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The "victimized group" concept in the Genocide Convention and the development of international humanitarian law through the practice of ad hoc tribunals 1
... Soykırım eylemlerinde tanımlanan dört gruptan birine veya birkaçına yönelik soykırım kastı olduğunda o gruba mensup oldukları için soykırım eylemlerine maruz kalmaktadır. 17 Hedef, seçilen bireyleri değil, grubu yok etmektir. Kasıt unsurunu ispatlamak güçtür. ...
... " 41 For, the disabled should be clearly distinguished from other social groups for the purpose of genocide, and excluded from other social groups 42 that are non-stable and non-permanent Aksar, among others, firmly criticizes this. 43 He maintains that the political, economic and social groups have become more important than national, ethnic, racial or religious groups which is one of the reasons why non-prosecution and punishment of responsible persons involved in mass killings of human being should not be dependent on the deficiency of the definition of genocide in the Convention. 44 Aksar argues that the case law of "the ICTR proved that the protected groups are not limited to national, ethnic, racial or religious groups, and that any groups, as long as they are stable and permanent, can fall under the protection of the Genocide Convention. ...
The intent of this article is to explore whether the group of the disabled people could be considered as a protected group under the international instruments referring to the crime of genocide. To that end, it has been discussed whether the listed groups (national, ethnical, racial and religious) are the only groups that are protected against the “ultimate crime”. The discussion refers to the theoretical understanding and judicial interpretations of the protected groups and their scope. Considering that the theory and case law provide grounds for both, exclusive and extensive, understanding of the protected groups and their scope, it has been addressed what are the common features of the groups that are indisputably protected. The findings that were reached through the discussion are that the group of the disabled has all the characteristics as the other protected groups, which qualifies them for the victim status. Bearing this in mind as well as the historical context of the concerning crime and its purpose, the teleological interpretation appears to be the most appropriate when defining which groups are protected for the purpose of genocide. Perhaps there is no possibility for the repetition of the Holocaust due to the present day historical circumstances, at least not in its latter scope. But, there is a latent tendency toward the creation of new threats against humanity arising out of new technologies. There lies the main value of this article. It contributes to the development of the ability to detect potential violations beyond those committed against the disabled people during the WWII.
This chapter critically examines the prevailing understanding of grouphood within the context of genocide law, highlighting the challenges and shortcomings of current interpretations. A thorough critique of the increasingly popular perpetrator-based subjectivity in constructing the four groups, particularly among legal scholars, is offered. By revisiting the concept of grouphood from historical, teleological, and victimological perspectives, the chapter aims to illuminate its original conceptualization by the drafters, its interpretation by international lawyers at the time, and its evolution in State practice prior to the 1990s. Through a contextual analysis of the first significant international criminal trial on genocide, the case against Jean-Paul Akayesu at the ICTR, core criticisms of the so-called ‘objective’ interpretation of the four groups are reassessed, the ‘permanent and stable’ formula is reconstructed, and the notion of involuntariness in defining protected grouphood is explored.
Bir normun küresel düzeyde kabul gören ve içselleşen bir boyuta erişmesi hayli zorlu bir süreci ifade etmektedir. Özellikle insan haklarından doğan ve küresel boyutta önem taşıyan normların oluşum süreçleri dikkate alındığında durum, normun fikir aşamasından başlayarak içselleştirilmesini de içine alan ve çeşitli mekanizmaları kapsayan bir süreci ifade etmektedir. Martha Finnemore ve Kathryn Sikkink söz konusu süreci normun ortaya çıkması, yaygınlaşması ve içselleştirilmesi olarak üç aşamada açıklar. Her bir aşamada da önemli birimler olarak aktörleri, motivasyonları ve baskın mekanizmaları sıralar. Hukuk profesörü Raphael Lemkin’in çabaları sonucu 1948’de Birleşmiş Milletler Genel Kurulu’nda bir sözleşme metniyle güvence altına alınan soykırım yasağı da, bu minvalde değerlendirilebilecek uluslararası bir normdur. Zira, soykırım kavramının fikir olarak doğma, suç olarak tanımlanma ve toplumsal düzeni sağlamaya yönelik yasaklanması yönünde hukuk ilkesine dönüşme süreci de uluslararası norm oluşum süreciyle belirli bir analoji taşımaktadır. Dolayısıyla bu çalışma, Finnemore ve Sikkink’in uluslararası ilişkileri şekillendiren norm oluşum sürecine dair oluşturdukları ve yaşam döngüsü adını verdikleri aşamaların (fikir olarak ortaya çıkma, yaygınlaşma ve içselleştirme) soykırım yasağı normuna da uyarlanabileceği fikri üzerinden bir çerçeve çizmeyi amaçlamaktadır.
International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions.
Kofi Annan traveled to Rwanda in May of 1998 attempting to repair the image of the United Nations (U.N.) and to heal the fractured political relationship between the two entities. However, the U.N. secretary general largely failed to fulfill his mission. This article analyzes the reasons why Annan's mea culpa failed. It argues that in Annan's address before the Rwandan parliament, his rhetorical choices constrained his ability to repair the U.N.'s image and U.N.–Rwandan relations. Specifically, this article demonstrates that the U.N. leader's nondiscussion of his personal culpability for U.N. action, his democratization of blame for the genocide, and the appearance of personal arrogance created by his language choices hindered his ability to fulfill his mission. The article concludes with implications for image repair theory, lessons from Annan's failure for rhetors who apologize for historical wrongdoing, and directions for further research into the phenomena of public apology.
Prosecutor v. Akayesu. Case ICTR-96-4-T.
International Criminal Tribunal for Rwanda, September 2, 1998.
This pioneering opinion marks the first time an international criminal tribunal has tried and convicted an individual for genocide and international crimes of sexual violence. The case arose out of the massacres of perhaps a million Tutsi in Rwanda in 1994. At least two thousand died in Taba, a rural commune where defendant Jean-Paul Akayesu was mayor. A trial chamber of the International Criminal Tribunal for Rwanda concluded that, although Akayesu may at first have tried to prevent killings, he eventually donned a military jacket and participated in or ordered atrocities. The Tribunal found him guilty of one count each of genocide and incitement to commit genocide and seven counts of crimes against humanity. It acquitted Akayesu of five counts brought under common Article 3 of the 1949 Geneva Conventions and Protocol Additional II to those Conventions on the ground that he was not within the class of perpetrators contemplated by them.
The Crime of State, Genocide VoI II, 125Leyden: A. W. Sijthoff. Drots defines genocide as "the deliberate destruction of physical life of individual human beings by reason of their membership of any human collectivity as such
- P N Drots
The International Criminal Court Making the Right Choices-Part I, AI Index: IOR 40/01/97, 24London: Amnesty International. commentary on the crime of genocide in the ILC Draft Code
- Amnesty International
Taking Lives: Genocide and State Power, 17New Brunswick, NJ: Transaction Books. Horowitz defines genocide as "a structural and systematic destruction of innocent people by a state bureaucratic apparatus
- I L Horowitz
International Criminal Law: A Draft International Criminal Code, 73Maryland, USA: Sijthoff and Noordoff
- C Bassiouni
27Oxford: Clarendon Press. for the drafting history of Art. 1 of the Genocide Convention in which the crime of genocide is regarded as
- S R Ratner
- J S Abrams
VoI II, 125Leyden: A. W. Sijthoff. Drots defines genocide as "the deliberate destruction of physical life of individual human beings by reason of their membership of any human collectivity as such
- P N Drots
NJ: Transaction Books. Horowitz defines genocide as "a structural and systematic destruction of innocent people by a state bureaucratic apparatus
- I L Horowitz
USA: Sijthoff and Noordoff
- C Bassiouni
95 ibid, For example, even birth control clinics were labelled as the place in where the crime of genocide was committed on the ground that it creates an act constituting genocide under Art. 2(d) of the Convention, which indicates one category of acts of genocide as the "imposi
- H Fein