The Crime of Genocide Dr. Liliosa Azara Professor of Contemporary History, Roma Tre University Liliosa.azara@uniroma3.it Rome, May 3th 2016

Contents Human rights: ideology, politics, law The Crime of Genocide Contents Human rights: ideology, politics, law International criminal law Crimes against humanity Crime of Genocide Liliosa Azara

Raphael Lemkin, in 1944, defines genocide as follows: The Crime of Genocide Raphael Lemkin, in 1944, defines genocide as follows: Generally speaking genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated 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. The objective of such a plan would be the disintegration of the social and the political institutions of culture, language, national feelings, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity and the actions involved are directed at individuals, not in their individual capacity but as members of the national groups Liliosa Azara

The Crime of Genocide Resolution 96, preceded by the one concerning the Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, recognised genocide as a crime in December 1946: Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political, and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. Liliosa Azara

The Crime of Genocide ... The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime; Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly. Liliosa Azara

Genocide studies The crime of state (1959), Pieter Drost Genocide and state power (1979), Irvin L. Horowitz Accounting for genocide (1979), Helen Fein The specter of genocide (2003), Robert Gellately, Ben Kiernan Le siècle des génocides (2004), Bernard Bruneteau

Century of genocides

Herero Western-South Africa 1904-1906

Armenians Ottoman Empire 1915-1917

Jews Europe 1941-1945

Cambodian Cambodia 1976-1979

Tutsi Rwanda 1994

Nuremberg Law

The Crime of Genocide Convention on the Prevention and Punishment of the Crime of Genocide (December, 10th 1948) Article 2 enumerates in detail the punishable acts constituting genocide – this is one of the most controversial and criticized aspects of the Convention – that is to say, acts committed with the intention of destroying, completely or in part, national, ethnic, racial or religious minorities:   Killing members of the group Causing serious bodily or mental harm to members of the group Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part Imposing measures intended to prevent births within the group Forcibly transferring children of the group to another group Liliosa Azara

The Crime of Genocide Article 3 sanctions, in addiction to genocide, the acts related to it; in particular: Conspiracy to commit genocide Direct and public incitement to commit genocide Attempt to commit genocide Complicity in genocide Liliosa Azara

The Crime of Genocide Article 4 disposes that “persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals” Liliosa Azara

The Crime of Genocide Article 5 foresees that “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention” but also “to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article 3” Liliosa Azara

The Crime of Genocide Article 6 recites: “Persons charged with genocide or any of the other acts enumerated in Article 3 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” Liliosa Azara

The Crime of Genocide The United Nations “acknowledged Nuremberg as a source for law, but they were afraid of the creation of a customary law. (They preferred) to limit to the reaffirmation of the fundamental principle of the rights of the individual, which bind it less directly. The Universal Declaration of Human Rights adopted by UN on the 10th December 1948 established the prerogatives of the individual within the State, while granting the rights of the human being. […] It did not grant, though, an efficacious protection to the individuals: the principle of protection of persons did not prevail on that of non-interference.” (Yves Ternon, l’Etat criminel, 1997 )   Liliosa Azara

The Crime of Genocide “They have often supported the idea that Nuremberg Trials and Tokyo Trials have been an exertion of “justice of the winners”, and it would therefore be wrong to take them as a precedent, as a model for the realization of international mechanisms of criminal justice […]. What saved Nuremberg for real form the historical judgment is mostly the fact they affirmed some new juridical principles which were deeply felt as necessary and which have been seen as instruments of an essential importance to protect universal values. It has been a fundamental step, in the process of progressive erosion of the absolute vision of the State sovereignty, which will keep on and find its expression, during the Post-World War II, in the movement for the protection of human rights”. (Salvatore Zappalà, La giustizia penale internazionale, 2005)   Liliosa Azara

Directed by Yves Simoneau, USA 2000 Final speech Nuremberg trials 1945-1946 «Nuremberg» Directed by Yves Simoneau, USA 2000

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