Article 6 of
the Rome Statute
of the International Criminal Court
sets out the definition of the crime of genocide
It's the first of the provisions of
the Rome Statute
that define the crimes
the crimes are described as being
the most serious crimes of concern
to the international community
as a whole.
The other crimes in Articles 7, 8 and 8 Bis.
are crimes against humanity, war crimes
and the crime of aggression
When the Rome Statute was being adopted
there was a period of great
this was a culmination of a period of great
dynamism in terms of the legal development
so there was a great expansion in the
definitions of international crimes
and we can see that
particularly, in the definitions of
crimes against humanity and war crimes
where huge innovations were made
compared to the first phase of
International Criminal Law
when these crimes were defined
I am talking about the
post second World war period
Genocide definition on the other hand
in article 6 is quite remarkable
because it is essentially unchanged
from article 2 of the 1948 convention
on the prevention and punishment on the
crime of genocide
And so we have this kind of a normal situation
where the two of the crimes that were
defined at the Rome Conference in 1998
in article 7 and 8 on crimes against
humanity and war crimes
demonstrated great expansion in the law
compared to what it was understood to be previously
And one of them is very very stable and apparently
conservative
Well, as I would try and explain is what was going on
was that there was a very great overlap between the
notion of genocide and the notion of
crimes against humanity
There were gaps in between them
that were inherited from the 1940s
In particular the definition of genocide
under the convention could apply in peace time
or else it was understood in the 1940s
that crimes against humanity can only be
committed in the context of an armed conflict
At that time perhaps even an international armed conflict
and, the law of course changed so that it could deal with
atrocities committed in peace time
a wide range of atrocities committed in peace time
When that law was codified
when the changes in the law were codified
at Rome in 1998
in the Rome Statute
in some sense there was a decision
to for the expansion to take place
the other definition of the crimes against humanity
in article 7 and to leave the defination of the genocide alone
In the next few minutes
I am going to speak a little about
the elements of that definition
how they've been interpreted by the courts
how they're to be applied
And in the other episodes I will
explain the five sub paragraphs
or paragraphs of article 6
where the acts of genocide are defined
like crimes against humanity
like the crime of aggression in particular
The crime of genocide is defined with
an introductory paragraph which is sometimes
called the Chapeau, the french word for hat
and then it is followed by five punishable acts
of genocide
And this presentation right now is
focused exclusively on that introductory paragraph
or Chapeau
That introductory paragraph, I will recite it,
"Any of the following acts committed with an intent
to destroy in whole or in part, a national, ethnic
racial or religious group as such.."
And then what follows are the five punishable acts
starting with the act of killing
So that's what those first words refer to
any of the following acts
the part that concerns us now is what follows
well the first part says "With intent to destroy"
This has been a subject of considerable controversy
because particularly there are problems with interpreting
the notion of 'destroy'
The concept of 'destroy' can have both
physical and biological components
but one can also destroy a group
by destroying its culture
by depriving it of its language and
by depriving it of its economy
many other features that will
in terms of their practical consequence
may bring about destruction of a group
When the genocide convention was being drafted
when the now article 6 of Rome statute was being drafted
in the mid 1940s within the framework
of the United Nations General Assembly
The act of genocide and the notion of genocide
was sub defined in the three particular categories
phyical genocide, biological genocide and cultural genocide
If one reads the drafting history of the genocide convention
we can understand that there were three types of genocides
that were envisaged by the drafters
But we also know from reading the drafting history of the
genocide convention rather, that at a certain point
those drafters decided that they would exclude
cultural genocide, the non violent if you want
the forms of genocide that didn't involve
physical destruction or the elimination of the group
through biological means like sterilization and this sort
of thing through biological means like sterilization and this sort
they were to be excluded from the scope of
the genocide convention
It was sometimes said during the debates and the general assembly
that was properly dealt with under the Human Rights Law
in the universal declaration of Human Rights for example
which was then being drafted at the same time
The idea was that the protection of minority groups under
the human rights law was the better place for this
What that doesn't tell us
but what we know from other sources
is that when the universal declaration of
Human Rights was being drafted
a decision was taken to exclude the protection
of minority groups a decision was taken to exclude the protection
of minority groups
There was no protection for what was
then called national minorities settled in the
Universal declaration of Human Rights
So there was a kind of a gap there in
dealing with it
In any event the text that resulted said
that any of the following acts that
committed with intent to destroy
and if one relies on the drafting history
of the genocide convention
to interpret those words
one would have to add before the word destroy
or after the word destroy
culturally, sorry!
One would have to add the words
physically or biologically
In other words it excludes cultural genocides
But we don't have to interpret legal instruments
based on the drafting history
especially when its 65 or 70 years old
and we expect the texts evolve
If one reads the text literally of
the genocide convention
we don't have those words
physical, biological associated
with the notions of destroy
Moreover when we have our five punishable acts
we have the fifth act which is intentionally
transferring children from one group to another
it is obviously not physical destruction
or biological destruction, it is cultural destruction
You take a children of a group
you move them to another environment
where they are raised by families of another group
and they lose their cultural identity and
the group siezes to exist.
So if one were to just interpret the definition
in article 6 based on the words rather than
the drafting history of the convention
another conclusion might be reached
that would provide for a broader understanding
of the notion of genocide
that would include forms of
cultural genocide
and this becomes particularly important
when we are dealing with more extreme
forms of the destruction of a group
that falls short of physical extermination
One of the terms that has been used in recent years
is Ethnic Cleansing
You can drive a group out of its ancestral homeland
destroy its economy
disperse the group
and it will seize to exist
that's not physical destruction,
it's not biological destruction
but the end result is destruction
So we have these two options in
the terms of the interpretation of article 6
We don't have any significant interpretation
of the article 6 by the International Criminal Court
we just have one small decision on the issuance
of an arrest warrant by a pre-trial chamber
I wouldn't think that it would be a terribly authoritative
decision, although it is important and valuable to read
but we don't have a mature developed case law
from the International Criminal Court on what's in Article 6
but we do from other tribunals in recent years
in particular
the abhor tribunals from the former Yuguslavia and Rwanda
And also from the International court of justice
And these bodies have all
issued very very elaborate interpretations
of essentially the same text
of the article 6 of the Rome Statute
or the article 2 of the genocide convention
and they have, I think it is accurate to say
generally come to a conclusion to say that genocide
is confined to physical extermination
we could add biological but they did exclude
the cultural destruction of the group
that could evolve in the future
that could change but my own view
is that it is unlikely to take place
because this issue of cultural attacks on groups
that may lead to their destruction is very very
properly addressed under the label of crimes
against humanity.
And so there is not a need perhaps
in the earlier years, following the 1940s
until the recent decades there was great doubt
about whether crimes against humanity
can be committed in peace time
and thus in the past acts of persecution
and other types of acts that might threaten the
existence of the group without actually
physically exterminating the group
If they were committed in peace time
it wasn't obvious at all if they were
covered at the notion of crimes against humanity
that's no longer true
So crimes against humanity
adequately addresses the problem
we don't, therefore, there is no
great need to expand the definition of genocide
in order to fill this gap.
Let me turn to the next element in the definition
which are these words. "In whole or in part"
they were added I think back in the 1940s
to provide an answer to someone charged with genocide
for example if we take the case of the Nazi Genocide
of the European Jews, someone would argue that
Well I didn't mean to exterminate all the Jews
on planet Earth, I just meant to exterminate the ones
in Germany or the parts of Europe that were occupied by
the Nazi.
So this provides an adequate answer
so it can cover in whole or in part
In the more recent interpretation of that provision
the judges intended to add an adjective before the
part, they talk about 'substantial' part
Now there's still a lot of subjectivity in that
the great genocides, the big genocides of the 20th Centuries
The Armenians of 1915, The Jews of 1940s
and the Tutsi and Rwandian in 1994, have all involved
hundreds of thousands or even millions of people
But we do have a judgment of the international criminal tribunal
for the Yugoslavian more than one judgment
And this has been echoed in the case law of
international court of justice
that has recognized that destroying a group of
seven to eight thousand people
could constitute genocide
The size is not decisive
there is no threshold in terms of numbers
there is no threshold in percentage of the group
and of course, defining the groups
it is just like those Russian dolls
that you can open one up and there is another one inside
So when the International Criminal Tribunal for the former
Yugoslavia was looking at the massacre of the extermination
really, of the men of --- an enclave of a community in Bosnian ---
during the conflict in 1995
There was a question,
Were they part of the group of Muslims on the planet,
a group that perhaps has about a billion people?
Were they part of the Muslims in Europe?
of the Muslims in the former Yugoslavia?
of Muslims in Bosnia --?
Or Muslims within in that part of Bosnian ---?
So this is what all the debate is well before
the courts is to exactly how to apply those terms
There is another theory as well about the
notion of 'in part'
is that it could include a significant part
so instead of adding the adjective substantial
we add significant
but this a concept that I have never really wanted to
because it involves value judgments about the importance
of different types of people within a community
And I find that a difficult notion
I think it leads us to a kind of ---
that is I think unhappy
and so I personally don't encourage that approach
The courts have not
really although they pay kind of a lip service
toward acknowledging that it might be possible
we don't actually have any judgments for someone who has
been convicted because they attempted to destroy a
significant part rather than a substantial part of the group.
The next and this is the final part and it is
very essential to the definition of the Genocide
it is the list of the protected groups
National, ethnic, racial or religious groups
it's a rather narrow group
It certainly doesn't cover all groups
and it has led to debates about whether the
ultimate purpose of the definition of genocide is
to protect groups from extermination
or is to protect groups that are defined by nationality,
ethnicity, religion and race
I think the case law of the International Tribunal
says, tended to keep that definition narrow have
resisted for example attempts to add into the definition
Political groups
There was at the time when the Genocide Convention
was being drafted
there were very serious proposals that were debated
include within that enumeration political groups
By including political groups
it would have made definitions of genocide
rather more like the definition of crimes against humanity
which deals with a wide range of groups
It looks like in many ways in our
definition of discrimination in places like Article 2
of the Universal declaration of Human Rights
But I think that definition has been relatively confined
There were some early cases at the International Criminal Tribunal
for a longer that suggested perhaps that definition was really
meant to cover all permanent and stable groups
but I don't think that definition has had much of an echo
in the case law
In interpreting the groups
there have been two other approaches
on how to define those groups
because it is not straightforward
how to use the term national, ethnic, racial and religious groups
If you take the notion of racial groups for example
there is great resistance in the modern International Human Rights Law
even to the notion that such groups exist
And yet it seems like there would be something pervasive
about the idea of, because we reject the notion of the And yet it seems like there would be something pervasive
about the idea of, because we reject the notion of the
existence of racial groups that we would somehow
shrink or narrow the protection of genocide
from what it was in 1940s
when most people were not thorough
with the idea that racial groups existed.
I should say that if you look at the way the term was used
in the English language in the 1940s, people spoke about the
German Race, the English race and the Jewish Race
and so they used the term in how today we would speak about
national, ethnic or religious groups.
There have been some attempts by the courts
to identify these groups by objective criteria
looking at what it is that gives you the feature of
belonging to an ethnic group.
And the case law I think has now largely rejected
that approach in favour of a subjective one
based on the vision of the perpetrator
In other words if the perpetrator thinks that
you are a racial group and thinks that individual victims
are a part of the racial group
than we satisfy the requirements of the definition of Genocide.
And as I said that the case law has largely confirmed this.
The definition in article 6, ends with the words 'as such'
don't confuse this with the words 'such as' because
'such as' would suggest that the five acts of genocide that follow
in the five paragraphs to identify acts is an open enumeration
In other words, it is not exclusive, closed or limited to those
five acts, but that's not what it says
It says 'as such', and when we read the drafting history
to try and find what could possibly have been meant by
those enigmatic words
When sometimes the case, when treaties and international instruments
are being negotiated, and they simply couldn't agree
and so they put those in as a kind of a placeholder
for the judges to address them if they wanted to
It was a compromise, it was what they used to call
when the Rome Statute was being adopted, constructive ambiguity
what the debate was about,
whether genocide required an element of motive
In other words, whether it was not just an intent
to destroy a group
or whether it was an intent to destroy the group
because it was a national, ethnic, racial or religious group
And I think that the case law is very still now and
entirely not clear whether there is that element of motive in effect
when we discuss crimes against humanity and
we call it discriminatory intent and I guess by calling
it discriminatory intent instead of discriminatory motive
we further confuse things
All of this to say that there is still a great deal
room for interpretation and debate about this
definition of genocide
Let me conclude by saying that although the words were
adopted in 1948, between 1948 and the end of the 20th Century
there was a very very little legal interpretation of the
defination of genocide. In that defination of article 2 with the convention
and that was then pasted into the Rome Statute is Article 6
The development, the judicial development, the interpretive development
of the crime of genocide is all something that started
in the late 1990s and continued to present day
although probably in the recent years
it has tended to stabilize
and there is less dynamism in the interpretation of the definition of Genocide
Let me just conclude with one final point
The word genocide outside of the definition
probably means a lot of other things to people
in the non-legal context than it does to lawyers
Lawyers read that definition
we use it for prosecution, we use it in other areas
as well state responsibility for example
but we have a fairly precise legal definition of genocide
In the popular conscience, genocide is often viewed
as being some broader notion of atrocity In the popular conscience, genocide is often viewed
as being some broader notion of atrocity
and this makes it sometimes awkward or difficult for lawyers
who have to explain to victims of various atrocities
that their victimization is probably better described by
Crimes against humanity than by the term genocide
and often reactions to this are sometimes disappointment
and sometimes even anger
So its an interesting problem that we confront
outside the legal context but certainly in use of the word
Genocide.
I invite you to look at the other segments that I am
delivering with the punishable acts of genocide.