The Punishers

by Karl Horberg

category: Peace & Justice

Published October 21, 2009 @ 03:55PM PT

It goes without saying that the Genocide Convention addresses a particular crime. But it would be a toothless document if it stopped at the definition of that crime. It is necessary to outline the types of acts that are to be punished. Article III of the Genocide Convention enumerates these acts, but how did this article arrive at its final form? How have these acts been interpreted over the years?

The three experts in charge of the Secretariat draft sought to punish types of preparatory acts, including "setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide" or "issuing instructions or orders, and distributing tasks with a view to committing genocide." In their report the experts recognized that banning preparatory acts stretched the definition of criminal action and might be construed as being too distant from the crime of genocide itself. However, they concluded that punishment of these acts could be justified when weighed against the need to curb genocide.

The Ad Hoc draft condensed the Secretariat's language and settled on four categories: conspiracy to commit genocide, incitement to commit genocide, attempts to commit genocide, or complicity in any of the aforementioned acts. The Committee initially supported, but ultimately voted against, a clause punishing preparatory acts. The arguments was twofold, one that preparatory acts were difficult to define and second that any definitions already put forth would naturally already fall under the conspiracy and complicity paragraphs.

The Soviet delegate submitted a proposal to punish all "forms of public propaganda...aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of the acts of genocide." This proposal was rejected outright by the rest of the Committee because they feared it would be used to limit freedom of expression.

In the Sixth Committee the U.S. delegate attempted to remove the paragraph concerning incitement. The delegate argued that incitement should create an imminent threat and as the paragraph stood it was too broad. The Polish delegate disagreed, arguing that the crime of genocide was so serious it demanded that certain acts should be punished, even though they were not currently punishable under criminal law. The delegate from Haiti brushed aside freedom of expression concerns, stating that those the gravity of the crime demanded that the rights of potential genocide victims take precedence over the rights of the media.

The Soviet delegate again attempted to add preparatory acts to the article. This time it found support from the Netherlands who pointed out that the Holocaust would not have been possible if the Nazis did not have a detailed plan. But the delegate from the UK protested that preparatory acts should not be punished because of a "vague assumption" that these acts will lead to genocide. Still undeterred by failure the Soviets attempted to include a paragraph that would require states parties to "disband and prohibit any organizations aimed at inciting racial, national or religious hatred or the commission of the acts of genocide." This proposal was soundly defeated.

In its final form the Genocide Convention lists five punishable acts: genocide, conspiracy to commit genocide, direct and public incitement, attempt to commit genocide, and complicity in the commission of genocide. The ad hoc tribunals have incorporated all of acts into their statues, but have generously expanded individual responsibility. Article 6(1) in the ICTR Statute and Article 7(1) in the ICTY Statue hold any person "who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution" responsible for genocide. The Rome Statute, on the other hand, does not list any of the punishable acts.

The punishable acts are useful not only because they make it clear what is a crime, but because as the drafters realized they add new dimensions to criminal law. Genocide is a crime of great magnitude, requiring the deaths of thousands of people. It is nearly impossible to prove that a person physically murdered an entire race, but is much simpler to prove that a person either ordered or planned the killings.

In this regard, complicity is one of the more interesting punishable offenses. Criminal liability is not a new additional to international criminal law. In fact, shortly after World War Two two German chemists were put to death by the British Military Court for their role in supplying the chemical Zyklon B for use in concentration camps.  The ICTR Trial Chamber examined the issue of complicity in Akayesu, eventually deciding that while a positive action is necessary, such as procuring weapons, the accomplice does not need to possess special intent mentioned in Article II. Some scholars question the utility of the Trial Chamber's decision because of its reliance on complicity as defined in the Rwandan penal code. The ICTR Trial Chamber later rejected the Akayesu formulation in the Semanza decision, adopting a much broader definition of complicity describing it as encompassing all acts of assistance or encouragement that contribute substantially to the commission of genocide.

The question of who is responsible for genocide is an important one as well. What types of persons can be brought before the court on these charges? This is a question the drafters had to deal with and one we will look at next time.

[Photo of Auschwitz-Birkenau  by Daniel Gasienica.]