University Press, Oxford, 2001) at p.67 [Hereinafter cited as “International Criminal Law”] 5 Beth van Schaack, “The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot”, The Yale Law Journal, Vol. 106, No. 7 (May, 1997), pp. 2259-2291. 6 International Criminal Law at p. 67 2

3

The Crime of Genocide: Bystander's Approach Genocide again. The ICTR and the ICTY constituted specifically to deal with offences committed during that period borrowed significant principles from the Genocide Convention. The ICTR delivered the first judgment on Genocide only in the late 1990’s7. In the interim, however there was not much progress in the jurisprudence relating to Genocide except academic writings based on the Genocide Convention as such. In the year 1998, the Rome Statute of the International Criminal Court was agreed upon by certain signatory countries that again brought Genocide into more clarity than existed before. It was able to define successfully by consent of signatory countries a mutually acceptable definition of the crime8 and to lay down elements that are required to be proven in order to prove Genocide 9. However, there has been merely one situation in which the ICC has taken cognizance of Genocide10. The wealth of jurisprudence however originates from the ICTY and the ICTR decisions. Although the decisions are not significant in number, they do provide a settled position of law, which will be presented here in this project. Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify 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 the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.

7

The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, (Sept. 2, 1998) Art. 6 of The Rome Statute 9 Art. 6(a) to 6(e) of the ICC Elements of Crime 10 The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09 8

4

The Crime of Genocide: Bystander's Approach Genocide as a crime under International law The term genocide has a highly specific origin, rooted in two related sources: the invention of the word in 1943 by Polish jurist Raphael Lemkin; and its definition, several years later, as an international crime through the Convention for the Prevention and Punishment of the Crime of Genocide. The concept of genocide was a direct response to the Holocaust and the extraordinary destruction and brutality of World War II. Lemkin created the term genocide, out of the Greek word genos, referring to race or tribe, and the Latin term cide, meaning murder.11 He defined genocide as a coordinated strategy to destroy a group of people, a process that could be accomplished through total annihilation as well as strategies that eliminate key elements of the group's basic existence, including language, culture, and economic infrastructure. Lemkin believed the Nazi systematic eradication of various peoples represented an irreparable harm to global society and a special challenge to existing conceptions of criminal law.In the wake of The Holocaust, Lemkin successfully campaigned for the universal acceptance of international laws defining and forbidding genocide. This was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide.The CPPCG was adopted by the United Nations General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally-recognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC). The Convention (in Article 2) defines genocide: ...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; (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. 11

Charny, Israel W. (1999). Encyclopedia of Genocide. Santa Barbara, Calif.: ABC-Clio.

5

The Crime of Genocide: Bystander's Approach Convention on the Prevention and Punishment of the Crime of Genocide, Article II The first draft of the Convention included political killings, but the USSR along with some other nations would not accept that actions against groups identified as holding similar political opinions or social status would constitute genocide, so these stipulations were subsequently removed in a political and diplomatic compromise. The Genocide Convention was the first of a series of international treaties that, taken together, form the modern system of fundamental rights and freedoms. While the brutal acts that define genocide were not new, the Convention’s formal evocation of the crime as a foundational concept within the human rights system represented an act of great historic significance. The Convention remains the premier document for defining genocide and, by 2003, 135 nations had accepted its legal obligations.12 The Convention’s definition has been reinforced through its repetition in relevant domestic legislation and in the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). The crime of genocide is composed of three essential elements: acts, intent, and victim group. There are five enumerated acts that are distinct in nature, yet unified as strategies. Three of these are aimed at destroying an existing group: killing, causing serious harm, and/or creating destructive conditions. The other two specified acts are aimed at ruining the possibility of the group's continued existence: preventing reproduction and the forcible removal of children. The issue of intent is complex, but is generally understood to limit claims of genocide to those cases where political violence is purposefully directed toward the destruction of a group. This political objective may be presented as official policy, or it may be expressed through the coordinated and systematic nature of state-sponsored terror. The issue of intent is one of the more contentious elements of the crime and is often discussed as a key limitation to successful prosecutions. The group victim requirement defines genocide as a unique crime that is directed not against individuals per se, but instead targets victims because of their membership in a national, ethnic, racial, or religious group.13 The definition is often criticized for its exclusion of political and social groups, for these, too, are often the targets of severe political violence. Each element of the legal definition of genocide raises an array of troubling questions, many of which run counter 12

ibid Andreopoulos, George J. (ed. ) Genocide: Conceptual and Historical Dimensions. Philadelphia: University of Pennsylvania Press, 1994 13

6

The Crime of Genocide: Bystander's Approach to general moral understandings of the term. For example, one might have a case of genocide involving few casualties (as with the forced transfer of children) or a situation of extraordinary brutality that does not meet the definition (as with the mass murder of political opponents or others who are not targeted for their membership in one of the four protected groups). To address these issues, scholars have interpreted the crime to cover most forms of states sponsored mass killing. Helen Fein, for instance14, has suggested a "sociological definition,”and Leo Kuper suggests a broader understanding of the crime be developed, in order to address problems arising from the technical nature of the Convention's language15. Others have suggested the need to create new terms. For instance, R. J. Rummel has coined the word democide16 to refer to all forms of mass state murder, and others have offered autogenocide to deal with mass murder where both the perpetrators and victims are members of the same group. Genocide and Passivity of By standers The behavior of bystanders has a central role in preventing genocide. It is the passivity of bystanders, both internal bystanders, the members of the population of a country who are not actively involved in the perpetration of violence, as well as external bystanders, outside groups and nations, that allows the continued evolution toward genocide. Ervin Staub17 talks about both internal bystanders (members of a perpetrator group who are themselves not perpetrators) and external bystanders (outside groups and nations) have great potential to influence events. Unfortunately, internal bystanders normally remain passive and, over time, many of them come to support the perpetrators. External bystanders usually also remain passive, proceed with business as usual, or actively support the perpetrators. Early and strong reactions by bystander nations can inhibit this evolution. Unfortunately, nations usually remain passive, or even support perpetrators. When the killings of the Armenians began, in 1915, Germany, Turkey's ally in the war, remained passive. Articles in German newspapers justified Turkish actions.

14

Fein, Helen (1993). Genocide: A Sociological Perspective. London: Sage Publications. Kuper, Leo (1981). Genocide: Its Political Uses in the Twentieth Century. New Haven, Conn.: Yale University Press. 16 Rummel, R. J. (1994). Death by Government: Genocide and Mass Murder since 1900. New Brunswick, N.J.: Transaction Publishers 17 Staub, Ervin (1989). The Roots of Evil: The Psychological and Cultural Origins of Genocide and Other Forms of Group Violence.Cambridge: Cambridge University Press. 15

7

The Crime of Genocide: Bystander's Approach This act of observing, which may appear passive and insignificant in itself, is in fact the gateway to a profound testing of the human person. If the bystander chooses to intervene and assist the victim, then he or she can become a rescuer, an examplar of neighbor love. If the by-stander intentionally renders even slight assistance to the perpetrator, then he or she becomes an accomplice in crime, and possibly equally liable for the evil done by others. The bystander who misinterprets the situation and mistakenly assists the aggressor, or who bungles the rescue and leaves matters worse than before, may be termed a meddler, and resented despite the best of intentions. Much has been written about the failure of bystanders in the Holocaust. The tendency of human beings to turn away from grave human suffering and do nothing has been lamented.18 The abandonment of the Jews by allied governments during World War II has been criticized.' The perpetrators, who are frequently guided by an ideology that designates the victim group as an enemy, are confirmed in the rightness of their cause by the bystanders' passivity.Inaction also changes the bystanders themselves. It is psychologically nearly impossible to see others' intense suffering, do nothing, and continue to care about the victims' welfare. Passive bystanders distance themselves from victims, in part by justifying the actions of the perpetrators.

Although there have been studies of the

responsibility of internal bystanders (individual and collective), 22 there has been no systematic study of the responsibility of collective external bystanders and their influence or impact on the outcome or development of genocide. Hence, the development of a framework for theorising the responsibility of collective external bystanders in genocidal emergencies has been neglected in the literature on genocide across all disciplines. In International Relations there are studies of the responsibility of states towards their citizens and those of other states, as well as studies of the relationships between states in such cases, and a whole literature deals with the universal application of human rights.However, the approaches that merge multidisciplinary theories to assess the responsibility of state governments in cases of genocide are non-existent. The Bystander Concept The moral standing of the bystander can be extremely diverse with regard to involvement in and knowledge of the events. Hence, one can speak of two extreme poles between which one can locate the bystander and to which the bystander may turn: on the one hand, a bystander might join the perpetrators; on the other hand, the bystander can turn into a rescuer and 18

Gushee.P Daivd, The Righteous of the Holocaust(1994)

8

The Crime of Genocide: Bystander's Approach consequently to a victim. In between the two poles lies a broad continuum reflecting varying degrees of `bystanderness' according to three criteria: the knowledge of the events, the involvement of the bystander and the capability to intervene to help the victims. Drawing on the definition of bystander, knowledge is important because it describes the bystander's awareness of the genocide.19 The involvement criterion determines how close bystanders came to actively joining the extermination process and in what relation they stood to the perpetrator and the victim. Lastly, bystanders have to able to make a choice, either to remain passive or to become a perpetrator/rescuer. The capability criterion determines what possibilities the bystander had to come to the rescue of the victims of genocide. Since bystanders are situated between the perpetrator and the rescuer/victim, these determine the degree of bystanderness, i. e. the degree of approbation or the moral connotation attached to the bystander. Thus, the more knowledge a bystander has, the more the bystander is involved in the genocidal regime and the more the bystander is able to intervene, the more the bystander moves in a moral sense towards the perpetrator on the continuum.20 The concept demonstrates that the line between the perpetrator and the bystander on the one side, and the rescuer and the bystander on the other, can be very thin.The bystander concept adapted here includes those bystanders who passively support genocide and those who do not. However, it draws a line between those who actively join the genocide (perpetrators) and those who actively oppose genocide (victims/rescuers).Consider the role of a teacher in Nazi Germany, for example, who had to witness first the expulsion of his Jewish students from school and then their deportation. His or her actions towards these students during the events draw this bystander either to one or the other end of the continuum. Supposing that the teacher remained completely passive in the light of the expulsion and the deportation and did not intervene in anyway, this teacher's position would be different to the teacher who supplied a list of the Jewish students of the class to the Nazis and/or who was a NSDAP member.Collective internal bystanders can be all kinds of groups, organised or not, although most debate surrounds those with a clear structure and `identity', such as non governmental organisations, churches or corporations.Their collective actions/inaction towards victims of genocide can therefore be placed on the same continuum as evaluated the individual bystander. The illuminating case of the role of the Christian churches during the Holocaust, 19

Human Rights Watch. Genocide in Rwanda April-May 1994. New York, May 1994 Staub, Ervin (1989). The Roots of Evil: The Psychological and Cultural Origins of Genocide and Other Forms of Group Violence.Cambridge: Cambridge University Press. 20

9

The Crime of Genocide: Bystander's Approach explored by Raul Hilberg, serve as a good example for collective internal and external bystanders.Staub defines external bystanders as being `other nations and outside groups who remain passive' in the face of a genocidal crisis.21 Although individuals can, of course, also be included in this category, i. e. those living outside the boundaries of a genocidal regime, the focus here lies mainly on groups. An external bystander

can be defined as every

government, group of states (regional or international organisations), international nongovernmental organisations (NGOs) and other organised groups of individuals that has knowledge of the genocide (the awareness factor), but does not take part in either the extermination or in the rescue of the victimised group. An external bystander is not 'within the power structures of a genocidal regime and thus is not directly affected by those policies. However, other aspects such as war, which is often the context of genocide, or a refugee flow, might affect external bystanders.

Like internal bystanders, external bystanders must

bear witness to the abuse of the targeted victim group but they do not actively support the genocidal practices of the regime. Thus, the external bystander does not take an active part in the annihilation of the victims. As for the internal bystander, the external bystander implies varying degrees of bystanderness that offer different levels of the term. Equally, the degree of bystanderness depends on their knowledge of the situation, on the prior involvement with the regime committing genocide or their relations with it, and their ability to stop or mitigate the atrocities.

21

Staub, `Transforming the Bystanders', p. 169

10