This page intentionally left blank GENOCIDE IN INTERNATIONAL LAW Second Edition The 1948 Genocide Convention has become 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 prevent the ‘crime of crimes’, have now been interpreted in important judgments by the International Court of Justice, the ad hoc Tribunals for the former Yugoslavia and Rwanda and various domestic courts. The second edition of this definitive work focuses on the judicial interpretation of the Convention, relying on debates in the International Law Commission, political statements in bodies like the General Assembly of the United Nations and the growing body of case law. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial coope- ration, such as extradition. The duty to prevent genocide and its relationship with the emerging doctrine of the ‘responsibility to protect’ are also explored. william a. schabas oc mria is Director of the Irish Centre for Human Rights and professor of human rights law at the National University of Ireland, Galway. The author of many books and journal articles on the subject of international human rights law, Professor Schabas has served as an international member of the Sierra Leone Truth and Reconciliation Commission (2002 to 2004). He is also a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Assistance in the Field of Human Rights, an Officer of the Order of Canada and a Member of the Royal Irish Academy. GENOCIDE IN INTERNATIONAL LAW The Crime of Crimes second edition WILLIAM A. SCHABAS OC MRIA National University of Ireland, Galway CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-88397-9 ISBN-13 978-0-521-71900-1 ISBN-13 978-0-511-51775-4 © William A. Schabas 2009 2009 Information on this title: www.cambrid g e.or g /9780521883979 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org p a p erback eBook ( NetLibrar y) hardback To my parents, Ann and Ezra CONTENTS Preface to the first edition page ix Preface to the second edition xiii Acknowledgments xv List of abbreviations xvii Introduction 1 1 Origins of the legal prohibition of genocide 17 2 Drafting of the Convention and subsequent normative developments 59 3 Groups protected by the Convention 117 4 The physical element or actus reus of genocide 172 5 The mental element or mens rea of genocide 241 6 ‘Other acts’ of genocide 307 7 Defences to genocide 367 8 Prosecution of genocide by international and domestic tribunals 400 9 State responsibility and the role of the International Court of Justice 491 10 Prevention of genocide 520 11 Treaty law questions and the Convention 593 Conclusions 641 Appendix: The three principal drafts of the Convention 655 Bibliography 672 Index 711 vii [...]... Journal of International Law, p 504 at pp 538–41 1 2 genocide in international law The inertia of the legal systems where the crimes actually occurred did little to inspire other jurisdictions to intervene, although they had begun to do so with respect to certain other international crimes such as piracy and the trafficking in persons, where the offenders were by and large individual villains rather... abbreviations International Law in Domestic Courts International Legal Materials International Law Reports Trial of the Major War Criminals before the International Military Tribunal Judicial Committee of the Privy Council Journal de droit international Journal of International Criminal Justice King’s Bench Lawyer’s Edition League of Nations Treaty Series Law Reports of the Commonwealth Law Reports of the Trials... Commission of Inquiry’s Findings on Genocide , (2005) 18 Leiden Journal of International Law, p 871; Genocide and the International Court of Justice: Finally, a Duty to Prevent the Crime of Crimes , (2007) 2:2 Genocide Studies and Prevention, p 101; Genocide Trials and Gacaca Courts’, (2005) 3 Journal of International Criminal Justice, p 879; Genocide, Crimes Against Humanity and Darfur: The Commission of. .. its nature, the Genocide Convention falls within the field of international criminal law. ’ introduction 7 matter jurisdiction of the two ad hoc tribunals charged with prosecuting violations of humanitarian law. 18 Genocide is routinely subsumed – erroneously – within the broad concept of ‘war crimes Nevertheless, the scope of international humanitarian law is confined to international and non -international. .. law , adding that the definition in the Rome Statute, which is identical to that of the Convention, is deemed a crime according to customary international law The legislation adds, in anticipation: ‘This does not limit or prejudice in any way the application of existing or developing rules of international law. ’16 The variations in national practice contribute to an understanding of the meaning of the. .. treaty embraced by the realm of public international law Within this general field, it draws on elements of international criminal law, international humanitarian law and international human rights law By defining an international crime, and spelling out obligations upon States parties in terms of prosecution and extradition, the Convention falls under the rubric of international criminal law. 17 Its claim... courts of other countries, for breaches of these very norms To the extent that such prosecution is even contemplated, States insist upon the strictest of conditions and the narrowest of definitions of the subject matter of the crimes themselves.3 The law of genocide is a paradigm for these developments in international human rights law As the prohibition of the ultimate threat to the existence 3 The duty... groups, as homicide is the denial of the right to live of individual human beings’ States ensure the protection of the right to life of individuals within their jurisdiction by such measures as the prohibition of murder in criminal law The repression of genocide proceeds somewhat differently, the crime being directed against the entire international community rather than the individual As noted by... learned of from friends or relatives of the victims At the time, none of us, including myself, had devoted much study if any to the complicated legal questions involved in the definition of genocide Indeed, our knowledge of the law of genocide rather faithfully reflected the neglect into which the norm had fallen within the human rights community Yet faced with convincing evidence of mass killings 1... with the onerous obligations that the treaty imposes, such as prosecution or extradition of individuals, including heads of State In its advisory opinion on reservations to the Genocide Convention, the International Court of Justice wrote that: The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law involving . questions involved in the definition of genocide. Indeed, our knowledge of the law of genocide rather faithfully reflected the neglect into which the norm. THE FIRST EDITION The legal questions involved in studying genocide draw on three areas of law: human rights law, international law and criminal law. These