Abstract
A cross-continental synergy is paramount when addressing victimization in genocide. The definition of victim of genocide is however challenging, complex, and open to controversies, especially when dealing with a large number of casualties. By proposing a reshaping of the purely legal framework which defines genocide victims, in support of a characterisation that includes all the multiple and sometimes conflicting voices of those who are direct or indirect witnesses of the “crime of all crimes,” this contribution argues for the need of a global legal framework that embeds both collective victimization in genocide as well as the uniquely different and diverse experiences of the victims.
TopIntroduction
When Lemkin (1944) coined the neologism genocide, he opened up the possibility to shift paradigms in international law (Policek, 2012), unequivocally defining the “crime of all crimes” (Graven, 1950). His contribution has facilitated the development of a vibrant community of legal scholars (Drumbl, 2007), outstanding for their efforts in ensuring that, under the auspices of the United Nations, genocide could be recognized as an international crime (Irvin-Erickson, 2017). In 1948 the United Nations passed the Convention on the Prevention and Punishment of Genocide and, more recently, the International Criminal Court (ICC) was established by the Rome Statute of the International Criminal Court in 1998, and it began sittings in July 2002, after 60 countries had ratified the Rome Statute (Khan et al. 2009). Synergies for affording a cross-continental definition and acknowledgment of victimization in genocide, still in their infancy, were gradually developing (Brienen and Hoegen, 2000). According to the definition proposed by the Convention, genocide is the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (Fein, 1979). The International Criminal Court, taking a cue from such definition has broadened the scope of the Convention providing for a more extended jurisdiction and the power to prosecute states as well as individuals, regardless of the office or status they hold (Rosenfeld, 2016).
Ad hoc tribunals were also set up (Schabas, 2000; 2003). Recognizing that serious violations of humanitarian law were committed in Rwanda, and acting under Chapter VII of the United Nations Charter, the Security Council created the International Criminal Tribunal for Rwanda (ICTR) by resolution 955 of 8 November 1994 (Staub, 2008). The purpose of this measure is to contribute to the process of national reconciliation in Rwanda and the maintenance of peace in the region (Reyntjens, 2004). To deal with crimes that took place during the conflict in the Balkans in the 1990s, the International Criminal Tribunal for the Former Yugoslavia was established in 1993 (Calvetti and Scovazzi, 2007). It has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced (Tolbert, 2002). In 2001 the Cambodian National Assembly passed a law to create a court to try serious crimes committed during the Khmer Rouge regime 1975-1979. This court, the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Extraordinary Chambers or ECCC) was created by the government and the UN but it is independent of them. It is a Cambodian court with international participation applying international standards and providing a new role model for court operations in Cambodia (Cook, 2017). The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. Thirteen indictments were issued by the Prosecutor in 2003 (Kelsall, 2009).
Key Terms in this Chapter
Collective Victimhood/Victimization: The experience of being targeted as members of a group.
Genocide: The action to destroy an ethnic, national, racial, or religious group in whole or in part.
International Criminal Tribunal for the Former Yugoslavia (ICTY): Established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It had jurisdiction over four clusters of crimes committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. The maximum sentence it could impose was life imprisonment. Various countries signed agreements with the UN to carry out custodial sentences.
War Crimes and Crimes Against Humanity: Four elements distinguish war crimes from crimes against humanity. War crimes may only be committed during an armed conflict, whereas crimes against humanity can be committed both in times of war and of peace. Furthermore, a crime against humanity may be committed against nationals of any state, including that state’s own nationals, if the state takes part in the attack. Whereas crimes against humanity may only be committed against civilians, most war crimes may be committed against both civilians and enemy combatants. A crime against humanity must be committed as part of a widespread or systematic attack upon a civilian population; there is no such requirement for a war crime. An isolated act could qualify as a war crime, but not as a crime against humanity. Nearly all of the underlying offences which could qualify as crimes against humanity would also amount, all other conditions being met, to war crimes, but the converse is not necessarily true.
International Criminal Law: Intended as the body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression.
International Criminal Tribunal for Rwanda (ICTR): In the direct aftermath of the Genocide in Rwanda and during the subsequent 20 years, the ICTR has been at the forefront of the global fight against impunity, prosecuting those considered most responsible for the gravest crimes committed in 1994. As the Tribunal approaches the end of its mandate, its legacy lays the foundation for a new era in international criminal justice.