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Home International Criminal Law Archive for category "Genocide" (Page 5)

State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 12, 2012        Author: 
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Vahagn Avedian is a PhD candidate in the Department of History, Lund University and Chief Editor of Armenica.org. This post summarises his article which was published in (2012) 23 EJIL 797-820.

The Republic of Turkey’s denial of the Armenian genocide has evolved, abandoning the simple denial of the ever growing facts. The sophistication includes revisionism, reinterpretation of the UN Genocide Convention, but also pleading the discontinuity between the Ottoman Empire and present-day Turkey. This last argument is quite interesting due to its paradoxical nature: if there is a discontinuity, how come Turkey, unlike Germany, is ardently defending its otherwise flawed predecessor? West Germany chose to reinstate its international prestige by condemning the wrongdoings of Nazi Germany and compensating the victims. While condemning the crimes, East Germany refused to accept responsibility to compensate, referring to the discontinuity between the two states. Turkey has chosen to ardently refute it all together. This article aims to elucidate this aspect of the Turkish denial as a deliberate means to evade the issue of compensation. Furthermore, by failing to stop the WWI era massacres and confiscations (which aimed to create a ‘Turkey for Turks’), but more importantly, by continuing the same internationally wrongful acts committed against the Armenian population and other minorities, Turkey made itself responsible for not only its own actions, but also for those of its predecessor, the Young Turk Government. In my article, I show this by applying the norms of existing international law in regard to state identity, continuity, and responsibility on the historical data at hand.

Before we continue, it must be emphasized that I do not limit my analysis to the definition in the UN Genocide Convention and its legal restraints. Instead, I examine the issues from the perspective of internationally wrongful acts more generally.

Turkey as the Continuation of the Ottoman Empire

A first logical step would be to establish the identity of the two Turkish states and possible continuity. Dividing the determining factors into ‘objective’ and ‘subjective’ categories, K. G. Bühler asserts that it is not merely ‘objective’ factors such as substantial part of territory, population, and armed forces, that bear upon state identity and continuity, but ‘subjective’ factors, such as the successor’s claim to continuity and its self-conception, also do matter [State Succession and Membership in International Organizations: Legal Treaties versus Political Pragmatism (2001), at 14]. Recent changes in Europe, especially the dissolution of Soviet Union and Yugoslavia confirm this vision of state identity and continuity. Turkey’s case is quite similar to that of Russia which regarded as the continuation of the Soviet Union. In fact, there are two arbitral rulings: the Ottoman Debt Arbitration and Roselius & Co v. Karsten and the Turkish Republic, which regard Turkey as the continuation of the Ottoman Empire. Read the rest of this entry…

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Karadzic Trial Chamber Finds No Genocide in Bosnia but for Srebrenica

Published on June 28, 2012        Author: 
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Today the ICTY Trial Chamber trying Radovan Karadzic, the former president of the Bosnian Serbs, delivered an oral order on the defendant’s ‘no case to answer’ motion for acquittal under Rule 98 bis of the ICTY RPE, under which the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. The standard for doing so is whether a reasonable trier of fact could be satisfied beyond a reasonable doubt of the accused’s criminal responsibility on a particular count of the indictment.

A press release on the order is available here. A formal written decision will follow. In a nutshell – and this is hardly news – the Chamber upheld 10 counts of the indictment, finding that a reasonable trier of fact could be satisfied beyond a reasonable doubt that Karadzic was criminally responsible through a JCE for the crimes alleged, including the Srebrenica genocide. What is news, however, is that the Chamber granted Karadzic’s motion with respect to the count charging him with genocide outside Srebrenica in July 1995, in selected other municipalities in Bosnia:

Read the rest of this entry…

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President Obama Creates US Atrocities Prevention Board

Published on August 22, 2011        Author: 
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Earlier this month, US President Barrack Obama directed the National Security Advisor to create an Atrocities Prevention Board which will be tasked with co-ordinating the US government’s policies on the prevention of mass atrocities and genocide. In addition, the President also launced a US interagency review which will, inter alia, develop the membership, mandate and structure of the Atrocities Prevention Board but which will also identify:

steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to:  conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities; identifying new tools or capabilities that may be required; identifying how we can better support and train our foreign and armed services, development professionals, and build the capacity of key regional allies and partners, in order to be better prepared to prevent and respond to mass atrocities or genocide.

In a Presidential Study Directive on Mass Atrocities, issued on 4 August, the President stated that:

Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.

Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods.  America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide.  Unfortunately, history has taught us that our pursuit of a world where states do not systematically slaughter civilians will not come to fruition without concerted and coordinated effort.

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed.  By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing.  The actions that can be taken are many    they range from economic to diplomatic interventions, and from non combat military actions to outright intervention.  But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide.  This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

The work of this Review and Board will be of great interest to those academics working on prevention of genocide and other international crimes. In recent years, there has been renewed focus on the question of prevention of mass atrocity. Indeed, the Oxford Institute for Ethics, Law and Armed Conflict (of which I am Co-Director) is engaged in a project on “Prevention and Responsibility to Protect” which is looking at these very questions. The project is led by my colleague, Prof. Jennifer Welsh.

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The Genocide Convention and the Arrest Warrants Issued by the ICC

Published on January 31, 2011        Author: 
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The Human Rights and International Criminal Law Online Forum of the  Sanela Diana Jenkins Human Rights Project at UCLA Law School is hosting an online debate on (i) the obligations of Contracting parties to the Genocide Convention to implement arrest warrants for genocide issued by the International Criminal Court and (ii) the obligations of African Union States Parties to implement ICC arrest warrants. The debate is, of course, inspired by the arrest warrant issued by the ICC for Sudanese President Omar Al Bashir, which has been discussed on this blog on many occasions (see post by Marko here, and by me and others here, herehere and here, here).  The UCLA Forum is supported by the Office of the Prosecutor of the ICC and I think the questions being debated have been posed by the ICC Prosecutor.

The “debate” on the Forum is initiated by opinion pieces written by five “invited experts”: Paola Gaeta (University of Geneva); Makau Mutua (Buffalo Law School); Bill Schabas (National University of Ireland, Galway); Goran Sluiter (Amsterdam Law Faculty) and me.  Most of us accept (following the decision of the International Court of Justice in the Bosnian Genocide Convention Case) that, in principle, the Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court. I first discussed this possibility nearly two years ago in a post on this blog and also in a piece in the May 2009 issue of the Journal of International Criminal Justice. The point now seems to be accepted by others. However, there are still three points of contention relating to obligations under the Genocide Convention:

First of all, does the obligation to cooperate with the ICC which derives from the genocide convention apply only to States parties to the ICC or does it extend also to non-parties to the Rome Statute who are however parties to the Genocide Convention. Read the rest of this entry…

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ICC Prosecutor’s Inaccurate Statements about the Bashir Arrest Warrant Decision

Published on July 19, 2010        Author: 
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In an article in the Guardian Newspaper last Friday, the ICC Prosecutor, Luis Moreno-Ocampo has called on the world to take action to arrest Sudanese President Bashir following the recent decision of the Pre-Trial Chamber (PTC) of the ICC to issue arrest warrants for him on charges of genocide (see earlier post). However, in his piece, the Prosecutor makes statements about the findings of the PTC which are not only inaccurate but are shocking in their inaccuracy. Read the rest of this entry…

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ICC Issues Warrant of Arrest for Bashir on charges of Genocide

Published on July 12, 2010        Author: 
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The  Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.

Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:

 Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.

Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. Read the rest of this entry…

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Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?

Published on March 24, 2009        Author: 
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The Pre-Trial Chamber of the ICC issued an arrest warrant for Sudanese President Omar Bashir only with respect to war crimes and crimes against humanity and rejected the Prosecutor’s request for a charge of genocide. Marko (and Kevin Jon Heller at Opinio Juris) have (rightly, in my view) criticized the reasoning by which the majority of the Chamber held that the materials provided by the prosecution failed to provide reasonable grounds to believe that Bashir and the Government of Sudan acted with the special intent to destroy the groups being targeted in Darfur. The Prosecutor has now appealed the decision of the PTC to reject the genocide charge. If the Appeals Chamber were to add the genocide charge to the arrest warrant, the decision would have an impact on whether other States may arrest Bashir. This is because it could then be argued that the genocide charge creates an obligation arising under the Genocide Convention 1948 for parties to that treaty to cooperate with the ICC, including an obligation of arrest.

 In the 2007 merits judgment in the Bosnian Genocide Convention Case, the International Court of Justice held (paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. In that case, the ICJ found that Serbia had violated this obligation by failing to arrest and surrender, to the ICTY, persons wanted by that tribunal in connection with the genocide in Srebrenica. The ICJ relied on Article VI of the Convention which provides that

 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.

 The court implied an obligation on States to cooperate with such competent international tribunals and to arrest persons wanted by the tribunal when the State on whose territory the person is found has accepted the jurisdiction of that tribunal. Read the rest of this entry…

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In other news…

Published on February 27, 2009        Author: 
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… this time from the department of shameless self-promotion: I’ve just posted on SSRN a draft chapter on the territorial application of the Genocide Convention and state succession in the forthcoming Commentary to the Convention edited by Paola Gaeta and published by OUP. Some of my blogging here was based on that piece, so maybe some of the readers would be interested in it. Comments are welcome.

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Territorial Scope of Application of the Genocide Convention

Published on December 29, 2008        Author: 
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In the Bosnian Genocide case, Bosnia alleged that the Federal Republic of Yugoslavia (FRY, Serbia) was responsible for, inter alia, committing genocide and failing to prevent genocide on Bosnian territory. This argument, of course, immediately raised the question whether the FRY had any obligations under the Genocide Convention regarding its actions outside its own territory.

To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:

(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;

(2) The (positive) obligation to prevent genocide;

(3) The (negative) obligation not to commit genocide through their own organs or agents.

This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?

According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.

Read the rest of this entry…

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Filed under: EJIL Analysis, Genocide
 
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The Two Faces of the Genocide Convention

Published on December 24, 2008        Author: 
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In keeping with Christmas spirit, here’s my next post on the Genocide Convention.

Can a state be responsible for genocide? What does that even mean? Aren’t international crimes, in the sage words of the Nuremberg Tribunal, committed by men, not by abstract entities?Can a state even possess genocidal intent, a basic requirement for the crime of genocide?

A full answer to this question requires revisiting many old debates, particularly those during the drafting of the Genocide Convention and on then Draft Article 19 on state crimes of the International Law Commission’s project on state responsibility, that was removed from the final ILC Articles.

If there is one thing is made clear from an examination of the Convention’s travaux, as well as state practice, that is that states have excluded any form of state criminal responsibility for the crime of genocide or any other international crime. That does not mean, however, that no state responsibility exists. In my EJIL article on state responsibility for genocide, I’ve argued that the attribution model developed by the ILC, coupled with the fundamental distinction between primary and secondary rules of state responsibility, provides a simple answer to the conundrum of state responsibility for international crimes. If an individual commits an international crime such as genocide, and if the acts of this individual are attributable to a state, pursuant to the generally applicable secondary rules of attribution (if, for example, the individual is a state organ), than the state is responsible for the crime committed by that individual as an internationally wrongful act.

This responsibility is again not criminal, but the regular state responsibility recognized in international law, that carries with itobligations of cessation and reparation. It rests on a primary obligation of states not to have individuals whose acts are attributable to them to commit international crimes. Genocide is thus at the same time both an international crime, for which individuals are criminally responsible, and an internationally wrongful act, for which states to which the acts are attributable bear their own responsibility. That does not mean there is a ‘tort’ of genocide or ‘civil’ genocide in international law – genocide still, at all times, remains an international crime, and its elements must be proven to the exacting standards demanded by the relevant body of primary rules. Thus, for example, though a state – an abstract entity – cannot have genocidal intent, such intent of the individuals whose acts are being attributed to the state must be conclusively established.

The next question is whether this type of responsibility, that in my view undoubtedly exists in customary international law, also exists within the (jurisdictional) confines of the Genocide Convention. The ICJ gave an answer to this question in the Bosnian Genocide case.

Both at the preliminary objections and at the merits stage of the case the FRY/Serbia disputed the existence of a separate obligation of a state under the Convention not to commit genocide, asserting that the Convention was a classical international criminal law treaty, dealing with crimes committed by individuals, not states. All the Convention does is to require states parties to criminalize in their domestic law the crimes that it defines, and then prosecute the perpetrators of these crimes. Though Article IX of the Convention confers jurisdiction upon the Court to resolve disputes between contracting states ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’, this was, in Serbia’s argument, merely a compromisory clause which did not create substantive rights and obligations.

The Court disagreed. It held that ‘Article I [of the Convention], in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles [of the Convention]’ so that the ‘the Contracting Parties have a direct obligation to prevent genocide.’ Moreover, according to the Court, even though

Article [I] does not expressis verbis require States to refrain from themselves committing genocide …[i]t would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.

(Genocide judgment, paras. 162, 165 & 166)

Though Serbia was on the facts not found responsible for the commission of genocide in Bosnia, the Court’s judgment affirmed the attribution model developed by the ILC and the distinction between primary and secondary rules. States can thus be brought before the ICJ under Article IX of the Convention not merely for failing to criminalize or prosecute genocide, but also for committing it through their organs or failing to prevent it.

In my next post I will deal with the territorial scope of state obligations under the Convention.

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Filed under: EJIL Analysis, Genocide