By Dr. Faustin Z. Ntoubandi
(Faculty of Law, University of Toronto)
Introduction
The obligation to prevent and to punish as formulated in Genocide Convention Article
1 (See Note III) calls for specific actions from State Parties. The nature of such
actions can be generally deduced from other substantive provisions of the
Convention, when read together with Article 1. The most notable of such provisions
are Articles 4, 5, 6, 7, and 8, which inform on the nature of the preventive and
repressive measures that must be taken to tackle genocide.
The minimum requirements of Article 5
Article 5 of the Genocide Convention makes it clear that State Parties must, at a
minimum, adopt national laws that would translate the prescriptions of the
Convention into their domestic legal system. It provides in this regard that they must
enact:
the necessary legislation to give effect to the provision 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.
Scope of the obligation to legislate under Article 5
The International Court of Justice (ICJ) (in its Judgment of 26 February, 2007 on the
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, § 162) observed that the undertaking made by State Parties, under Article 5
of the Genocide Convention, to adopt national laws to give effect to the Convention is
binding upon them. The scope and extent of such an undertaking or obligation, which
must necessarily be derived from the other provisions of the Convention, must
include, therefore, the following legislative duties: to prevent and punish genocide as
provided in Article I; to ascribe a definition to genocide following the examples set in
Articles 2 and 3 of the Convention; to make punishable all perpetrators without any
distinction based on status in the sense of Article 4; to make trial possible before the
courts of the territorial State or before an international tribunal as required under
Article 6; to exclude genocide from the list of political offences for the purposes of
extradition as requested by Article 7. Other duties, which may be included in this list
actions, are not necessarily legislative in nature; they consist mainly in the obligation
to call upon a United Nations’ organ for action as provided under Article 8, and in
submitting a dispute to the ICJ in conformity with Article 9 of the Convention.
Content and nature of national legislation on genocide
Pursuant to Article 5, national legislation on genocide must address, at a minimum,
the following issues: definition and penalization of genocide, establishment of
jurisdiction over the crime of genocide, and adoption of criminal procedures for trying
of genocide perpetrators.
Definition and Penalization of genocide
State Parties are called upon to incorporate into their domestic legal system a
definition of genocide that would reflect closely the contours of the definition
contained in Articles 2 and 3 of the Genocide Convention.
Many State Parties have enacted domestic legislation whose definitions of genocide
reflect, more or less, the definition adopted in the Genocide Convention. In Canada
for instance, genocide was incorporated into the Canadian domestic legal system by
the Canadian’s Crimes against Humanity and War Crimes Act, adopted on 24 June
2000. This piece of legislation adopts a definition of genocide that considerably
broadens the ambit of protection to include any ‘identifiable group of persons’ (one
should note that the Genocide Convention protects four specific groups only: namely,
a national, ethnical, racial or religious group). According to Section 4 (3) of this Act:
Genocide means an act or omission committed with intent to destroy, in whole or in part, an
identifiable group of persons, as such, that, at the time and in the place of its commission, it
constitutes genocide according to customary international law or conventional international
law or by virtue of its being criminal according to the general principles of law recognized
by the community of nations, whether or not it constitutes a contravention of the law in
force at the time and in the place of its commission.
The definitional line adopted above is interesting in at least two respects: firstly, it is
based on international standards, with the implication that any new development that
may occur at the international law level with respect to genocide would automatically
be endorsed by the Canadian domestic legal system; secondly, the fact that the
Canadian Act does not designate specific groups makes it easier not only to protect
national, ethnical, racial or religious groups, but also to extend its protection to cover
any other group of peoples whose existence may come under threat.
In addition, when penalizing genocide, State Parties are obliged to elevate genocide to
the category of offences under international law, as required by article 1 of the
Convention. The idea behind this requirement is to place emphasis on the particularly
heinous nature of genocide in order to differentiate it from ordinary crimes. Failing
such distinction, genocide would simply be considered as an ordinary offence, which
does not justify the extended jurisdictional reach that usually attaches to international
crimes.
Jurisdiction and procedural requirements over genocide
Moreover, Article 5 may be interpreted as requiring national legislation to include a
provision that incorporates the obligation to lift head of state immunity for genocide
perpetrators. Genocide Convention Article 4 is unambiguous in this respect. This
Article calls upon State Parties to amend their domestic laws in order to remove any
immunity that may accrue to certain State officials. Such a move has at least two
intended purposes: firstly, to enable national tribunals to institute proceedings against
State officials who are suspected of genocide (or any other international crime);
secondly, to enable national authorities to execute any order of arrest and surrender
issued by international tribunals (such as the International Criminal Court) against the
said officials. In fine, Article 4 lifts the protection which applicable rules of national
immunities usually grant to monarchs, heads of States and governments, ministers of
foreign affairs and diplomats, in order to shield them from criminal prosecutions.
Article 27 (2) of the International Criminal Court Statute is even more explicit when it
states that
Immunities or special procedural rules which may attach to the official capacity of a person,
whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person.
The most notable case to date, which explicitly reiterates and strengthen the limiting
effect of G
enocide Article 4 (and of ICC Statute Article 27 (2)) on the customary
regime on immunity, is the indictment by the ICC of the incumbent Head of State of
Sudan, Omar Al Bashir, on counts of genocide committed against certain South
Sudanese ethnic groups during recent armed conflicts between North and South
Sudan.
Furthermore, Article 5 obliges State Parties, in accord with Article 7 of the Genocide
Convention, to enter into extradition agreements, and to adopt national laws, that
would facilitate the extradition of genocide offenders for trial in countries where the
crime was committed. It may also be understood as obliging State Parties to take the
necessary measures to facilitate the transfer or surrender of the alleged genocide
perpetrator to the international criminal tribunal for trial.
Finally, Article 5 requires States to provide effective penalties for persons found
guilty of genocide. Like many other international criminal law instruments, the
Genocide Convention is silent on what would constitute ‘effective’ penalty. In
practice, this omission has resulted in the adoption of national laws prescribing a
variety of penalties for the same criminal conduct. Such penalties usually range from
periods of imprisonment or life imprisonment, to the death penalty. Nevertheless,
given the growing international objection to the latter form of punishment for serious
international crimes, the imposition of life imprisonment as the maximum allowable
penalty for genocide has become the trend in the practice of modern international
criminal tribunals (viz. the ad hoc International Criminal Tribunals for Rwanda and
the former Yugoslavia, and the International Criminal Court).
State’s failure to fulfill its conventional obligations
What happens if a State Party to the Genocide Convention is unable to establish the
implementation mechanisms provided by Articles 4 to 7?
When a State is unable to prevent and repress acts of genocide through the
mechanisms prescribed by Genocide Convention Articles 4-7, it can seek assistance
from the United Nations to respond to such acts. This possibility is envisaged under
Genocide Convention Article 8, which requires State Parties to call upon the
competent organ of the United Nations to take every action they consider appropriate
to prevent and suppress acts of genocide. In the past two decades, the Security
Council of the United Nations has adopted a number of resolutions either to prevent
and suppress the commission of genocide (Security Council Resolution 1291 of 2000,
Paragraph 15 of which calls on all the parties to the conflict in the Democratic
Republic of the Congo to respect the Genocide Convention), or to repress and punish
it (Security Council Resolution 827 of 1993 which created the International Criminal
Tribunal for the former Yugoslavia to prosecute and punish persons who have
committed genocide in former Yugoslavia; Security Council Resolution 955 of 1994
which established the International Criminal Tribunal for Rwanda to prosecute and
punish persons responsible for the Rwandan genocide; and SC Resolution 1593 of
2005 which referred the situation in Darfur, Sudan to the International Criminal Court
for prosecution).
National criminal jurisdiction over genocide
Once State Parties have incorporated the Genocide Convention into their national
legal system, the next logical step is to effectively enforce such legislation. As
elaborated in Subsection 2.2 of Note III, Article 6 of the Genocide Convention
establishes the jurisdictional basis for the prosecution of the crime of genocide. It
recognizes two forms of jurisdiction: domestic territorial jurisdiction and international
jurisdiction.
Territorial jurisdiction
This form of jurisdiction refers to the determination of the place where a particular
crime was committed, and of the State which is legally entitled to prosecute the
perpetrators of such crime. Article 6 explicitly imposes on the territorial state (i.e. the
State in which territory the crime occurred) an obligation to try genocide perpetrators.
Although many countries have adopted national legislation that establish the
territoriality principle as the basis of their jurisdiction over genocide, there have been
very few cases of genocide trial before national tribunals on the basis of this principle.
One of the reasons being that genocide is generally committed with the complicity of
the State itself. Therefore, prosecutions usually take place only with the change of
regime as it has been observed in many instances of prosecution by territorial states.
There exist a few instances of prosecutions based on territorial jurisdiction (i.e.
genocide cases that were tried by the state on the territory of which the crimes were
committed). In 1979, Cambodian courts tried the Khmer Rouge leaders Pol Pot and
Ieng Sary for genocide, and sentenced them to death. In the absence of an enabling
national legislation to that effect, prosecution was made possible by a special decree,
which relied on the Genocide Convention (to which Cambodia is Party) to establish a
special court with jurisdiction over genocide.
During the same year, Francisco Macias Nguema, the former president of Equatorial
Guinea and ten of his collaborators were prosecuted on the charges of genocide and
murder. Although Equatorial Guinea had not ratified the Genocide Convention, it
nevertheless established a Special Military Court to apply the Genocide Convention.
Most genocide cases were prosecuted by Rwanda, which is also Party to the Genocide
Convention. Although this country had not translated the Genocide Convention into
its domestic penal system, it nevertheless decided to prosecute nearly 100,000 people
who were held in pre-trial detention following the mass killings perpetrated against
the Tutsis and moderate Hutus in 1994. To make prosecutions possible, the Rwandan
National Assembly passed Organic Law No. 08/96 of 30 August 1996 on the
Organization of Prosecutions for Offences constituting the Crime of Genocide or
Crimes Against Humanity Committed Since October 1, 1990, which extended the
jurisdiction of penal courts to include four new categories of crimes. On 26 January
2001, Organic Law No. 40/2000 instituted traditional courts, generally known as
gacaca, in order to speed up the trials started in 1996. Such courts have jurisdiction
over second category of génocidaires and their accomplices, to the exclusion of the
first category of perpetrators, which consists of planners, organizers, supervisors, etc.
When a State cannot exercise its jurisdiction on the basis of territoriality, it may still
rely on the principle of universal jurisdiction to try cases of genocide committed
abroad against foreigners. A number of States have recently grounded their
jurisdiction on this principle in order to prosecute genocide committed in foreign
countries. For example in 1994, Austria filed a case against Dusko Cvjetkovic, a
Bosnian Serb suspected of genocide who had sought asylum in Austria. The alleged
criminal lodged an appeal before the Oberster Gerichtshof, the Austrian Supreme
Court, on the ground that Austrian courts lacked jurisdiction to prosecute him. In a
judgment rendered on 13 July 1994, the Supreme Court ruled that Article 6 of the
Genocide Convention tacitly assumed that the competent prosecuting institution was a
functioning criminal justice system in the state where the crime was committed or a
functio
ning international criminal tribunal. Since such institutions did not exist at that
time, the Court held that Austrian courts could exercise jurisdiction against the
accused. Likewise, on 26 September 1997, the Oberlandesgericht, the Higher
Regional Court of Düsseldorf in Germany, tried and convicted Nicolai Jorgic, a
Bosnian and Herzegovina national, of genocide committed against the Bosnian
Muslims in former Yugoslavia. This Court held that Article 6 of the Genocide
Convention does not exclude the jurisdiction of German courts over acts of genocide
committed outside Germany by a foreigner against other foreigners. Moreover, on 29
November 1999, the Higher Regional Court of Düsseldorf prosecuted and sentenced
Maksin Sokolovic to nine years imprisonment for aiding and abetting the crime of
genocide committed in relation to the conflict in former Yugoslavia. The accused
challenged the jurisdiction of the German Court to try him. On 21 February 2001, the
Bundesgerichtshof, the German Federal Court, rejected the appeal arguing that it was
its opinion that no link with Germany was necessary in order to exercise universal
jurisdiction.
International jurisdiction
This form of jurisdiction exists whenever an international tribunal is established to
prosecute an international offence. Article 6 of the Genocide Convention makes this
alternative possible when the courts of the territorial State are unable or unwilling to
discharge their duty to try genocide perpetrators. The first international tribunal
established since the adoption of the Genocide Convention was the ad hoc
International Criminal Tribunal for the former Yugoslavia (ICTY). The Security
Council of the United Nations set up this tribunal on 15 May 1993, to address cases of
war crimes, crimes against humanity and genocide committed during the armed
conflict that took place in the territory of the former Yugoslavia in the 1990s. In 1994,
the Security Council of the United Nations established a second tribunal, the ad hoc
International Criminal Tribunal for Rwanda (ICTR) t was established, to hear cases of
genocide committed in the territory of Rwanda against the Tutsis and part of the Hutu
populations in 1994. These two tribunals were set up by the Security Council of the
United Nations, acting under Chapter VII of the United Nations Charter, as an
exceptional measure to restore international peace and security in the regions affected.
Their mandate was very narrow and was limited geographically and territorially to the
specific cases of former Yugoslavia and Rwanda.
Subsequent ad hoc tribunals that were established with jurisdiction over genocide
include the East Timor Special Panels, and the Extraordinary Chambers in the Courts
of Cambodia. These courts are generally known as ‘mixed’, ‘hybrid’ or
‘internationalized’ tribunals in that they apply both international and domestic laws.
The most important international penal tribunal with jurisdiction over genocide is the
permanent International Criminal Court (ICC) the Statute of which was adopted by
treaty in 1998. Articles 5 and 6 of this document provide for the ICC jurisdiction over
genocide. 18 cases have thus far been brought before the ICC, most of which are
cases of prosecution for crimes against humanity and war crimes. Only one case, The
Prosecutor v. Omar Hassan Ahmad Al Bashir, deals with genocide. In this case, the
accused, who is the incumbent President of the Republic of Sudan, is being
prosecuted for genocide committed against the Fur, Masalit and Zaghawa ethnic
groups of Sudan. He is accused on three counts of genocide; namely, genocide by
killing (prohibited under ICC Statute Article 6(a) and Genocide Convention Article
2(a)), genocide by causing serious bodily and mental harm (outlawed by ICC Statute
Article 6 (b), and Genocide Convention Article 2(b)), and genocide by deliberately
inflicting on each target group condition of life calculated to bring about the group’s
physical destruction (penalized by ICC Statute Article 6(c) and Genocide Convention
Article 2(c)).
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