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Abstract
The 1948 Genocide Convention is a vital legal tool in the international campaign against impunity. Its provisions, including its enigmatic definition of the crime and its pledge both to punish and to prevent the 'crime of crimes', have now been considered in important judgments by the International Court of Justice, the international criminal tribunals and domestic courts. Since the second edition appeared in 2009, there have been important new judgments as well as attempts to apply the concept of genocide to a range of conflicts. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial cooperation, such as extradition. The duty to prevent genocide and its relationship with the doctrine of the 'responsibility to protect' are also explored.
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On 17 March 2023, Pre-Trial Chamber ii of the International Criminal Court ( icc ) issued secret warrants of arrest for President Putin and the Commissioner for Children’s Rights in the Office of the President of the Russian Federation, Ms. Lvova-Belova, for the commission of the war crime of forcible transfer of children. This article argues that there are “reasonable grounds to believe”, as the icc Statute requires for the arrest warrant stage, that both Putin and Lvova-Belova bear individual criminal responsibility for the forcible transfer of Ukrainian children as a crime of genocide; however, two types of considerations – general and particular – prevented the issuing of arrest warrants for genocide crimes.
In Section 2, after a short historical-legal review of the formulation of Article 2(e) of the Genocide Convention ( gc ), the article notes that despite the significant number of cases of children being transferred and removed from their families that have taken place since the gc was adopted, the provision has been dormant and considered anachronistic and was rarely applied by an international or a local court. Section 3 proceeds with a legal analysis of the elements of the crime of the forced transfer of children and the genocidal special intent. Section 4 parses the case study of the forcible transfer of children from Ukraine as a crime of genocide. Section 5 analyses the litigation of the crime of genocide in the icc through the only case of genocide the court has addressed so far: the arrest warrant for Sudan’s former president, Omar al-Bashir. Section 6 concludes with a forecast that despite the sufficient legal basis for issuing arrest warrants for Putin and Lvova-Belova, practical and political considerations would impede the icc from doing so.
Russian military aggression against Ukraine is the most flagrant violation of Article 2(4) of the United Nations Charter in recent years. Crimes committed by the Russian armed forces on the territory of Ukraine constitute the most serious crimes of international concern, as confirmed by the ICC’s arrest warrant for Vladimir Putin and Maria Lvova-Belova in regard of particular acts identified by the ICC as war crimes. The crime of genocide requires a special means rea element to be met – an intent to destroy a protected group in whole or in part. The aim of this article is to analyze definition of genocide along with its elements established in the document “Elements of Crime” in the context of two forms of genocide that were committed by Russian armed forces – killing Ukrainians and forcible transfer of children of the group.
The Holodomor and Katyn Massacre are founding crimes of the USSR and the Eastern Bloc's state. Their common feature was an attempt to annihilate nations and prevent them from achieving independence. Quite often, both crimes are called genocide, but their legal qualification from the perspective of the then international law is extremely difficult. However , there are solid grounds for qualifying both of these crimes, and particularly the Katyn Massacre, as genocide. As a result of the development of the law of armed conflicts in international law in the 1930s and 1940s, there was a ban on committing acts that the 1948 Convention defined as genocide.
The new wave of Russia’s aggression against Ukraine that began on 24 February 2022, and the intensification of the armed conflict accompanied by grave breaches of international humanitarian law, has received significant scholarly attention. Many academic interventions have examined the developments in Ukraine through the frameworks of jus ad bellum and jus in bello. Some, however, have applied a genocide lens to make sense of reported numerous and widespread violations of international humanitarian and human rights law. This article contributes to the latter stream of scholarship by contextualizing the arguments for the existence of genocidal intent behind the seemingly unrelated crimes committed by the armed forces of the Russian Federation all over Ukraine. The authors pay particular attention to the language and pseudo-historical references used by Russia’s leaders as a justification for the invasion of Ukraine and argue that these statements and expressions indicate the existence of genocidal intent. This article also reflects on the issue of the systematic destruction of cultural heritage of Ukraine as further evidence of the intent to destroy the Ukrainian nation understood as a protected national group under the Genocide Convention, at least in part. Finally, the authors analyse the genocidal acts that have apparently been committed, including killings; the causing of serious bodily or mental harm; the forcible transfer of Ukrainian children to Russia, and the deliberate infliction of conditions of life aimed at the physical destruction of the Ukrainian nation. It is stressed that there are reasonable grounds to believe that the destruction of the Ukrainian nation by Russia has been pursued through commission of these prohibited acts. Their nature and large-scale character serve as further evidence of genocidal intent to destroy the Ukrainian nation.
Since the onset of the latest wave of aggression instigated by the Russian Federation against Ukraine, numerous credible reports have emerged of Ukrainian children from temporarily occupied territories being forcibly transferred to the territory of Russia. While the figures provided by different sources are inconsistent, it is evident that forcible transferring of Ukrainian children is a systematic and extensive practice. International lawyers remain divided on extent to which Russia’s actions in Ukraine constitute genocide under any of the paragraphs of Article II of the Genocide Convention. Predictably, the fundamental challenge lies with proving dolus specialis, a special intent to destroy the group physically required by the genocide definition. I contend that forcible transferring of Ukrainian children to the Russian Federation satisfies the prima facie elements for bringing a claim of genocide under Article II (e) of the Genocide Convention, including the requirement of special intent. In conclusion, I evaluate the prospects of existing legal actions concerning forcible transfers of Ukrainian children under international law and assess potential opportunities for strategic litigation.
Genocide is generally understood as the “crime of crimes”, the most serious international offence that "shocks the conscience of mankind". Even though its narrow legal construction only allows for the categorizing very specific atrocities as genocide, the perceived gravity creates a special stigma that paradoxically might be seen to reduce the seriousness of other crimes in comparison.
This has led to various attempts to bridge the schism between genocide and other international crimes in legal and social science scholarship and in domestic law. Some post-communist countries introduced equal legal sanctions for the denial of the Holocaust - the par excellence genocide - and communist crimes, which on many occasions do not even reach the level of international crimes. My chapter focuses on this phenomenon and aims to demonstrate that the desire to symbolically express the seriousness of communist crimes by putting them on an equal footing with the Holocaust threatens to simultaneously inflate the gravity of communist crimes and decrease the perceived seriousness of the Holocaust.
This Comment expands upon legal and academic understandings of sexual violence as an act of genocide, arguing that men, transgender women, and intersex/non-binary/third-gender individuals can also experience genocidal forms of sexual violence. I demonstrate how international law about genocidal sexual violence has almost entirely focused on the bodies and reproductive capacities of cisgender women, obscuring how and why other individuals can be targeted during episodes of genocide. I then discuss how genocidal sexual violence against different genders can be understood, challenging international criminal law practitioners to adopt a more inclusive outlook on gender and victimhood in future genocide investigations and prosecutions.
This book is the first of a four-volume compendium, which is a detailed and authoritative account of the law of international crimes. The volume provides a unique blend of academic rigour and an insight into the practice of international criminal law. The compendium is un-rivalled in its breadth and depth, covering almost a century of legal practice, dozens of jurisdictions (national and international), thousands of decisions and judgments and hundreds of cases. It discusses in detail the law of all four core international crimes (genocide, crimes against humanity, war crimes, aggression), their definitions, elements, normative status, and relationship to one another. It provides an exceptional and un-surpassed review of the relevant jurisprudence and material, making it a must-have for any practitioner or scholar in the field.
Today’s elaborate system of international criminal justice originates in proposals at the end of the First World War to try Kaiser Wilhelm II before an international criminal tribunal. In the weeks following 11 November 1918, the British, French, and Italian Governments agreed on a trial. Lloyd George campaigned for re-election on the slogan ‘Hang the Kaiser’. The Kaiser had fled to the Netherlands, possibly after receiving signals from the Dutch Queen that he would be welcome. Renegade US soldiers led by a former Senator failed in a bizarre attempt to take him prisoner and bring him to Paris. During the Peace Conference, the Commission on Responsibilities brought international lawyers together for the first time to debate international criminal justice. They recommended trial of the Kaiser by an international tribunal for war crimes, but not for starting the war or violating Belgian neutrality. The Americans were opposed to any prosecution. However, President Wilson changed his mind and agreed to trial for a ‘supreme offence against international morality’. This became a clause in the Treaty of Versailles, one of the few that the Germans tried to resist. Although the Allies threatened a range of measures if the former Emperor was not surrendered, the Dutch refused and the demands were dropped in March 1920. The Kaiser lived out his life in a castle near Utrecht, dying of natural causes in June 1941. Hitler sent a wreath to the funeral.
This article exposes the political underpinnings of the term “genocide of the Soviet people,” introduced and actively promoted in Russia since 2019. By reclassifying mass crimes committed by the Nazis and their accomplices against the civilian population—specifically Slavic—as genocide, Russian courts effectively engage in adjudication of the history of the Second World War. In the process, genocide trials, ongoing in twenty-five Russian provinces and five occupied Ukrainian territories, present no new evidence or issue new indictments, thus fulfilling none of the objectives of a standard criminal investigation. The wording of the verdicts, and a comprehensive political project put in place to promote it, suggests three main objectives behind the novel genocide of the Soviet people trope, absolving the Soviet Union of responsibility for the outbreak of the Second World War, counterbalancing the efforts of the Ukrainian government to seek international recognition of Holodomor as an act of genocide, and drawing a parallel between Nazi crimes and those ascribed to “Ukrainian neo-Nazis.” Russian genocide trials are a crass example of sham justice and a manifestation of lawfare.
China’s ethnic policy is characterized by a strong promotion of ethnic equality and unity and regional ethnic autonomy under the unified multi-ethnic State framework. With regional ethnic autonomy at its core, this is a policy of precision autonomy and grouphood promotion. On the other hand, genocide is a crime of grouphood destruction, committed with the specific intent (dolus specialis) to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. An examination of the main tenets of China’s ethnic policy and the specific intent element of the crime of genocide makes it crystal clear that, instead of aiming to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such”, China’s ethnic policy aims to do the opposite, i.e., to promote the perception of the grouphood, the wellbeing and flourishing of every ethnic group. China’s policy of ethnic equality and unity and regional ethnic autonomy under the unified multiethnic State framework is thus the antithesis to genocidal intent of grouphood destruction. The increase of the Uygur population from 2.2 million to 12 million and of the life expectancy of the group from 30 to 74.7 years in Xinjiang over the past 60 years and the idolization of Uygur actors and actresses in China and beyond put on conspicuous display the successful reality of this policy.
Contrary to conventional wisdom, there has been a continuing though vacillating gulf between the requirements of international law and the UN on the question of Palestine. This book explores the UN's management of the longest-running problem on its agenda, critically assessing tensions between the organization's position and international law. What forms has the UN's failure to respect international law taken, and with what implications? The author critically interrogates the received wisdom regarding the UN's fealty to the international rule of law, in favour of what is described as an international rule by law. This book demonstrates that through the actions of the UN, Palestine and its people have been committed to a state of what the author calls 'international legal subalternity', according to which the promise of justice through international law is repeatedly proffered under a cloak of political legitimacy furnished by the international community, but its realization is interminably withheld.
Criminal law, according to George Fletcher, has become localized law in the sense that each country and, within the USA, each state has adopted its own set of criminal codes, conceptions of punishable behaviour, etc. In this book, Fletcher maintains that there is much greater unity among diverse systems of criminal justice than commonly realized, and that any adequate system of criminal law necessarily must address a set of universal, basic issues. He introduces and sets out the twelve concepts that shape and guide every system of criminal justice, knowledge of which is essential to understanding the structure of the law and its local and national variations.
This is a comprehensive study of the evolution and protection of the branch of human rights which is devoted to `minorities'. This general rubric covers ethnic, religious, racial, and cultural minorities. The general area of `minority rights', sometimes grouped with the emerging study of `rights of peoples' is talked of as the new generation of human rights which will expand enormously over the coming years.
The existence of an international law obligation to investigate, prosecute, and provide redress for at least certain human rights violations raises but does not solve a host of thorny legal issues. Can a state exempt itself from its obligations by passing domestic laws granting total or partial amnesty? Could such an amnesty be justified as a permissible derogation from existing international commitments? And could a state avoid most if not all its obligations if potential defendants successfully raise the defenses of superior orders or the statute of limitations?
At a time of increasing prominence of the workings and judgements of international courts, recent interdisciplinary work has illuminated the deeply uneven ways in which violence is labelled, understood, and acted upon. Attempting to place work in genocide studies in conversation with current geographical scholarship, this paper argues that there are intrinsic spatial qualities to deliberations over whether an act of violence constitutes genocide. Understanding these invocations of space helps explain how accountability for violence is spatially contained, often severing judgement from wider historical or geopolitical contexts. This argument is made through analysis of the build up to, and enactment of, the legal deliberations at the International Court of Justice brought by The Gambia against Myanmar in relation to the expulsion of the Rohingya from Rakhine State, Myanmar. Such investigative work reveals the intrinsically geographical nature of both designations of genocidal acts and the intimate processes of legal deliberation itself.
The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of human rights for many decades. During the last two waves of military crackdowns in Rakhine State (October 2016 to January 2017; August to September 2017), the Tatmadaw army and civilians committed atrocities against the Rohingya that amounted to crimes against humanity and genocide. Advocates for the Rohingya's suffering took action to leverage the findings of the investigations of international mechanisms. They endeavored for an international condemnation of Myanmar at the ICJ, and they filed a complaint in an Argentinian court for the application of universal jurisdiction to prosecute the military and the political leadership responsible for ordering and committing the atrocities. They also encouraged an investigation of the atrocities in the ICC. The litigators’ main focus was set on genocide. However, while genocide carries the stigma of being the most heinous of crimes, it is also the hardest to prove, particularly the special intent to commit it. This article assesses the chances of the triple strategy applied by the Rohingya advocates. It argues that litigating the case in three different fora, assures that the forums back each other up, so that the flaws of one are compensated by the others. Thus, the chances for accountability for the crime of genocide are increased. The fora work interoperably to achieve the goal of proving the occurrence of genocide in Myanmar so as to impose state responsibility and individual criminal responsibility.
On 8 June 2021, the International Residual Mechanism for Criminal Tribunals confirmed the genocide conviction of General Ratko Mladić for the murder of thousands of Muslim men and boys in Srebrenica during the summer of 1995. The judgment also dismissed the Prosecution’s appeal of the Trial Chamber’s acquittal of Mladić on a genocide charge related to the 1992–95 ethnic cleansing campaign in six Bosnian municipalities. This judgment marked the ICTY’s final judicial interpretation of the Genocide Convention. It is a capstone on a rich interpretative corpus of law related to the crime of genocide and together with the important judgments and decisions of the ICTR and other international criminal tribunals forms a comprehensive jurisprudence of the 1948 Genocide Convention. On 28 May 2021, 11 days before the historic Mladić Appeal Judgment, Germany recognized that its crimes against the Herero and Nama peoples constituted genocide as defined by the Convention in 1948. The Herero/Nama Genocides, having their roots in German colonialism in southwest Africa, resulted in the estimated biological destruction of 80% of the Herero people and 60% of the Nama people between 1904 and 1908 in, what is now, Namibia and Botswana. This chapter surveys the current state of the law interpreting the Genocide Convention and in doing so, places it within the context of these first and lesser-known genocides of the twentieth century.KeywordsGenocideHereroNamaEthnic cleansingMladic Appeal JudgmentGenocide Convention
