1 00:00:01,160 --> 00:00:02,460 Article 6 of 2 00:00:02,460 --> 00:00:03,100 the Rome Statute 3 00:00:03,100 --> 00:00:05,100 of the International Criminal Court 4 00:00:05,100 --> 00:00:07,660 sets out the definition of the crime of genocide 5 00:00:07,660 --> 00:00:09,940 It's the first of the provisions of 6 00:00:09,940 --> 00:00:11,080 the Rome Statute 7 00:00:11,080 --> 00:00:13,080 that define the crimes 8 00:00:13,080 --> 00:00:15,080 the crimes are described as being 9 00:00:15,080 --> 00:00:17,080 the most serious crimes of concern 10 00:00:17,080 --> 00:00:18,280 to the international community 11 00:00:18,280 --> 00:00:18,680 as a whole. 12 00:00:18,680 --> 00:00:23,020 The other crimes in Articles 7, 8 and 8 Bis. 13 00:00:23,020 --> 00:00:26,020 are crimes against humanity, war crimes 14 00:00:26,020 --> 00:00:28,020 and the crime of aggression 15 00:00:28,020 --> 00:00:30,740 When the Rome Statute was being adopted 16 00:00:30,740 --> 00:00:32,740 there was a period of great 17 00:00:32,740 --> 00:00:35,060 this was a culmination of a period of great 18 00:00:35,060 --> 00:00:37,640 dynamism in terms of the legal development 19 00:00:37,640 --> 00:00:39,640 so there was a great expansion in the 20 00:00:39,640 --> 00:00:41,980 definitions of international crimes 21 00:00:41,980 --> 00:00:43,980 and we can see that 22 00:00:43,980 --> 00:00:45,740 particularly, in the definitions of 23 00:00:45,740 --> 00:00:48,120 crimes against humanity and war crimes 24 00:00:48,120 --> 00:00:50,120 where huge innovations were made 25 00:00:50,120 --> 00:00:52,340 compared to the first phase of 26 00:00:52,340 --> 00:00:54,200 International Criminal Law 27 00:00:54,200 --> 00:00:55,360 when these crimes were defined 28 00:00:55,360 --> 00:00:56,280 I am talking about the 29 00:00:56,280 --> 00:00:58,280 post second World war period 30 00:00:58,280 --> 00:01:00,700 Genocide definition on the other hand 31 00:01:00,700 --> 00:01:02,960 in article 6 is quite remarkable 32 00:01:02,960 --> 00:01:05,360 because it is essentially unchanged 33 00:01:05,360 --> 00:01:09,480 from article 2 of the 1948 convention 34 00:01:09,480 --> 00:01:11,480 on the prevention and punishment on the 35 00:01:11,480 --> 00:01:13,480 crime of genocide 36 00:01:13,600 --> 00:01:17,240 And so we have this kind of a normal situation 37 00:01:17,520 --> 00:01:19,560 where the two of the crimes that were 38 00:01:19,560 --> 00:01:22,020 defined at the Rome Conference in 1998 39 00:01:22,020 --> 00:01:25,620 in article 7 and 8 on crimes against 40 00:01:25,620 --> 00:01:26,840 humanity and war crimes 41 00:01:26,840 --> 00:01:29,480 demonstrated great expansion in the law 42 00:01:29,480 --> 00:01:33,180 compared to what it was understood to be previously 43 00:01:33,180 --> 00:01:36,540 And one of them is very very stable and apparently 44 00:01:36,540 --> 00:01:38,540 conservative 45 00:01:38,540 --> 00:01:43,100 Well, as I would try and explain is what was going on 46 00:01:43,100 --> 00:01:49,280 was that there was a very great overlap between the 47 00:01:49,280 --> 00:01:51,280 notion of genocide and the notion of 48 00:01:51,280 --> 00:01:53,280 crimes against humanity 49 00:01:53,840 --> 00:01:56,680 There were gaps in between them 50 00:01:56,680 --> 00:01:58,260 that were inherited from the 1940s 51 00:01:58,260 --> 00:02:00,740 In particular the definition of genocide 52 00:02:00,740 --> 00:02:03,900 under the convention could apply in peace time 53 00:02:03,900 --> 00:02:06,220 or else it was understood in the 1940s 54 00:02:06,220 --> 00:02:09,000 that crimes against humanity can only be 55 00:02:09,000 --> 00:02:11,800 committed in the context of an armed conflict 56 00:02:11,800 --> 00:02:15,860 At that time perhaps even an international armed conflict 57 00:02:15,860 --> 00:02:20,300 and, the law of course changed so that it could deal with 58 00:02:20,300 --> 00:02:23,740 atrocities committed in peace time 59 00:02:23,740 --> 00:02:25,740 a wide range of atrocities committed in peace time 60 00:02:26,980 --> 00:02:29,880 When that law was codified 61 00:02:29,880 --> 00:02:31,880 when the changes in the law were codified 62 00:02:31,880 --> 00:02:33,880 at Rome in 1998 63 00:02:33,880 --> 00:02:35,880 in the Rome Statute 64 00:02:35,880 --> 00:02:37,880 in some sense there was a decision 65 00:02:37,880 --> 00:02:40,620 to for the expansion to take place 66 00:02:40,620 --> 00:02:42,900 the other definition of the crimes against humanity 67 00:02:42,900 --> 00:02:47,080 in article 7 and to leave the defination of the genocide alone 68 00:02:47,080 --> 00:02:49,280 In the next few minutes 69 00:02:49,280 --> 00:02:50,680 I am going to speak a little about 70 00:02:50,680 --> 00:02:52,680 the elements of that definition 71 00:02:52,680 --> 00:02:54,680 how they've been interpreted by the courts 72 00:02:54,680 --> 00:02:55,460 how they're to be applied 73 00:02:55,460 --> 00:02:59,680 And in the other episodes I will 74 00:02:59,680 --> 00:03:03,400 explain the five sub paragraphs 75 00:03:03,400 --> 00:03:04,560 or paragraphs of article 6 76 00:03:04,560 --> 00:03:07,480 where the acts of genocide are defined 77 00:03:07,480 --> 00:03:10,580 like crimes against humanity 78 00:03:10,580 --> 00:03:12,580 like the crime of aggression in particular 79 00:03:12,580 --> 00:03:15,620 The crime of genocide is defined with 80 00:03:15,620 --> 00:03:18,240 an introductory paragraph which is sometimes 81 00:03:18,240 --> 00:03:20,720 called the Chapeau, the french word for hat 82 00:03:20,720 --> 00:03:24,520 and then it is followed by five punishable acts 83 00:03:24,520 --> 00:03:26,520 of genocide 84 00:03:26,520 --> 00:03:28,520 And this presentation right now is 85 00:03:28,520 --> 00:03:31,420 focused exclusively on that introductory paragraph 86 00:03:31,420 --> 00:03:33,420 or Chapeau 87 00:03:33,420 --> 00:03:35,880 That introductory paragraph, I will recite it, 88 00:03:35,880 --> 00:03:40,640 "Any of the following acts committed with an intent 89 00:03:40,640 --> 00:03:44,180 to destroy in whole or in part, a national, ethnic 90 00:03:44,180 --> 00:03:46,660 racial or religious group as such.." 91 00:03:46,660 --> 00:03:50,180 And then what follows are the five punishable acts 92 00:03:50,180 --> 00:03:52,560 starting with the act of killing 93 00:03:52,560 --> 00:03:55,840 So that's what those first words refer to 94 00:03:55,840 --> 00:03:57,260 any of the following acts 95 00:03:57,260 --> 00:04:00,180 the part that concerns us now is what follows 96 00:04:00,180 --> 00:04:04,940 well the first part says "With intent to destroy" 97 00:04:05,860 --> 00:04:09,780 This has been a subject of considerable controversy 98 00:04:09,780 --> 00:04:14,560 because particularly there are problems with interpreting 99 00:04:14,560 --> 00:04:16,560 the notion of 'destroy' 100 00:04:17,240 --> 00:04:20,300 The concept of 'destroy' can have both 101 00:04:20,300 --> 00:04:23,480 physical and biological components 102 00:04:23,480 --> 00:04:26,060 but one can also destroy a group 103 00:04:26,060 --> 00:04:28,060 by destroying its culture 104 00:04:28,060 --> 00:04:30,060 by depriving it of its language and 105 00:04:30,060 --> 00:04:32,880 by depriving it of its economy 106 00:04:32,880 --> 00:04:34,880 many other features that will 107 00:04:34,880 --> 00:04:37,780 in terms of their practical consequence 108 00:04:37,780 --> 00:04:40,920 may bring about destruction of a group 109 00:04:40,920 --> 00:04:44,120 When the genocide convention was being drafted 110 00:04:44,120 --> 00:04:48,500 when the now article 6 of Rome statute was being drafted 111 00:04:48,500 --> 00:04:52,200 in the mid 1940s within the framework 112 00:04:52,200 --> 00:04:54,200 of the United Nations General Assembly 113 00:04:55,020 --> 00:04:58,760 The act of genocide and the notion of genocide 114 00:04:58,760 --> 00:05:03,620 was sub defined in the three particular categories 115 00:05:03,620 --> 00:05:08,880 phyical genocide, biological genocide and cultural genocide 116 00:05:10,140 --> 00:05:13,540 If one reads the drafting history of the genocide convention 117 00:05:13,540 --> 00:05:18,000 we can understand that there were three types of genocides 118 00:05:18,000 --> 00:05:20,000 that were envisaged by the drafters 119 00:05:20,000 --> 00:05:22,980 But we also know from reading the drafting history of the 120 00:05:22,980 --> 00:05:25,340 genocide convention rather, that at a certain point 121 00:05:25,340 --> 00:05:30,020 those drafters decided that they would exclude 122 00:05:30,020 --> 00:05:34,620 cultural genocide, the non violent if you want 123 00:05:34,620 --> 00:05:36,620 the forms of genocide that didn't involve 124 00:05:36,620 --> 00:05:40,880 physical destruction or the elimination of the group 125 00:05:40,880 --> 00:05:43,920 through biological means like sterilization and this sort 126 00:05:43,920 --> 00:05:44,260 of thing through biological means like sterilization and this sort 127 00:05:44,260 --> 00:05:44,280 through biological means like sterilization and this sort 128 00:05:45,580 --> 00:05:47,720 they were to be excluded from the scope of 129 00:05:47,720 --> 00:05:49,720 the genocide convention 130 00:05:49,720 --> 00:05:53,760 It was sometimes said during the debates and the general assembly 131 00:05:53,760 --> 00:05:57,020 that was properly dealt with under the Human Rights Law 132 00:05:57,020 --> 00:06:01,020 in the universal declaration of Human Rights for example 133 00:06:01,020 --> 00:06:03,020 which was then being drafted at the same time 134 00:06:03,020 --> 00:06:06,460 The idea was that the protection of minority groups under 135 00:06:06,460 --> 00:06:10,260 the human rights law was the better place for this 136 00:06:10,260 --> 00:06:12,480 What that doesn't tell us 137 00:06:12,480 --> 00:06:14,480 but what we know from other sources 138 00:06:14,480 --> 00:06:16,480 is that when the universal declaration of 139 00:06:16,480 --> 00:06:18,480 Human Rights was being drafted 140 00:06:18,480 --> 00:06:21,780 a decision was taken to exclude the protection 141 00:06:21,780 --> 00:06:21,820 of minority groups a decision was taken to exclude the protection 142 00:06:21,820 --> 00:06:22,260 of minority groups 143 00:06:22,260 --> 00:06:24,260 There was no protection for what was 144 00:06:24,260 --> 00:06:27,500 then called national minorities settled in the 145 00:06:27,500 --> 00:06:29,900 Universal declaration of Human Rights 146 00:06:29,900 --> 00:06:31,900 So there was a kind of a gap there in 147 00:06:31,900 --> 00:06:33,020 dealing with it 148 00:06:33,020 --> 00:06:36,480 In any event the text that resulted said 149 00:06:36,480 --> 00:06:38,720 that any of the following acts that 150 00:06:38,720 --> 00:06:40,720 committed with intent to destroy 151 00:06:40,720 --> 00:06:44,680 and if one relies on the drafting history 152 00:06:44,680 --> 00:06:47,020 of the genocide convention 153 00:06:47,020 --> 00:06:48,640 to interpret those words 154 00:06:48,640 --> 00:06:51,280 one would have to add before the word destroy 155 00:06:51,280 --> 00:06:54,960 or after the word destroy 156 00:06:55,020 --> 00:06:56,400 culturally, sorry! 157 00:06:56,400 --> 00:06:57,920 One would have to add the words 158 00:06:57,920 --> 00:06:59,920 physically or biologically 159 00:06:59,920 --> 00:07:02,640 In other words it excludes cultural genocides 160 00:07:02,640 --> 00:07:06,740 But we don't have to interpret legal instruments 161 00:07:06,740 --> 00:07:09,100 based on the drafting history 162 00:07:09,100 --> 00:07:12,480 especially when its 65 or 70 years old 163 00:07:12,480 --> 00:07:15,700 and we expect the texts evolve 164 00:07:15,700 --> 00:07:18,000 If one reads the text literally of 165 00:07:18,000 --> 00:07:20,000 the genocide convention 166 00:07:20,000 --> 00:07:22,000 we don't have those words 167 00:07:22,080 --> 00:07:25,040 physical, biological associated 168 00:07:25,040 --> 00:07:27,040 with the notions of destroy 169 00:07:27,140 --> 00:07:30,340 Moreover when we have our five punishable acts 170 00:07:30,340 --> 00:07:33,820 we have the fifth act which is intentionally 171 00:07:33,820 --> 00:07:36,700 transferring children from one group to another 172 00:07:36,700 --> 00:07:39,500 it is obviously not physical destruction 173 00:07:39,500 --> 00:07:42,340 or biological destruction, it is cultural destruction 174 00:07:42,340 --> 00:07:44,500 You take a children of a group 175 00:07:44,500 --> 00:07:46,500 you move them to another environment 176 00:07:46,500 --> 00:07:49,440 where they are raised by families of another group 177 00:07:49,440 --> 00:07:52,080 and they lose their cultural identity and 178 00:07:52,080 --> 00:07:54,080 the group siezes to exist. 179 00:07:54,240 --> 00:07:57,140 So if one were to just interpret the definition 180 00:07:57,140 --> 00:07:59,140 in article 6 based on the words rather than 181 00:07:59,140 --> 00:08:01,140 the drafting history of the convention 182 00:08:01,140 --> 00:08:03,700 another conclusion might be reached 183 00:08:03,700 --> 00:08:05,700 that would provide for a broader understanding 184 00:08:05,700 --> 00:08:07,700 of the notion of genocide 185 00:08:07,700 --> 00:08:09,140 that would include forms of 186 00:08:09,140 --> 00:08:10,220 cultural genocide 187 00:08:10,220 --> 00:08:12,220 and this becomes particularly important 188 00:08:12,220 --> 00:08:13,900 when we are dealing with more extreme 189 00:08:13,900 --> 00:08:16,140 forms of the destruction of a group 190 00:08:16,140 --> 00:08:19,280 that falls short of physical extermination 191 00:08:19,280 --> 00:08:23,120 One of the terms that has been used in recent years 192 00:08:23,120 --> 00:08:25,120 is Ethnic Cleansing 193 00:08:25,120 --> 00:08:27,620 You can drive a group out of its ancestral homeland 194 00:08:27,620 --> 00:08:29,780 destroy its economy 195 00:08:29,780 --> 00:08:31,780 disperse the group 196 00:08:31,780 --> 00:08:32,820 and it will seize to exist 197 00:08:32,820 --> 00:08:34,820 that's not physical destruction, 198 00:08:34,820 --> 00:08:36,820 it's not biological destruction 199 00:08:36,820 --> 00:08:38,820 but the end result is destruction 200 00:08:39,860 --> 00:08:42,280 So we have these two options in 201 00:08:42,280 --> 00:08:45,120 the terms of the interpretation of article 6 202 00:08:45,120 --> 00:08:49,000 We don't have any significant interpretation 203 00:08:49,000 --> 00:08:52,040 of the article 6 by the International Criminal Court 204 00:08:52,040 --> 00:08:55,880 we just have one small decision on the issuance 205 00:08:55,880 --> 00:08:57,880 of an arrest warrant by a pre-trial chamber 206 00:08:57,880 --> 00:09:01,300 I wouldn't think that it would be a terribly authoritative 207 00:09:01,300 --> 00:09:05,880 decision, although it is important and valuable to read 208 00:09:05,880 --> 00:09:08,640 but we don't have a mature developed case law 209 00:09:08,640 --> 00:09:12,740 from the International Criminal Court on what's in Article 6 210 00:09:12,740 --> 00:09:17,420 but we do from other tribunals in recent years 211 00:09:17,420 --> 00:09:18,060 in particular 212 00:09:18,060 --> 00:09:21,980 the abhor tribunals from the former Yuguslavia and Rwanda 213 00:09:21,980 --> 00:09:25,580 And also from the International court of justice 214 00:09:25,580 --> 00:09:27,580 And these bodies have all 215 00:09:27,580 --> 00:09:31,460 issued very very elaborate interpretations 216 00:09:31,980 --> 00:09:33,900 of essentially the same text 217 00:09:33,900 --> 00:09:35,900 of the article 6 of the Rome Statute 218 00:09:35,900 --> 00:09:37,900 or the article 2 of the genocide convention 219 00:09:37,900 --> 00:09:42,540 and they have, I think it is accurate to say 220 00:09:42,540 --> 00:09:45,520 generally come to a conclusion to say that genocide 221 00:09:45,520 --> 00:09:48,220 is confined to physical extermination 222 00:09:48,220 --> 00:09:51,040 we could add biological but they did exclude 223 00:09:51,040 --> 00:09:54,100 the cultural destruction of the group 224 00:09:54,100 --> 00:09:56,740 that could evolve in the future 225 00:09:56,740 --> 00:09:58,920 that could change but my own view 226 00:09:58,920 --> 00:10:02,080 is that it is unlikely to take place 227 00:10:02,080 --> 00:10:06,200 because this issue of cultural attacks on groups 228 00:10:06,200 --> 00:10:09,840 that may lead to their destruction is very very 229 00:10:09,840 --> 00:10:12,560 properly addressed under the label of crimes 230 00:10:12,560 --> 00:10:13,900 against humanity. 231 00:10:13,900 --> 00:10:16,240 And so there is not a need perhaps 232 00:10:16,240 --> 00:10:20,980 in the earlier years, following the 1940s 233 00:10:20,980 --> 00:10:24,700 until the recent decades there was great doubt 234 00:10:24,700 --> 00:10:26,700 about whether crimes against humanity 235 00:10:26,700 --> 00:10:28,700 can be committed in peace time 236 00:10:28,700 --> 00:10:32,260 and thus in the past acts of persecution 237 00:10:32,260 --> 00:10:36,400 and other types of acts that might threaten the 238 00:10:36,400 --> 00:10:38,740 existence of the group without actually 239 00:10:38,740 --> 00:10:41,280 physically exterminating the group 240 00:10:41,280 --> 00:10:44,340 If they were committed in peace time 241 00:10:44,340 --> 00:10:46,340 it wasn't obvious at all if they were 242 00:10:46,340 --> 00:10:48,340 covered at the notion of crimes against humanity 243 00:10:48,340 --> 00:10:50,340 that's no longer true 244 00:10:50,340 --> 00:10:52,340 So crimes against humanity 245 00:10:52,340 --> 00:10:54,340 adequately addresses the problem 246 00:10:54,340 --> 00:10:56,340 we don't, therefore, there is no 247 00:10:56,340 --> 00:10:58,660 great need to expand the definition of genocide 248 00:10:58,660 --> 00:11:00,660 in order to fill this gap. 249 00:11:00,660 --> 00:11:05,860 Let me turn to the next element in the definition 250 00:11:05,860 --> 00:11:07,860 which are these words. "In whole or in part" 251 00:11:07,860 --> 00:11:12,200 they were added I think back in the 1940s 252 00:11:12,200 --> 00:11:16,100 to provide an answer to someone charged with genocide 253 00:11:16,100 --> 00:11:20,500 for example if we take the case of the Nazi Genocide 254 00:11:20,500 --> 00:11:23,480 of the European Jews, someone would argue that 255 00:11:23,480 --> 00:11:25,480 Well I didn't mean to exterminate all the Jews 256 00:11:25,480 --> 00:11:27,920 on planet Earth, I just meant to exterminate the ones 257 00:11:27,920 --> 00:11:31,480 in Germany or the parts of Europe that were occupied by 258 00:11:31,480 --> 00:11:33,480 the Nazi. 259 00:11:33,480 --> 00:11:35,480 So this provides an adequate answer 260 00:11:35,480 --> 00:11:39,060 so it can cover in whole or in part 261 00:11:39,060 --> 00:11:43,840 In the more recent interpretation of that provision 262 00:11:44,960 --> 00:11:49,640 the judges intended to add an adjective before the 263 00:11:49,640 --> 00:11:52,660 part, they talk about 'substantial' part 264 00:11:52,660 --> 00:11:55,980 Now there's still a lot of subjectivity in that 265 00:11:55,980 --> 00:12:00,700 the great genocides, the big genocides of the 20th Centuries 266 00:12:00,700 --> 00:12:05,000 The Armenians of 1915, The Jews of 1940s 267 00:12:05,000 --> 00:12:09,440 and the Tutsi and Rwandian in 1994, have all involved 268 00:12:09,440 --> 00:12:12,700 hundreds of thousands or even millions of people 269 00:12:12,700 --> 00:12:17,320 But we do have a judgment of the international criminal tribunal 270 00:12:17,320 --> 00:12:19,320 for the Yugoslavian more than one judgment 271 00:12:19,320 --> 00:12:22,880 And this has been echoed in the case law of 272 00:12:22,880 --> 00:12:24,880 international court of justice 273 00:12:24,880 --> 00:12:28,720 that has recognized that destroying a group of 274 00:12:28,720 --> 00:12:30,720 seven to eight thousand people 275 00:12:30,720 --> 00:12:32,980 could constitute genocide 276 00:12:32,980 --> 00:12:37,420 The size is not decisive 277 00:12:37,420 --> 00:12:39,840 there is no threshold in terms of numbers 278 00:12:39,840 --> 00:12:43,000 there is no threshold in percentage of the group 279 00:12:43,340 --> 00:12:45,560 and of course, defining the groups 280 00:12:45,560 --> 00:12:48,140 it is just like those Russian dolls 281 00:12:48,140 --> 00:12:52,000 that you can open one up and there is another one inside 282 00:12:52,000 --> 00:12:56,100 So when the International Criminal Tribunal for the former 283 00:12:56,100 --> 00:13:01,400 Yugoslavia was looking at the massacre of the extermination 284 00:13:01,400 --> 00:13:09,700 really, of the men of --- an enclave of a community in Bosnian --- 285 00:13:09,700 --> 00:13:11,700 during the conflict in 1995 286 00:13:11,700 --> 00:13:13,700 There was a question, 287 00:13:13,700 --> 00:13:16,780 Were they part of the group of Muslims on the planet, 288 00:13:16,780 --> 00:13:21,040 a group that perhaps has about a billion people? 289 00:13:21,040 --> 00:13:24,020 Were they part of the Muslims in Europe? 290 00:13:24,020 --> 00:13:26,320 of the Muslims in the former Yugoslavia? 291 00:13:26,320 --> 00:13:29,560 of Muslims in Bosnia --? 292 00:13:29,560 --> 00:13:34,360 Or Muslims within in that part of Bosnian ---? 293 00:13:34,360 --> 00:13:38,260 So this is what all the debate is well before 294 00:13:38,260 --> 00:13:40,480 the courts is to exactly how to apply those terms 295 00:13:40,480 --> 00:13:42,480 There is another theory as well about the 296 00:13:42,480 --> 00:13:44,480 notion of 'in part' 297 00:13:44,480 --> 00:13:47,020 is that it could include a significant part 298 00:13:47,020 --> 00:13:49,980 so instead of adding the adjective substantial 299 00:13:49,980 --> 00:13:52,500 we add significant 300 00:13:52,500 --> 00:13:56,500 but this a concept that I have never really wanted to 301 00:13:56,500 --> 00:13:59,720 because it involves value judgments about the importance 302 00:13:59,720 --> 00:14:04,640 of different types of people within a community 303 00:14:04,640 --> 00:14:07,140 And I find that a difficult notion 304 00:14:07,140 --> 00:14:10,500 I think it leads us to a kind of --- 305 00:14:10,500 --> 00:14:13,760 that is I think unhappy 306 00:14:13,760 --> 00:14:17,340 and so I personally don't encourage that approach 307 00:14:17,340 --> 00:14:19,340 The courts have not 308 00:14:19,340 --> 00:14:21,340 really although they pay kind of a lip service 309 00:14:21,340 --> 00:14:23,340 toward acknowledging that it might be possible 310 00:14:23,340 --> 00:14:26,000 we don't actually have any judgments for someone who has 311 00:14:26,000 --> 00:14:29,580 been convicted because they attempted to destroy a 312 00:14:29,580 --> 00:14:33,500 significant part rather than a substantial part of the group. 313 00:14:34,700 --> 00:14:38,320 The next and this is the final part and it is 314 00:14:38,320 --> 00:14:40,720 very essential to the definition of the Genocide 315 00:14:40,720 --> 00:14:43,780 it is the list of the protected groups 316 00:14:43,780 --> 00:14:46,480 National, ethnic, racial or religious groups 317 00:14:46,480 --> 00:14:49,980 it's a rather narrow group 318 00:14:49,980 --> 00:14:53,360 It certainly doesn't cover all groups 319 00:14:53,360 --> 00:14:55,360 and it has led to debates about whether the 320 00:14:55,360 --> 00:14:57,820 ultimate purpose of the definition of genocide is 321 00:14:57,820 --> 00:15:00,980 to protect groups from extermination 322 00:15:00,980 --> 00:15:06,040 or is to protect groups that are defined by nationality, 323 00:15:06,040 --> 00:15:08,640 ethnicity, religion and race 324 00:15:08,640 --> 00:15:13,980 I think the case law of the International Tribunal 325 00:15:13,980 --> 00:15:17,200 says, tended to keep that definition narrow have 326 00:15:17,200 --> 00:15:20,960 resisted for example attempts to add into the definition 327 00:15:20,960 --> 00:15:22,960 Political groups 328 00:15:22,960 --> 00:15:26,200 There was at the time when the Genocide Convention 329 00:15:26,200 --> 00:15:27,420 was being drafted 330 00:15:27,420 --> 00:15:30,840 there were very serious proposals that were debated 331 00:15:30,840 --> 00:15:34,000 include within that enumeration political groups 332 00:15:34,000 --> 00:15:36,000 By including political groups 333 00:15:36,000 --> 00:15:39,120 it would have made definitions of genocide 334 00:15:39,120 --> 00:15:42,680 rather more like the definition of crimes against humanity 335 00:15:42,680 --> 00:15:45,760 which deals with a wide range of groups 336 00:15:45,760 --> 00:15:47,760 It looks like in many ways in our 337 00:15:47,760 --> 00:15:52,400 definition of discrimination in places like Article 2 338 00:15:52,400 --> 00:15:54,400 of the Universal declaration of Human Rights 339 00:15:54,400 --> 00:16:00,440 But I think that definition has been relatively confined 340 00:16:00,440 --> 00:16:04,440 There were some early cases at the International Criminal Tribunal 341 00:16:04,440 --> 00:16:08,960 for a longer that suggested perhaps that definition was really 342 00:16:08,960 --> 00:16:11,340 meant to cover all permanent and stable groups 343 00:16:11,340 --> 00:16:14,720 but I don't think that definition has had much of an echo 344 00:16:14,720 --> 00:16:16,720 in the case law 345 00:16:16,720 --> 00:16:18,720 In interpreting the groups 346 00:16:18,720 --> 00:16:20,720 there have been two other approaches 347 00:16:20,720 --> 00:16:22,220 on how to define those groups 348 00:16:22,220 --> 00:16:24,220 because it is not straightforward 349 00:16:24,220 --> 00:16:27,820 how to use the term national, ethnic, racial and religious groups 350 00:16:27,820 --> 00:16:32,380 If you take the notion of racial groups for example 351 00:16:32,380 --> 00:16:36,760 there is great resistance in the modern International Human Rights Law 352 00:16:36,760 --> 00:16:38,760 even to the notion that such groups exist 353 00:16:39,480 --> 00:16:43,280 And yet it seems like there would be something pervasive 354 00:16:43,280 --> 00:16:43,300 about the idea of, because we reject the notion of the And yet it seems like there would be something pervasive 355 00:16:43,300 --> 00:16:46,260 about the idea of, because we reject the notion of the 356 00:16:46,260 --> 00:16:49,200 existence of racial groups that we would somehow 357 00:16:49,200 --> 00:16:52,400 shrink or narrow the protection of genocide 358 00:16:52,400 --> 00:16:54,720 from what it was in 1940s 359 00:16:54,720 --> 00:16:57,280 when most people were not thorough 360 00:16:57,280 --> 00:16:59,280 with the idea that racial groups existed. 361 00:16:59,280 --> 00:17:02,460 I should say that if you look at the way the term was used 362 00:17:02,460 --> 00:17:06,460 in the English language in the 1940s, people spoke about the 363 00:17:06,460 --> 00:17:10,140 German Race, the English race and the Jewish Race 364 00:17:10,140 --> 00:17:15,420 and so they used the term in how today we would speak about 365 00:17:15,420 --> 00:17:18,460 national, ethnic or religious groups. 366 00:17:20,740 --> 00:17:23,080 There have been some attempts by the courts 367 00:17:23,080 --> 00:17:25,900 to identify these groups by objective criteria 368 00:17:25,900 --> 00:17:30,800 looking at what it is that gives you the feature of 369 00:17:30,800 --> 00:17:33,060 belonging to an ethnic group. 370 00:17:33,060 --> 00:17:38,520 And the case law I think has now largely rejected 371 00:17:38,520 --> 00:17:40,900 that approach in favour of a subjective one 372 00:17:40,900 --> 00:17:43,400 based on the vision of the perpetrator 373 00:17:43,400 --> 00:17:46,860 In other words if the perpetrator thinks that 374 00:17:46,860 --> 00:17:50,600 you are a racial group and thinks that individual victims 375 00:17:50,600 --> 00:17:52,600 are a part of the racial group 376 00:17:52,600 --> 00:17:56,980 than we satisfy the requirements of the definition of Genocide. 377 00:17:56,980 --> 00:18:01,660 And as I said that the case law has largely confirmed this. 378 00:18:01,900 --> 00:18:09,180 The definition in article 6, ends with the words 'as such' 379 00:18:09,180 --> 00:18:13,280 don't confuse this with the words 'such as' because 380 00:18:13,280 --> 00:18:17,480 'such as' would suggest that the five acts of genocide that follow 381 00:18:17,480 --> 00:18:24,040 in the five paragraphs to identify acts is an open enumeration 382 00:18:24,040 --> 00:18:28,400 In other words, it is not exclusive, closed or limited to those 383 00:18:28,400 --> 00:18:31,180 five acts, but that's not what it says 384 00:18:31,180 --> 00:18:34,820 It says 'as such', and when we read the drafting history 385 00:18:34,820 --> 00:18:38,380 to try and find what could possibly have been meant by 386 00:18:38,380 --> 00:18:39,420 those enigmatic words 387 00:18:39,420 --> 00:18:45,280 When sometimes the case, when treaties and international instruments 388 00:18:45,280 --> 00:18:48,020 are being negotiated, and they simply couldn't agree 389 00:18:48,020 --> 00:18:52,500 and so they put those in as a kind of a placeholder 390 00:18:52,500 --> 00:18:55,900 for the judges to address them if they wanted to 391 00:18:55,900 --> 00:18:58,480 It was a compromise, it was what they used to call 392 00:18:58,480 --> 00:19:02,980 when the Rome Statute was being adopted, constructive ambiguity 393 00:19:02,980 --> 00:19:04,980 what the debate was about, 394 00:19:04,980 --> 00:19:09,420 whether genocide required an element of motive 395 00:19:09,420 --> 00:19:13,680 In other words, whether it was not just an intent 396 00:19:13,680 --> 00:19:15,520 to destroy a group 397 00:19:15,520 --> 00:19:17,520 or whether it was an intent to destroy the group 398 00:19:17,520 --> 00:19:20,660 because it was a national, ethnic, racial or religious group 399 00:19:20,660 --> 00:19:24,460 And I think that the case law is very still now and 400 00:19:24,460 --> 00:19:29,540 entirely not clear whether there is that element of motive in effect 401 00:19:29,540 --> 00:19:31,980 when we discuss crimes against humanity and 402 00:19:31,980 --> 00:19:38,160 we call it discriminatory intent and I guess by calling 403 00:19:38,160 --> 00:19:41,000 it discriminatory intent instead of discriminatory motive 404 00:19:41,000 --> 00:19:43,980 we further confuse things 405 00:19:43,980 --> 00:19:48,000 All of this to say that there is still a great deal 406 00:19:48,000 --> 00:19:50,960 room for interpretation and debate about this 407 00:19:50,960 --> 00:19:54,980 definition of genocide 408 00:19:54,980 --> 00:19:58,020 Let me conclude by saying that although the words were 409 00:19:58,020 --> 00:20:03,960 adopted in 1948, between 1948 and the end of the 20th Century 410 00:20:03,960 --> 00:20:09,680 there was a very very little legal interpretation of the 411 00:20:09,680 --> 00:20:14,400 defination of genocide. In that defination of article 2 with the convention 412 00:20:14,400 --> 00:20:17,980 and that was then pasted into the Rome Statute is Article 6 413 00:20:17,980 --> 00:20:23,980 The development, the judicial development, the interpretive development 414 00:20:23,980 --> 00:20:28,300 of the crime of genocide is all something that started 415 00:20:28,300 --> 00:20:33,320 in the late 1990s and continued to present day 416 00:20:33,320 --> 00:20:35,320 although probably in the recent years 417 00:20:35,320 --> 00:20:37,320 it has tended to stabilize 418 00:20:37,320 --> 00:20:43,220 and there is less dynamism in the interpretation of the definition of Genocide 419 00:20:43,220 --> 00:20:46,060 Let me just conclude with one final point 420 00:20:46,840 --> 00:20:50,540 The word genocide outside of the definition 421 00:20:50,540 --> 00:20:56,440 probably means a lot of other things to people 422 00:20:56,440 --> 00:20:59,960 in the non-legal context than it does to lawyers 423 00:20:59,960 --> 00:21:01,960 Lawyers read that definition 424 00:21:01,960 --> 00:21:04,240 we use it for prosecution, we use it in other areas 425 00:21:04,240 --> 00:21:07,060 as well state responsibility for example 426 00:21:07,060 --> 00:21:11,980 but we have a fairly precise legal definition of genocide 427 00:21:11,980 --> 00:21:16,420 In the popular conscience, genocide is often viewed 428 00:21:16,420 --> 00:21:16,540 as being some broader notion of atrocity In the popular conscience, genocide is often viewed 429 00:21:16,540 --> 00:21:19,540 as being some broader notion of atrocity 430 00:21:19,540 --> 00:21:24,000 and this makes it sometimes awkward or difficult for lawyers 431 00:21:24,000 --> 00:21:28,640 who have to explain to victims of various atrocities 432 00:21:28,640 --> 00:21:33,260 that their victimization is probably better described by 433 00:21:33,260 --> 00:21:36,960 Crimes against humanity than by the term genocide 434 00:21:36,960 --> 00:21:41,260 and often reactions to this are sometimes disappointment 435 00:21:41,260 --> 00:21:43,260 and sometimes even anger 436 00:21:43,260 --> 00:21:47,060 So its an interesting problem that we confront 437 00:21:47,060 --> 00:21:52,000 outside the legal context but certainly in use of the word 438 00:21:52,000 --> 00:21:53,300 Genocide. 439 00:21:53,300 --> 00:21:56,700 I invite you to look at the other segments that I am 440 00:21:56,700 --> 00:22:00,080 delivering with the punishable acts of genocide.