by Ralph Henham and Paul Behrens (eds.). Aldershot, UK and Burlington, VT: Ashgate, 2007. 283pp. Hardcover. $99.95/£55.00. ISBN: 9780754648987.
Reviewed by Dr. James Sloan, University of Glasgow, School of Law. Email: j.sloan [at] law.gla.ac.uk.
The word “genocide” connotes a level of wickedness associated with no other crime. It speaks to actions that are based not on financial gain, military strategy or reprisal, but on a hatred for another group so toxic that the protagonist’s objective is to eradicate that group from the face of the earth. It is the “crime of crimes;” those who commit it are viewed as “the worst of the worst.” In view of this, it is natural for victims and others to want to see serious crimes so characterized. However, the crime of genocide has a very specific legal meaning. The term genocide was coined by Ralph Lemkin in the context of the Holocaust and was codified into international law with the Genocide Convention in 1948. In defining the word genocide, states were circumspect, providing several elements that must be met before the crime could be found to exist. It was not enough that the behavior being examined was criminal or that it resulted in death – even death on a large scale. The Convention definition imposed particular requirements relating to the nature of the criminal conduct, the nature of individuals against whom the conduct was perpetrated and the nature of the intention of the perpetrators. This narrow definition of genocide was adopted by the Security Council in establishing the statutes of the two ad hoc tribunals – the International Criminal Tribunal for the former Yugoslavia (ITCY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994 respectively – and by the states drafting the Rome Statute of the International Criminal Court (ICC) in 1998.
In THE CRIMINAL LAW OF GENOCIDE: INTERNATIONAL, COMPARATIVE AND CONTEXTUAL ASPECTS, editors Ralph Henham and Paul Behrens offer a collection of 21 essays on genocide (including one by each of the editors), most of which were presented at a 2005 conference on genocide. The editors advise us that the contributions have been “carefully revised and edited to present a topical work which fulfils high standards of academic quality.” And, for the most part, they are right. The range of topics is broad and features the discussion of atrocities widely considered to be genocide (some formally adjudged as such, some not), including the treatment of the Armenians by the Ottoman Empire, the treatment of the Jews by the Nazis and, more recently, the atrocities in Cambodia, Srebrenica, Rwanda and Darfur. The reference in the book’s title to the criminal law of genocide is generally accurate, though the vast range of topics covered frequently strays into historical or political areas. A main theme which emerges in many of the contributions is [*445] the difficulty of applying genocide’s specific legal definition with consistency, in particular in view of the political pressures associated with international criminal justice. Like other words with particular meanings in international law – such as “war” or “refugee” – the word genocide has been co-opted by politicians, the media and the wider public, who frequently consider the legal elements of the definition to be old-fashioned or overly legal.
The first two contributions in the book indicate the importance of the question of whether the crimes in Armenia in the early 20th century are characterized as genocide. In the first chapter, Raffi Sarkissian – who is described as the Chairman of “a single-issue pressure group” devoted to recognition of the Armenian Genocide – chronicles the refusal of the Turkish government and Turkish groups to characterize the atrocities against the Armenians as genocide. While he is certainly single-minded in his discussion of the events, he frequently neglects to provide sources for his (often controversial) statements. For example, in his second paragraph he quotes the Turkish Minister of the Interior of the day as stating: “all of the Armenians living in Turkey are to be destroyed and annihilated . . . Without taking into consideration the fact that they are women and children and disabled, their very existence will be ended, regardless of how terrible the means of the destruction may be, and without being moved by feeling of compassion.” A truly bone-chilling statement; however, given that no source is provided, one is left wondering how Sarkissian – as well as his readers – can know that the quote is accurate. None of which is to deny Sarkissian’s thesis that a genocide took place, but given his intention to expose the exaggerations, half-truths and outright falsehoods of the Turkish authorities, surely he must be expected to adhere to rigorous standards of scholarship. This, in part, is the point made by the next contributor, Sadi Cayci, a retired member of the Turkish Armed Forces, who calls for a treatment of the “Armenian massacres” from a critical perspective.
Given the level of opprobrium associated with genocide, it is essential that any determination of whether or not it occurred must be done with great care. When judges of the ICTY, the ICTR or the ICC are asked to determine if the actions of an accused amount to genocide (or a related offense such as conspiracy, attempt, and the like), it is their job to apply the law as it stands. They ought not to concern themselves with how the general public might define the crime or, indeed, how the judges themselves would like to see it defined. While opinions may differ as to whether activist judges at the national level who overrule national legislatures may, in some instances, be a good thing, it may not be credibly argued that activism is ever acceptable in the case of defining a crime. To punish an accused for conduct which was not illegal at the time of the crime would be a violation of the fundamental (and non-derrogable) human rights norm of nullen crimen sine lege – as well as any sensible notion of fairness. However, what emerges from several of the contributions in the collection is a recognition of the tendency on the part of judges of the two ad hoc tribunals to attempt to categorize crimes as genocide (or crimes linked thereto) despite the definitions of [*446] genocide in the Statutes of the two tribunals – and in the Genocide Convention on which they are based – indicating otherwise. The judges of the ad hoc tribunals tend to do this in one of two ways. Either they offer up a creative interpretation of the Genocide Convention’s definition (frequently based on a clumsy and selective reading of the travaux préparatoires), or they rely on the accused being bound by customary international law which, they argue, has progressed and developed beyond treaty law.
In a valuable chapter, noted genocide legal scholar William Schabas relies on the “Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur” (the Commission of Inquiry) and its controversial finding that genocide had not been committed by the Sudanese government in the Darfur region, as a basis to re-examine some of the case law on genocide of the ICTY. Noting the Commission of Inquiry’s willingness to ignore certain aspect of the JELISIC case, Schabas considers the approach of the Trial Chamber and the Appeals Chamber in that case in a politically dispassionate, highly legal way. Regrettably, as he illustrates, some of the conclusions of the ICTY chambers make it less than clear that their decisions have always been politically dispassionate and legally sound. For example, he cites the selective use of travaux préparatoires and a willingness of the Appeals Chamber to simply set out the law without providing convincing reasoning in certain cases. A chapter by Larissa van den Herik continues with the theme, outlining the schism between the “legal” and “social” concept of genocide. Like Schabas, she is compelled to point out what is frequently shoddy reasoning on the part of the tribunals, apparently arising out of a desire to make the charge of genocide stick. She notes that the legal definition of genocide is a strict one and applies to four specific groups only: national, ethnical, racial or religious groups. This leads her to ask: “Why is mass murder on [sic] these groups genocide and on [sic] other groups not?” As she makes clear, the answer – politically unpalatable though it may be – is simple: because states, concerned with their narrow interests, chose to make it so. In a similar vein, Michael Karnavas highlights the desire of the judges of the ad hoc tribunals to find a crime of “complicity in genocide.” In a careful study of the jurisprudence, he outlines the chipping away of the special intent requirement, either though judicial reasoning which offers innovative – and frequently contradictory – opinions of the meaning of the statutes or, in the case of a dissent opinion in KRSTIC, through the reliance on a rule of customary international law for which very limited support was provided.
No study of genocide would be complete without consideration of the role of the international community to prevent it. Roméo Dallaire and Kishan Manocha discuss the lack of political will on the part of France and the US – and to a lesser extent the UK – to take steps to limit or prevent the genocide in Rwanda. Given Dallaire’s role as the United Nations Assistance Mission in Rwanda’s Force Commander during the tragic events that unfolded there in 1994, it is hardly surprising that the tone of the piece is at times emotional. Even if the case is sometimes over-argued (“All that [*447] [Rwanda] had was a surplus of people and, in [the view of France, the US and the UK], this was clearly a most dispensable commodity.”), the provocative discussion is valuable and has many echoes in relation to the reaction of the international community to the atrocities currently taking place in Darfur. Also valuable, was a discussion by Zachary Kaufman of the circumstances surrounding the US’s decision not to veto the Security Council’s referral of the Darfur situation to the ICC.
The chapters cover a remarkable variety of areas, touching upon difficult – and in some cases quite fascinating – issues addressed by or likely to be addressed by international judicial bodies. A chapter by Fiona de Londras argues that the prosecutors at the ad hoc tribunals are unwilling to prioritize sexual violence, including genocide-related sexual violence. Another chapter by Paul Behrens considers the variable ways the ad hoc tribunals have dealt with inconsistencies in the behavior of individuals accused of genocide, including, in some cases, a tendency to simply ignore it. Tonja Salomon’s chapter provides a helpful overview of the issues and jurisprudence in relation to the incitement of genocide through hate speech in the context of the Rwanda Genocide. Paul Ng’arua, a Trial Attorney at the ICTR, writes (in his private capacity) about the difficulties surrounding that tribunal’s compliance with the Security Council’s Completion Strategy, in particular the problems of the Office of the Prosecutor (OTP) relating to the specificity and amendment of indictments. Juan Méndez, UN Special Adviser on the Prevention of Genocide, discusses the functions of his office – though his message appears to be one of “do not expect too much of us.” Shivon Byamukama and John Huntley co-write a chapter about criminal justice at the national level in Rwanda (Gacaca). In addition, each of the last two chapters in the book, written by the book’s co-editor Ralph Henham and Shahram Dana, respectively, provides a careful and scholarly legal discussion of the difficult and controversial sentencing procedures of the ad hoc tribunals in the context of genocide.
Of course, the primary international legal body empowered to deal with genocide, the ICC, has, to date, only had limited jurisprudence and none directly touching on genocide. Nevertheless, some valuable analysis is offered about how the ICC may deal with genocide. For example, writing in his personal capacity, Tuiloma Neroni Slade, the Presiding Judge of Pre-Trial Chapter II of the ICC from 2003-2006, examines how the crime of genocide has been incorporated into the jurisdiction of the ICC. While, as he notes “it is too soon to tell how the Judges of the International Criminal Court might approach any of these issues,” his thoughts are nonetheless valuable. Another discussion, which is necessarily speculative in view of the ICC’s relatively recent creation, is Chris Gallavin’s thesis that a “hierarchy of referrals” exists, depending on the “triggering” mechanism that brought a matter before the ICC. He speculates that cases coming to the Court through the Prosecutor’s much-fought-for proprio motu authority will inevitably be sidelined, as such referrals provide “the OTP with a weak mandate upon which to investigate,” and that third party state [*448] referrals will, likewise, “fail to fulfil the pragmatic requirements of the Prosecutor who must conduct investigations with minimal resources.” To him, it is “[o]nly in the case of State self-referrals or [Security Council] referrals [that] the Prosecutor [will] be assured of the necessary state cooperation.” An interesting idea, but again, it is too soon to judge its accuracy. Similarly, Alex Bates’ contribution on the likely effectiveness of Cambodia’s Extraordinary Chamber, while helpful, has a “wait and see” quality, given that that Chamber has only begun to function recently.
This book represents a diverse and topical collection of essays on genocide, of value to the student of the law, as well as to students of politics. Although the ad hoc tribunals have attempted at times to indicate that there is no hierarchy of crimes under their jurisdiction, genocide remains the gold standard for evil behavior. As such, many groups will, understandably, feel outraged if the term is not used in relation to the crimes of which they were victim. One of the key lessons that emerges from the book, however, is that, unless and until states redefine genocide more broadly, judges of international criminal bodies must resist political pressure to do so themselves. From a public policy standpoint, such judge-made changes in the law motivated by hard cases are undesirable; from an individual human rights standpoint, they are unconscionable.
THE PROSECUTOR v. JELISIC, Case No. IT-95-10-T, Judgement, ICTY TC, 14 December 1999.
THE PROSECUTOR v. JELISIC, Case No. IT-95-10-A, Judgement, ICTY AC, 5 July 2001.
PROSECUTOR v. RADISLAV KRSTIĆ, Case No. IT-98-33-A, Judgement, ICTY Appeals Chamber, April 19, 2004.
© Copyright 2008 by the author, James Sloan.