CHAPTER I
INTRODUCTION
A.
BACKGROUND
The year 2008 marks the 60th anniversary of the Convention on the
Prevention and Punishment of the Crime of Genocide. It is also the 20th
anniversary of the ratification of this treaty by the United States. As
Americans consider our country’s role in the world in the years to come, we are
convinced that the U.S. government can and must do more to prevent genocide, a
crime that threatens not only our values, but our national interests. The world
agrees that genocide is unacceptable and yet genocide and mass killings
continue. [1]
The
Convention on the Prevention and
Punishment of the Crime of Genocide was adopted by the United Nations General Assembly
on 9 December 1948 as General Assembly
Resolution 260. The Convention entered into force on 12 January 1951.
It defines genocide
in legal terms, and is the culmination of years of campaigning by lawyer Raphael Lemkin.
Yaur Auron writes "When Raphael Lemkin coined the word genocide in 1944 he
cited the 1915 annihilation of Armenians as a seminal example of
genocide". All participating countries are advised to prevent and punish
actions of genocide in war and in peacetime. The number of states that have
ratified the convention is currently 140.[2]
The drafting history (travaux preparatoir) of
the Genocide Convention, in fact, reveals such a scandal. At the outset, the
discourse of genocide was within the domain of international
lawyers
who argued for genocide that includes politicide; in its later development, diplomats
and policy makers nurtured the concept in the spirit of realist politics. The drafting
of the Genocide Convention was then a subject of political compromise, developed
by legal conferences, and hence, formatted in legal realism. And the legal realists,
according to Barnet (1978: 97-98), “are distinctive … in their preoccupation
with the process of judicial decisions, with how law is made…. Law is here
taken as a social phenomenon, as a decision or process of authoritative
decisions” (italics added). Among the most important “authoritative
decisions” were the exclusion of politicide and elimination of universal
jurisdiction from the Genocide Convention. The drafting process was, indeed, “authoritative”,
because the delegates to the genocide conference in 1948 were equipped with
“full power” from their respective governments and thus they made authoritative
decisions on behalf of the governments. To save the world from the peril of
genocide was then a noble endeavour pursued by these diplomats; underneath,
however, their mission was clear: “to insulate political leaders from scrutiny
and liability” (Van Schaack, 1997:1). One way of doing this was by defining the
term “genocide” to have a narrow meaning
that
excludes almost everything.[3]
Then, the porpose of this paper is to give an explanation
regarding to the term of genocide and its elements according to 1948 Convention
on Genocide.
B.
PROBLEMS
IDENTIFICATION
Based
on the background which was mentioned above this mini research paper will elaborate:
a) What
is meant by genocide according to 1948 Convention on Genocide?
b) What
is the elements of genocide according to Genocide Convention?
CHAPTER
II
THEORETICAL
BASIS
A.
The
Definition of Genocide
By
the time the General Assembly completed
its standard setting, with the 1948
adoption of the Convention of the Prevention and Punishment of the Crime
of Genocide, ‘genocide’ had a detailed and quite technical definition as a
crime against the law of nations. Yet the preamble of that instrument
recognizes ‘that at all periods of history genocide has inflicted great losses
on humanity’.[4]Article
2 of the 1948 Convention on Genocide: In the present
Convention, genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group,
as such:
Raphael Lemkin defined
genocide as “ a coordinate plan of different actions aiming at the destruction
of essential foundations of the life of national groups, with the aim of
annihilating the groups themselves”. He said that the objective of such a plan
would be disintegration of the political and social institutions of culture,
language, national feelings, religion, and the economic existence of national
groups and the destruction of the personal security, liberty, health, dignity,
and even the lives of the individuals belonging to such groups. For Lemkin,
“genocide is directed against the national group as an entity, and the actions
involved are directed against individuals, not in their individual capacity,
but as members of the national groups”.[5]
B.
The Elements of Genocide
1. The Objective Elements
As mentioned in article
II of the Genocide Convention, There are several objective elements of
genocide, namely:
a. killing members ( more
than one members ) of a ‘protected group’;
b. causing serious bodily
or mental harm to members of a ‘protected group’;
c. deliberately inflicting
on the group conditions of life calculating to bring about physical
destruction;
d. imposing measures
intended to prevent birth within the group;
e. forcibling transferring
children.
2. The Subjective Elements
The mental requirement
for genocide as a crime involving international criminal liability is provided
for in article II (1) of the Convention on Genocide, namely:
a. The ‘intent to destroy’,
in whole or in part, a national, ethnical, racial or religious group’;
b. Genocide is a typical crime
based on the ‘depersonalization of the victim’, that is a crime where the
victim is not targeted on account of his or her individual qualities or
characteristic, but only because he or she is a member of a group;[6]
CHAPTER
III
ANALYSING
DATA
“The definition of genocide requires a degree of
knowledge of the ultimate objective of
the criminal conduct rather than knowledge of every detail of a comprehensive
plan or policy of genocide. A subordinate is presumed to know the intentions of
his superiors when he receives orders to commit the prohibited acts against
individuals belonging to a particular group. He cannot escape responsibility if
he carries out the orders to commit the destructive acts against victims who
are selected because of their membership in a particular group by claiming that
he was not privy to all aspects of the comprehensive genocidal plan or policy.
The law does not permit an individual to shield himself from the obvious. For
example, a soldier who is ordered to go from house to house and kill only
persons who are members of a particular group cannot be unaware of the
irrelevance of the identity of the victims and the significance of their
membership in a particular group. He cannot be unaware of the relevance of the
destructive effect of this criminal conduct on the group itself. Thus the
necessary degree of knowledge and intent may be inferred from the nature of the
order to commit the prohibited acts of destruction against individuals who
belong to particular group and are therefore singled out as the immediate
victims of the massive criminal conduct.”[7]
So, what is meant by the concept of ‘protected
group’?. Based on the wording and the history of the definition of genocide,
the Court[8]
rejected a negative construction of the concept of ‘ protected group ’,
which considers as a protected group all individuals rejected by the
perpetrators of the atrocities. This is correct and nothing must be added to
the compelling reasoning underlying that position. It is worth adding, however, that the Court’s
reasoning would seem to also exclude – albeit only by implication – a purely subjective
concept of ‘ protected group’, meaning a conception of the group based on
the views of the alleged group or perpetrators. The Court correctly recalled
that ‘ the drafters of the Convention also gave close
attention
to the positive identifi cation of groups with specifi c distinguishing
characteristics
in
deciding which groups they would include and which (such as political groups)
they would exclude ’.[9]
As mentioned above, genocide is a crime where the victim
is not targeted on account of his or her individual qualities or
characteristics, but only because he or she is a member of a group. As the
German Federal Court of Justice rightly held in Jorgic in 1999, the perpetrators of genocide do not target a person
‘in his capacity as an individual’; ‘they do not see the victim as a human
being but only as a member of the persecuted group’.[10]
a.
Genocide by killing members of the group
The conduct of this type
is the perpetrator killed one or more persons. The term “killed” is
interchangeable with the term “caused death”. The perpetrator intended to
destroy, in whole or in part, that national, ethnical, racial or religious
group, as such. The conduct took place in the context of a manifest pattern of
similar conduct directed against that group or was conduct that could itself
effect such destruction.[11]
b.
Genocide by causing serious bodily or mental harm to members of a
‘protected group’.
This conduct may include,
but is not necessarily restricted to, acts of torture, rape, sexual violence or
inhuman or degrading treatment. The circumstance of this is such person or
persons belonged to a particular national, ethnical, racial, or religious
group. The
conduct took place in the context of a manifest pattern of similar conduct
directed against that group or was conduct that could itself effect such
destruction.[12]
c.
Genocide by deliberately inflicting on the group conditions of
life calculating to bring about physical destruction.
The
perpetrator inflicted certain conditions of life upon one or more persons. The
term "conditions of life" may include, but is not necessarily
restricted to, deliberate deprivation of resources indispensable for survival,
such as food or medical services, or systematic expulsion from homes. The
conditions of life were calculated to bring about the physical destruction of
that group, in whole or in part.[13]
d.
Genocide by imposing measures intended to prevent birth
within the group.
The
measures imposed were intended to prevent births within that group. Such person or persons belonged to a
particular national, ethnical, racial or religious group.[14] In Akayesu
it was held that these measures could consist of ‘sexual mutilation’, the
practice of sterilization, forced birth control ( and the ) separation of the
sexes and prohibition of marriages’; in addition, the measures at issue may be
not only physical but also mental; they may be include rape as an act directed
to prevent births when the woman raped refuses subsequently to procrate.[15]
e.
Genocide by forcibling transferring children of the group to
another group.
The
conduct is the perpetrator forcibly transferred one or more persons. The term
"forcibly" is not restricted to physical force, but may include
threat of force or coercion, such as that caused by fear of violence, duress,
detention, psychological oppression or abuse of power, against such person or
persons or another person, or by taking advantage of a coercive environment.
The circumstance of this is the person or persons were under the age of 18
years and The perpetrator knew, or should have known, that the person or
persons were under the age of 18 years.[16]
CHAPTER
IV
CONCLUSION
According to Raphael Lemkin, genocide is as “ a
coordinate plan of different actions aiming at the destruction of essential
foundations of the life of national groups, with the aim of annihilating the
groups themselves”. He said that the objective of such a plan would be
disintegration of the political and social institutions of culture, language,
national feelings, religion, and the economic existence of national groups and
the destruction of the personal security, liberty, health, dignity, and even
the lives of the individuals belonging to such groups.
1. The Objective Elements
As mentioned in article
II of the Genocide Convention, There are several objective elements of
genocide, namely:
a. killing members ( more
than one members ) of a ‘protected group’;
b. causing serious bodily
or mental harm to members of a ‘protected group’;
c. deliberately inflicting
on the group conditions of life calculating to bring about physical
destruction;
d. imposing measures
intended to prevent birth within the group;
e. forcibling transferring
children.
f. The Subjective Elements
The mental requirement
for genocide as a crime involving international criminal liability is provided
for in article II (1) of the Convention on Genocide, namely:
a. The ‘intent to destroy’,
in whole or in part, a national, ethnical, racial or religious group’;
b.
Genocide is a typical crime based on the ‘depersonalization of the
victim’;
BIBLYOGRAPHY
o Madeleine
K. Albright and William S. Cohen, Preventing
Genocide, United State of America: United
States Holocaust Memorial Museum, The American Academy of Diplomacy, and the Endowment
of the United States Institute of Peace, 2008;
o
Siswo Pramono, An Account of the theory of genocide, Canberra: Australian National
University, 2002;
o
William A. Schabas, Genocide in International Law, Cambridge: the press syndicate of
the university of Cambridge, 2000;
o
William Schabas, The Genocide Convention at Fifty, Washington DC: United States
Institute of Peace Special Report,
1999;
o
Unknown, International Criminal Law;
o
(Report of the International Law
Commission on the work of its forty-eighth session 6 May-26 July 1996, 51U.N.
G.A.O.R. Supp. (No. 10), U.N. Doc. A/51/10 (1996);
o
Claus Kreb, The International Court of Justice and the Elements of the Crime of
Genocide, The European of Internatioanl
Law Vol. 18 no.4;
o
The report of the Preparatory Commisson
for the International Criminal Court, Elements
of the Crime of Genocide, 6 July 2000;
[1] Madeleine K. Albright and
William S. Cohen, Preventing Genocide, United
State of America: United
States Holocaust Memorial Museum, The American Academy of Diplomacy, and the
Endowment of the United States Institute of Peace, 2008, p. ix
[2]
www.Wikipedia.com
[3]
Siswo Pramono, An Account of the theory
of genocide, Canberra: Australian National University, 2002, p. 2
[4]
William A. Schabas, Genocide in
International Law, Cambridge: the press syndicate of the university of
Cambridge, 2000, p. 14
[5] William
Schabas, The Genocide Convention at
Fifty, Washington DC: United
States Institute of Peace Special
Report, 1999, p. 2
[6]
Unknown, International Criminal Law, p.
137
[7] (Report of the
International Law Commission on the work of its forty-eighth session 6 May-26
July 1996, 51U.N. G.A.O.R. Supp. (No. 10), U.N. Doc. A/51/10 (1996), p.90).
[8]
The International Court of Justice
[9]
Claus Kreb, The International Court of
Justice and the Elements of the Crime of Genocide, The European of Internatioanl Law Vol. 18 no.4, p. 623
[10]
Unknown, International Criminal Law, p.
137
[11]
The report of the Preparatory Commisson for the International Criminal Court, Elements of the Crime of Genocide, 6
July 2000.
[12]
ibid
[13]
ibid
[14]
ibid
[15]
Unknown, International Criminal Law, p.
134
[16]
The report of the Preparatory Commisson for the International Criminal Court, Elements of the Crime of Genocide, 6
July 2000
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