Montreal Institute for Genocide and Human Rights Studies

Professional Training Program on the Prevention of Mass Atrocities

18-20 June 2014
Montral, Quebec, Canada


DAY 1 - 18 June 2014
10:00 - 11:30 Session 1:

International Law and the Genocide Convention
Bruce Broomhall
Genocide: an international legal perspective
What is the status of genocide in international
law?
What is the (most important) source of
applicable rules?
What are the legal consequences of a breach of
the rules?

Genocide: status
Who commits genocide?
States
Individuals
Legal persons? Corporations?
An internationally wrongful act of State
An act giving rise to individual criminal
responsability
The international crime of genocide I
What is a crime?
Something to be proven beyond a reasonable doubt
by a prosecutor, with penal consequences
What are the elements of a crime?
Material element or actus reus
Conduct (act or omission), circumstance, consequence
Moral element or mens rea
Intention, knowledge (other?)


The crime of genocide
and other international crimes
Distinguished primarily in light of their
international or contextual element:
Genocide
Crimes against humanity
War crimes
The crime of aggression
Torture
Enforced disappearance
Convention on the prevention and punishment of
the crime of genocide
Was the crime of genocide included in the Statute
of the International Military Tribunal that sat at
Nuremberg? How did it emerge following the
1946 Nuremberg Judgment?
Adopted by the United Nations General Assembly
in December 1948
Entered into force in January 1951
146 parties
What is the relationship between genocide and
crimes against humanity today?
Genocide Convention, art. I
The Contracting Parties ,
Having considered the declaration made by the General Assembly of the United
Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime
under international law, contrary to the spirit and aims of the United Nations and
condemned by the civilized world,
Recognizing that at all periods of history genocide has inflicted great losses on
humanity, and
Being convinced that, in order to liberate mankind from such an odious scourge,
international co-operation is required,
Hereby agree as hereinafter provided :
Article I
The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake
to prevent and to punish.
Genocide Convention, art. I (continued)
In the eyes of the International Court of Justice, in Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro), judgment (26 February 2007), this article prohibits States Parties from
committing genocide.

NB: Nicaragua c. tats-Unis (1986): The ICJ requires proof that the U.S. ordered
violations of the laws of war committed by the Contras. Beyond financing, furnishing
equipement, training and advice, it had to be shown that the U.S. had effective control over
the operations involving the violations. Otherwise, these violations cannot be attributed to
the U.S. in order to give rise to its international State responsability.
Article 8
Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.
- International Law Commission, Draft articles on the responsibility of States for internationally wrongful acts
(2001)
Genocide Convention, art. II
In the present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Genocide Convention, art. II (continued)
What is the contextual or international element of the
crime of genocide?
None on the material level of the actus reus
But see the Elements of Crimes annexed to the Rome Statute
of the International Criminal Court:
The conduct took place in the context of a manifest pattern of similar
conduct directed against that group or was conduct that could itself
effect such destruction
The defining contextual / international element of the
crime of genocide is that of the intent to destroy, in
whole or in part, that national, ethnical, racial or
religious group, as such.
Genocide Convention, art. II (cont. 2)
Special intent / dolus specialis in addition to that required for the
underlying crime
One of the enumerated groups only:
Akayesu definition of groups as stable and permanent, of which one
becomes a member often by birth and not by choice
Question: cultural genocide (included in the initial Expert Draft), the
extermination of political or social groups
Intent to destroy, not only e.g. to expel from a given territory
Jelisic high threshold; one can intend to expel by force and even
intentionally kill a number of people, but the specific intent to commit
genocide must still be proven
In whole or in part: intent (only) to destroy a substantial part:
Krstic murder of men of military age at Srebrenica; the intent to destroy a
group in part may be made out if the accused viewed the group as a distinct
entity. Here, the murders of the men took place at the same time as the
expulsion of the women, children and elderly people. Hence, the intent to
prevent the re-establishment of the community.



Genocide Convention, art. II (cont. 3)
Conduct et consequences the 5 enumerated acts:
Members of the group, without requiring a very high
number
Physical destruction is not required for e.g. transferring
children (a form of cultural genocide?)
Can the destruction of cultural monuments help establish
genocidal intent?
Akayesu inclusion of rape (et of other acts, such as
torture) in serious bodily or mental harm
Genocide as a crime of customary international law whose
definition has repeatedly been affirmed
Genocide Convention, art. III
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Genocide Convention, art. III (continued)
Article III enumerates certain inchoate offences, that is,
acts which remain criminal even though the offense to
which they are related remains incomplete: conspiracy,
direct and public incitement, attempt.

This establishes one link between criminal prosecution
and prevention.
Genocide Convention, art. IV-V
Article IV
Persons committing genocide or any of the other acts enumerated in
article III shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals.
Article V
The Contracting Parties undertake to enact, in accordance with their
respective Constitutions, the necessary legislation to give effect to
the provisions of the present Convention, and, in particular, to
provide effective penalties for persons guilty of genocide or any of
the other acts enumerated in article III.
Genocide Convention, art. VI
Article VI
Persons charged with genocide or any of the other acts enumerated
in article III shall be tried by a competent tribunal of the State in the
territory of which the act was committed, or by such international
penal tribunal as may have jurisdiction with respect to those
Contracting Parties which shall have accepted its jurisdiction.

What were the prospects for establishing a permanent
international criminal court in 1948?
What was the state of universal jurisdiction at the time?
Eichmann, 1961
Genocide Convention, art. VI (cont.)
Comparison:
International Convention for the Protection of All Persons from Enforced
Disappearance 2006
Article 9
1. Each State Party shall take the necessary measures to establish its competence to exercise
jurisdiction over the offence of enforced disappearance:
( a ) When the offence is committed in any territory under its jurisdiction or on board a ship or
aircraft registered in that State;
( b ) When the alleged offender is one of its nationals;
( c ) When the disappeared person is one of its nationals and the State Party considers it
appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its
competence to exercise jurisdiction over the offence of enforced disappearance when the
alleged offender is present in any territory under its jurisdiction, unless it extradites or
surrenders him or her to another State in accordance with its international obligations or
surrenders him or her to an international criminal tribunal whose jurisdiction it has
recognized.
3. This Convention does not exclude any additional criminal jurisdiction exercised in
accordance with national law.

Genocide Convention, art. VII
Article VII
Genocide and the other acts enumerated in article III shall not be
considered as political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant
extradition in accordance with their laws and treaties in force.
Genocide Convention, art. VIII
Article VIII
Any Contracting Party may call upon the competent organs of the
United Nations to take such action under the Charter of the United
Nations as they consider appropriate for the prevention and
suppression of acts of genocide or any of the other acts enumerated
in article III.
NB: The duty to prevent
See the general statement in art. 1. The ICJ, (Bosnia and
Herzegovina v. Serbia and Montenegro, judgment, 2007), affirmed
the existence of a duty to prevent separate and apart from the duty
to punish. This is a duty of diligence, of acting within ones means
in order to affect the conduct of those under ones control or
influence, including outside a given States own borders.

Genocide Convention, art. IX-X
Article IX
Disputes between the Contracting Parties relating to the
interpretation, application or fulfilment of the present Convention,
including those relating to the responsibility of a State for genocide
or for any of the other acts enumerated in article III, shall be
submitted to the International Court of Justice at the request of any
of the parties to the dispute.
Article X
The present Convention, of which the Chinese, English, French,
Russian and Spanish texts are equally authentic, shall bear the date
of 9 December 1948.
Genocide Convention, art. XI
Article XI
The present Convention shall be open until 31 December 1949 for
signature on behalf of any Member of the United Nations and of
any non-member State to which an invitation to sign has been
addressed by the General Assembly.
The present Convention shall be ratified, and the instruments of
ratification shall be deposited with the Secretary-General of the
United Nations.
After 1 January 1950, the present Convention may be acceded to on
behalf of any Member of the United Nations and of any non-
member State which has received an invitation as aforesaid.
Instruments of accession shall be deposited with the Secretary-
General of the United Nations.
Genocide Convention, art. XII
Article XII
Any Contracting Party may at any time, by notification addressed to
the Secretary-General of the United Nations, extend the application
of the present Convention to all or any of the territories for the
conduct of whose foreign relations that Contracting Party is
responsible.
Genocide Convention, art. XIII
Article XIII
On the day when the first twenty instruments of ratification or
accession have been deposited, the Secretary-General shall draw up
a procs-verbal and transmit a copy thereof to each Member of the
United Nations and to each of the non-member States contemplated
in article XI.
The present Convention shall come into force on the ninetieth day
following the date of deposit of the twentieth instrument of
ratification or accession.
Any ratification or accession effected subsequent to the latter date
shall become effective on the ninetieth day following the deposit of
the instrument of ratification or accession.
Genocide Convention, art. XIV-XV
Article XIV
The present Convention shall remain in effect for a period of ten
years as from the date of its coming into force.
It shall thereafter remain in force for successive periods of five
years for such Contracting Parties as have not denounced it at least
six months before the expiration of the current period.
Denunciation shall be effected by a written notification addressed to
the Secretary-General of the United Nations.
Article XV
If, as a result of denunciations, the number of Parties to the present
Convention should become less than sixteen, the Convention shall
cease to be in force as from the date on which the last of these
denunciations shall become effective.
Genocide Convention, art. XVI
Article XVI
A request for the revision of the present Convention may be made at
any time by any Contracting Party by means of a notification in
writing addressed to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to be
taken in respect of such request.
Genocide Convention, art. XVII
Article XVII
The Secretary-General of the United Nations shall notify all
Members of the United Nations and the non-member States
contemplated in article XI of the following:
(a) Signatures, ratifications and accessions received in accordance
with article XI;
(b) Notifications received in accordance with article XII;
(c) The date upon which the present Convention comes into force in
accordance with article XIII;
(d) Denunciations received in accordance with article XIV;
(e) The abrogation of the Convention in accordance with article
XV;
(f) Notifications received in accordance with article XVI.
Genocide Convention, art. XVII
Article XVIII
The original of the present Convention shall be deposited in the
archives of the United Nations.
A certified copy of the Convention shall be transmitted to each
Member of the United Nations and to each of the non-member
States contemplated in article XI.
Article XIX
The present Convention shall be registered by the Secretary-General
of the United Nations on the date of its coming into force.
Convention on the prevention and punishment of
the crime of genocide
Positive aspects : unequivocal condemnation
of this crime, concise definition, State duties to
prevent, to legislate, to punish and to
cooperate, application in times of both peace
and war, recognition of ICJ jurisdiction, wide
adhesion (cf. the status of crimes against
humanity in 1948 and after)
Negative aspects : limited scope of criminal
jurisdiction, weak mechanisms for ensuring
application (no monitoring committee,
assembly of States Parties, etc.)