Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70^th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70^th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. In the early 20^th century, the idea that universal jurisdiction or ‘universal repression’, as it was then termed, applied to a specific list of offences was professed by a group of European scholars, which included Vespasian Pella, Emil Stanislaw Rappaport and Henri Donnedieu de Vabres. These offences were deemed to be delicta iuris gentium (or crimes against the law of nations). In 1933, Raphael Lemkin, the famous genocide scholar who coined the term ‘genocide’, added to this list ‘acts of barbarity’, which were ‘attacks carried out against an individual as a member of a collectivity’. Significantly, Lemkin and the other scholars framed universal jurisdiction within what is now termed ‘the obligation to prosecute or extradite’, whereby the State in which the suspect was present must either try the accused, or extradite them to another State for trial (namely, the territorial State or State of nationality of the accused). Thus, in its early stages, the rationale for the application of universal jurisdiction to the crime was to prohibit the génocidaire from living freely in another State, as was asserted by Lemkin in his 1944 text, Axis Rule in Occupied Europe.

The operation of the United Nations War Crimes Commission (UNWCC) from 1943-48 allowed for the prosecution of genocide under the universality principle, albeit indirectly. It is important to note that until the adoption of UNGA Resolution 96(I) (11 December 1946), genocide was considered to be a type of crime against humanity, which at the time required a nexus to an international war. Indeed, the UNWCC identified genocide as a type of crime against humanity linked to war (see commentary on the Trial of Ulrich Greifelt and others (Rusha Trial). Moreover, at least two States that participated in the UNWCC prosecuted genocide as a crime against humanity under the principle of universality, Poland and the United States. In addition, the US National Military Tribunal’s (NMT) transition away from the idea that crimes against humanity could only be committed during wartime, in trials such as Ministries and IG Farben meant that the NMT was indirectly asserting universal jurisdiction over genocide committed during peacetime. Writing on the case law of the NMT, Kevin Jon Heller notes that ‘…the definition of a crime against humanity adopted in Einsatzgruppen… strongly suggest… that universal jurisdiction justified the prosecution of such crimes even in the absence of a connection to war’ (see pp 137and 236). Notwithstanding its limitations, the UNWCC furthered the idea that universal jurisdiction could be applied to genocide, although this development was not a conscious effort on the part of the UNWCC Member States. Indeed, one of the Chairmen of the UNWCC, Lord Wright, acknowledged the connection between genocide and universality, when he stated that genocide had become ‘…a delictum iuris gentium alongside offences such as piracy, trade in women and children, trade in slaves, the drug traffic, forgery of currency and the like’ (see commentary on the Rusha Trial).  This position is hardly surprising, given that the trials under the UNWCC were influenced by the writings of universal jurisdiction proponents such as Lemkin.

As the drafting history of the Genocide Convention illustrates, universal jurisdiction over the crime of genocide was purposefully excluded from the treaty. During the process, the inclusion of a provision providing for universality over genocide was included in the first version of the Convention, which was drafted by Lemkin, Pella and de Vabres, as well as in separate proposals submitted by Saudi Arabia and Iran. Throughout the discussions, the type of universality proposed was centered on it being exercised by the custodial State (the State in which the accused was present), rather than by any State. Ultimately, fears that State sovereignty would be violated by the exercise of universality superseded the humanitarian-based arguments cited in support of these proposals.

The view that Article 6 of the Genocide Convention did not restrict the application of other types of jurisdiction was held by some scholars, and eventually by a national court in the Attorney General of the Government of Israel v. Eichmann (see (1968) 36 International Law Reports 277 and 59). Eichmann argued that Article 6 of the Genocide Convention limited adjudicatory jurisdiction for the crime to the territorial State or to an international penal tribunal. Citing the writings of Pieter N Drost and Nehemiah Robinson and the declaration of the Sixth Committee authorising the exercise of the passive personality principle in respect of genocide, the District Court of Jerusalem declared:

Had Article 6 meant to provide that those accused of genocide shall be tried only by “a competent court of the country in whose territory the crime was committed” (or by an “international court” which has not been constituted), then that article would have foiled the very object of the Convention “to prevent genocide and inflict punishment”….

Notably, in Eichmann, universal jurisdiction is classified as a ‘power’ rather than a duty of States, keeping in line with the practice of the UNWCC. In coming to its conclusion, the Israeli courts relied on the case law of the UNWCC, and academic writings, such as Hersch Lauterpacht and Willard B Cowles.

By the 1990s, support for the application of universality to genocide was gaining traction. The Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992) affirmed that acts prohibited under the Genocide Convention are ‘subject to universal jurisdiction’. Moreover, in 1996, the International Law Commission included universal jurisdiction over genocide in its Draft Code of Crimes against the Peace and Security of Mankind, based on the presence of the accused in the prosecuting State.

The creation of the international penal tribunal referred to in Article 6 of the Genocide Convention eventually came to fruition with the establishment of the international criminal tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), in 1993 and 1994 respectively. This advancement was a further catalyst for the application of universal jurisdiction to the crime of genocide. As UN Member States were obligated to co-operate with the ICTY & ICTR, their national courts were granted concurrent competence to try offences within the jurisdiction of the Tribunals. Notwithstanding that neither tribunal operated on the basis of universality, nor obligated UN member States to incorporate universal jurisdiction into domestic law, some States began to legislate for the application of the principle to genocide. In Belgium, the loi du 10 fevrier 1999 relative á la répression des violations grave du droit international humanitaire was amended to allow for the exercise of universal jurisdiction over the crime of genocide. The amendment was proposed with a particular context in mind, and was originally introduced to implement the Genocide Convention. After the Rwandan genocide occurred in 1994, hundreds of Rwandans fled to Belgium, and the country was faced with the presence of alleged génocidaires in its territory. Some suspects sought asylum, which is unsurprising given the historical links between the two States, and that some were dual Belgian-Rwandan citizens. (Extradition was not an option as there was no extradition treaty in place between Belgium and Rwanda). Similarly, Germany was host to thousands of refugees during the 1990s Balkans war, one of whom was Duško Tadić, who was charged with aiding and abetting genocide, before the ICTY sought his surrender. Notably, in the 1999 case of Public Prosecutor v Jorgić, the Federal Supreme Court of Germany interpreted the reference to ‘national courts’ in Article 9(1) of the ICTY Statute (concerning concurrent jurisdiction of national courts) as not limiting prosecution to the territorial State. Here, the Court stated that ‘…the opinion that genocide can only be punished by a court of the territorial State or by an international tribunal is irreconcilable with the obligation imposed by Article 1 [of the Genocide Convention] on all States to repress the international crime of genocide’. Indeed, Luc Reydams described Article 8 of the ICTR Statute (concerning concurrent jurisdiction of national courts) as ‘… implicit recognition of universal jurisdiction over the crimes’.

Indeed, the impetus for the exercise of universal jurisdiction over the crime of genocide continued with the creation of the Rome Statute of the International Criminal Court in 1998. In Germany, the Völkerstrafgesetzbuch of 2002 was enacted to give effect to Germany’s obligations under the Rome Statute. Notably, the legislation allows for the application of universality to the crime of genocide. In the UK, the International Criminal Court Act 2001 provides for a limited form of universality in respect of foreigners who have committed genocide abroad, so long as they are legally resident. Notwithstanding that the statutes of the ICTY, ICTR and the International Criminal Court did not require the incorporation of universal jurisdiction over genocide in national law and the exercise thereof, they certainly provided an incentive for some States to apply the principle to the crime, in order to meet their obligations in respect of each Court. The 1990s and early 2000s was a period where universal jurisdiction over the crime developed as a relative speedy pace. Of course the ‘anti-impunity’ environment of that time is also likely to have contributed to this advancement.

Returning to the legacy of the Genocide Convention at 70, it is clear that the jurisdictional grounds under which the crime may be punished, set out in Article 6, are non-exhaustive. States can and do rely on universal jurisdiction to prosecute genocide. What is more, one of the justifications for this position is the obligation on States to punish the crime of genocide, under Article 1. Notwithstanding this, the reality is that cases where universality is exercised over genocide are few and far between. The latest annual report on universal jurisdiction cases tells us that there are 15 ongoing investigations and trials concerning genocide. The historical trajectory of the application of universality to genocide demonstrates that universal jurisdiction over genocide should be framed as part of the obligation to prosecute or extradite. In addition, it should not be forgotten that the territorial State and State of nationality should first have the opportunity to try the offender, given their strong nexus to the crime. Moreover, the development of universal jurisdiction over the crime of genocide also demonstrates the importance of the creation of humanitarian rules outside of conventional international law. Lastly, considering the wider implications of this advancement, the question arises as to what crimes universal jurisdiction will transpose in the future.