Thursday, February 7, 2008

A New Genocide Statute: Above & Beyond

Genocide is a modern word for an ancient crime. The term “genocide” was originally coined by Polish jurist Raphael Lemkin (right), who, after learning of the Armenian massacre of World War I, campaigned tirelessly for the drafting of a multilateral treaty prohibiting the crime. Despite his efforts, it took the events of World War II to compel the international community to finally bring Lemkin’s project to fruition. The Charters of the Nuremberg and Tokyo Tribunals did not include genocide as an enumerated crime; instead, they provided for the prosecution of war crimes, crimes against humanity, and crimes against the peace. However, the Nuremberg indictment did charge the Nazi defendants with committing genocide, which it defined as

the extermination of racial and national groups … in certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, and Gypsies.

Further, the Judgment clearly addressed acts that would amount to genocide under the contemporary definition of the crime.
Following that Nuremberg Judgment in 1946, the United Nations General Assembly (below right) took up the matter of genocide and passed a Resolution (96(I)) confirming that genocide constitutes a crime under international law, the punishment of which is a matter of international concern. The unanimous Resolution also recommended that the United Nations draw up a draft convention on genocide to be submitted to the full General Assembly for signature and ratification. The Secretary-General began work on a draft Convention in 1947. This draft was passed to an ad hoc Committee of the Economic and Social Council (ECOSOC) and then to the United Nations General Assembly, which adopted the Convention on December 9, 1948. The Convention entered into force in January 1951 and, to date, it has been ratified by 133 States.
Throughout this drafting process, the provisions concerning the element of intent (mens rea), the enumerated protected groups, the inclusion of cultural genocide, and application of universal jurisdiction received the most intense debate. With respect to the latter feature, unlike other international criminal law (ICL) treaties, the Genocide Convention does not obligate state parties to exercise universal jurisdiction over acts of genocide. Instead, the treaty obligates state parties to assert jurisdiction over genocide committed on their territories pursuant to the classic territorial principle. The Convention also contemplates the existence of a permanent international tribunal, which was a mere twinkle in the eye of internationalists at the time the Genocide Convention was drafted. Specifically, the Genocide Convention at Article VI provides that:

Persons charged with genocide or any of the other acts enumerated in article III [conspiracy, incitement, attempt, or complicity to commit genocide] 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.

Notwithstanding the treaty's more limited jurisdictional regime, it is widely accepted that genocide is also subject to universal jurisdiction as a matter of permissive CIL, exemplified by the prosecution of Adolph Eichmann by Israel (right).
The United States signed the Genocide Convention on December 11, 1948, but did not ratify it until October 14, 1988. Although initially supportive of the treaty, the United States experienced a resurgence during the Cold War years of ideas that viewed international treaties as threats to American sovereignty. The American Bar Association (ABA) was one of the most outspoken opponents of ratification, arguing that human rights issues were “essentially a domestic matter” and were therefore not “properly the subject of negotiations with a foreign country.” Additionally, the ABA believed that ratification of the treaty would threaten the federal nature of the United States by establishing a crime of genocide under federal law, which, it argued, would undercut a traditional domain of state law.
After years of failed attempts to urge the Senate to ratify the treaty, the NGO community that comprised the umbrella Ad Hoc Committee on Human Rights and Genocide Treaties began to make progress. In 1984, President Ronald Reagan (left) became a champion of the cause, urging “early Senate action on genocide in order to assist [the United States’] efforts to expand human freedom and fight human rights abuses around the world.” By the time the treaty was finally ratified in 1988, Senator William Proxmire (D-Wisconsin) (below left), a major proponent of ratification and for whom the treaty legislation was named, had delivered over three thousand speeches on the Senate floor concerning the genocide treaty—one a day for nineteen years. As he signed the implementing legislation into law on November 4, 1988, President Reagan acknowledged the historical importance of the United States’ accession to the Genocide Convention when he said he was “delighted to fulfill the promise made by Harry Truman to all the people of the world—and especially the Jewish people.” (For this history, see William Korey's 1997 article, The United States and the Genocide Convention: Leading Advocate and Leading Obstacle.
Congress originally codified the prohibition against genocide in U.S. statutory law at 18 U.S.C. § 1091, which states that the crime of genocide has been committed when a person, “whether in time of peace or in time of war” and

with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—

(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group.…

The statute originally applied only to acts of genocide that occurred within the United States or to acts that were perpetrated by a U.S. national (pursuant to both the territorial and nationality principles of adjudicative jurisdiction). In December 2007, Congress, having earlier in the year heard testimony from, among others, IntLawGrrl Diane Orentlicher, expanded the statute. (Diane's October 2007 testimony to a House of Representatives subcommittee is here; she'd testified before a Senate subcommittee 'way back in February 2007. Our Opinio Juris colleague Kevin Jon Heller posted on this development here.)
By dint of the so-called Genocide Accountability Act of 2007, the proscription now covers situations in which the perpetrator
► is a permanent resident alien in the United States,
► is a stateless person, or
►is found, or brought into, the United States, even if the act occurs outside the United States.
This more fully implements the principle of universal jurisdiction. Perhaps ironically, Republican administrations have made the biggest strides in domesticating the international prohibition against genocide in U.S. law through ratification of the treaty and the enactment and then expansion of the domestic implementing legislation.
The United States has historically been reticent to utilize the principle of universal jurisdiction with respect to human rights crimes rather than terrorism, even with the statutory authorization (and arguably treaty obligation) to do so. The case against Liberian Chuckie Taylor presents a first effort, as earlier blogged here and here. It remains to be seen whether this amendment will make any difference in actual practice.

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