Source: Oslobođenje
Author: Prof. dr. Rasim Muratović
This year, on December 9, the world marked the 75th anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide, which belongs to the corpus of the most important international legal documents, to the achievements of civilization, as a result of the experience of the international community from the Holocaust and genocide in the Second World War.
Polish lawyer, Jew, human rights fighter Raphael Lemkin was a witness to that characteristic of the century - the indifference and unwillingness of the international community to oppose and prevent the crime of genocide. The genocide of the Herero people in Namibia in 1904, for example, was seen as just a simple colonial campaign by imperial Germany, framed by racial superiority. Neither the holocaust of 6 million Jews, nor the genocide of millions of others, including Serbs, then Roma (in the Nazi Independent State of Croatia), Bosniaks in Bosnia and Herzegovina and Sandžak (from the Chetnik movement of Draža Mihailović), were not enough to embed the awareness of genocide into the mindset of world powers. While Nazism was "defeated forever" in 1945, Raphael Lemkin had to wait until December 9, 1948 for the Convention on the Prevention and Punishment of the Crime of Genocide to be adopted.
SURVIVORS, EYEWITNESSES AND OBSERVERS
The study of genocide from the perspective of social and historical sciences, which has gradually taken shape since the beginning of the 1980s and continues today, has mainly resulted from two types of studies. On the one hand, the number of detailed and fundamental studies regarding specific cases of genocide and other mass crimes directed against specific groups, which have occurred in history, has increased significantly over the past decades. On the other hand, there are more and more experts in social sciences, who, starting from their disciplines and through the application of different theoretical approaches, study aspects of genocide and other crimes directed against certain groups. Among them are political scientists, sociologists and anthropologists, as well as criminologists, psychologists and psychiatrists. In addition, there is a vast literature, authored by genocide survivors, eyewitnesses and observers, and there are extremely good studies dealing with various aspects of the subject, authored by well-informed journalists, lawyers and members of other professions.
Without any intention to say that the field of genocide has been fully studied, it could still be said that these studies have received their specific form during the past decades, thanks to the efforts of researchers and prominent authors such as Raul Hilberg, Leo Cooper, Frank Chalk, Kurt Jonassohn , Helen Fein, Robert Melson, Irving Louis Horowitz, Omer Bartov, Yehuda Baue, Israel Charny, Ervin Staub, Norman Naimark and many others, because the results of their research work and what they wrote are still considered very significant. Today, many young experts contribute to this field with their new studies.
Since it was first used in 1944 in the book of legal expert Raphael Lemkin, "Axis rule in occupied Europe" (The role of the Axis powers in occupied Europe), the term "genocide" has become established and has entered into widespread use. However, it turned out that this term is extremely complex and difficult and contains different meanings. In the aforementioned work, Lemkin writes: "New concepts require new terms." By genocide we mean the destruction of a nation or an ethnic group".
For years, the term genocide has been the subject of discussion by politicians and diplomats, lawyers and legal experts, historians and social science experts, as well as various other intellectuals and the general public. During those discussions, some aspects of genocide and related mass crimes were highlighted, while some other aspects remained largely unexplored. Regardless of the certain broader agreement of experts in this field about the basic meaning of the term "genocide", the most appropriate definition and conceptualization is still being discussed today.
In 1947, Lemkin wrote in the American Journal of International Law "... the crime of genocide includes all kinds of acts, including not only taking life, but also preventing life (through abortion, sterilization), as well as actions that significantly endanger life and health (artificially induced infections, forced to work to death in special camps, intentional separation of families for the purpose of displacement...)".
Around the same time, deliberations took place within several committees in the United Nations, which ultimately contributed to the adoption of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the UN General Assembly on December 9, 1948. It is interesting that at the time of the adoption of the Convention, and even after, some members of the United Nations wanted to go further in the direction of expanding the definition of genocide, so they proposed that the definition include the so-called cultural and economic genocide, while other members wanted to add political motives of genocide. The French representative noted that "although genocide was committed in the past on racial and religious grounds, it is clear that the motivation for this crime in the future will be of a political nature." The Soviet representative offered a realistic reason for the exclusion of "politically defined groups", pointing out that their inclusion would be against the "scientific definition of genocide" and would reduce the effectiveness of the Convention, making the Convention in that case applicable to any act of political crime.
The UN Convention on the Prevention and Punishment of the Crime of Genocide marked the end of Raphael Lemkin's personal struggle to designate genocide as a crime under international law. Lemkin is a Polish lawyer who escaped from Poland in 1938. Arguably, he is considered one of the founders of genocide studies. Not only did Lemkin establish the term genocide, combining the Greek word genos (race or tribe) with the Latin word cider (to kill), but he also played a key role in establishing the Convention on the Prevention and Punishment of the Crime of Genocide.
As is well known, Article 1 of the Convention confirms that genocide, "whether committed in peace or war, is a crime under international law which the signatories undertake to prevent and punish".
According to the definition in Article 2, genocide represents: "Each of the following actions committed with the intention of destroying, in whole or in part, a national, ethnic, racial or religious group, as such: a) killing members of the group; b) inflicting severe physical or mental injuries on members of the group; c) deliberately imposing on that group living conditions that are intended to lead to its complete or partial physical destruction; d) introduction of measures aimed at preventing birth/offspring/ in that group; e) intentional transfer of children from that group to another group".
Genocide is certainly a crime punishable under international law, and many even consider it to be the heaviest and most heinous form of crime in the history of mankind. Article 3 of the Convention on the Prevention and Punishment of the Crime of Genocide states: "The following acts shall be punishable: a) genocide; b) conspiracy to commit genocide; c) direct and public incitement to commit genocide; d) attempt to commit genocide; e) complicity in genocide".
Recognized expert on genocide Helen Fein in the work: "Genocide: A Sociological Perspective" (Genocide: A Sociological Perspective), Sage Publications, London 1993, affirmed that genocide "... is the continuous and deliberate action of the perpetrators aimed at directly or indirectly physically destroys a community by preventing the biological and social reproduction of the members of that group, which is continuously carried out regardless of whether the victim has surrendered or that there is no danger from her...".
Helen Fein pointed out “that proving intent is problematic in the absence of written authority or public statements. Intent is the most difficult element of genocide to prove".
Another well-known and recognized expert on genocide Israel Charny proposed in his work "Genocide: Conceptual and Historical Dimensions" (Conceptual and historical dimensions of genocide), University of Pennsylvania Press, Philadelphia 1994, the definition of genocide: "...genocide is mass killing of a large number of human beings, in a case where it is not a military action against the military forces of the sworn enemy, but in a case where the victims are essentially unprotected and helpless".
Many other authors and sources could be cited, but from these examples it will be clear that, although many experts in this field usually focus on the deliberate mass killing and destruction of innocent people, as the basic meaning of the term genocide, they also emphasize different dimensions of genocidal process as a whole and draw attention to its various aspects.
For this reason, the perpetrators of genocide at all levels of responsibility are very concerned that the genocide be covered up, that it be kept secret, that it be denied, and lately we have a phenomenon that genocide is glorified and celebrated, while, on the other hand, the victims have every right to the realization of justice, and the survivors rightly demand that their fate and their losses be acknowledged, so they expect some kind of satisfaction and justice. Therefore, it is no wonder that today genocide is considered a social phenomenon around which there are many discussions.
Genocide against Bosniaks in Bosnia and Herzegovina 1992-1995. imposed the need to expand the original UN definition of genocide with at least three elements: systematic and mass rape of women, forced displacement of the population, siege of cities with destruction of cultural and historical monuments and intentional killing of civilians by random and targeted artillery fire. To this end, a group of legal experts from Bosnia and Herzegovina launched an initiative to supplement the international definition of genocide at the International Congress for the Documentation of the Genocide against Bosniaks in Bosnia and Herzegovina, which was held in Bonn from August 31 to September 4, 1995. . However, the insufficient persistence of the proponents of the initiative, as well as the cumbersome, complicated and ineffective apparatus of the United Nations, once again showed all its weaknesses by not reacting to the mentioned initiative.
There are many events that are designated by the adjective historical in international law, but it is certain that such a strong sign truly belongs to only some of them. The judgment handed down by the International Court of Justice on February 26, 2007 in the case of the lawsuit of Bosnia and Herzegovina against the Federal Republic of Yugoslavia (Serbia and Montenegro), in which for the first time in the history of international law, the responsibility of a state for "crimes against crimes" was decided on the merits ”, i.e. about responsibility for genocide, certainly deserves such an attribute.
In this context, we should recall some of the most important facts from the 2007 verdict: the International Court of Justice for the first time in its history established the responsibility of a state for violating the Convention on the Prevention and Punishment of the Crime of Genocide. Therefore, this judgment has historical importance. The court, dealing with the question of the responsibility of the Federal Republic of Yugoslavia (Serbia and Montenegro) for the genocide committed against Bosniaks in Bosnia and Herzegovina, established that the army of the Federal Republic of Yugoslavia (Serbia and Montenegro) participated in the war in Bosnia and Herzegovina. The court stated that there is a lot of evidence that confirms the direct or indirect participation of the official army of the Federal Republic of Yugoslavia (Serbia and Montenegro) in military operations in Bosnia and Herzegovina.
In addition to the direct participation of the army of the Federal Republic of Yugoslavia (Serbia and Montenegro) in military operations in Bosnia and Herzegovina, the Court found that the Federal Republic of Yugoslavia (Serbia and Montenegro) provided considerable military and financial assistance to the Republic of Srpska, without which it could not carry out the most important military and paramilitary activities.
What Bosnia and Herzegovina did not prove then, in the opinion of the Court, is that the crimes that confirm the commission of the material element (actus reus) of genocide were committed with specific genocidal intent (dolus specialis).
THE CONVENTION SHOULD BE STUDYED
Lately, we have had an interesting novelty, namely the emergence of third countries that initiate proceedings before the International Court of Justice. The case of The Gambia is striking, as the smallest country in continental Africa, which won its independence in 1965, but established itself as a regional leader in the protection of human rights, which in 2019 initiated proceedings against Myanmar, due to the well-founded suspicion that about 600,000 Rohingya, who remained in Myanmar, in real danger from the genocidal actions of the Myanmar state.
This case is interesting because it is the first time that the procedure has been initiated by a state that is not directly related to the case in question. Therefore, a direct connection is not required to initiate proceedings related to such acts, but every state can have this possibility. It is hoped that this will be an incentive for all countries to be encouraged in filing lawsuits against all those who planned, organized and carried out the crime of crimes, the crime of genocide, behind which the state stands because of its comprehensiveness.
And the latest case is the interest of Brazil, Bolivia and South America to file a joint complaint to the International Court of Justice against Israel for the genocide of Palestinians in Gaza.
In the end, the 20th century was the century of genocide and because it had already happened/performed once before, without adequate response. Then it could happen/performed again, not necessarily in the same form, but it happened/performed. It is not mandatory that it happens/perpetrated again in the same form and against the same groups and by the same perpetrators, but it can happen/perpetrated if the conditions for the prevention of genocide are not created.
For this reason, the Convention on the Prevention and Punishment of the Crime of Genocide belongs to the body of the most important international legal documents, as a legacy of human civilization and as a result of the documented experiences of the international community from genocides committed in the 20th century. The Convention should be reminded. The convention should be studied. The convention should be applied so that in the rest of the XXI century we have more people, women and children who will die of natural causes. This especially applies to the signatory states of the Convention on the Prevention and Punishment of the Crime of Genocide, which should be more determined in their efforts to be on the right side of history in seeking and achieving justice for those national, ethnic and religious groups exposed to attempts at their complete or partial destruction.
(The author is the director of the Institute for Researching Crimes Against Humanity and International Law at the University of Sarajevo)