Current Development of the Concept of Genocide in the Jurisprudence of the Ad Hoc Tribunals and Its Possible Further Impact on the Practice of the International Criminal Court

Abstract: Though the practice of genocide traces its roots back to the atrocities committed in the ancient times, however, the international community has shown its reluctance to acknowledge the existence of that horrific crime. The impunity for the Armenian genocide perpetrated by the Young Turks of Ottoman Empire in 1915 had a significant impact on Adolf Hitler who referred to the Ottoman killings of Armenians in his political speeches justifying Nazi's brutal policy. His words ''who, after all, speaks today of the annihilation of the Armenians?'' <&semicwww.genocide1915.info/quotes>&semic, retrieved on January 14, 2008. served as a guidance for all his followers to act brutally and without mercy. The scale of barbarous atrocities committed by Nazis during the World War II shocked the whole Europe. Consequently, reluctance was overcome by the desire to punish those responsible for grievous crimes. However, the Nuremberg and Tokyo trials following the World War II, often seen as the victor's justice over those defeated, did not acknowledge the crime of genocide regardless existing overwhelming evidence on genocide being perpetrated in large scale. Though the crime of genocide had not been explicitly recognized by the Nuremberg and Tokyo International Military Tribunals, the idea of the possibility to render international justice influenced the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter - Genocide Convention) The Genocide Convention, 78 UNTS 277, opened for signature on December 8, 1948 and entered into force on January 12, 1951. . Nevertheless, the Convention being in force had been dormant more than forty years and thus the rules applicable to the crime of genocide were not applied due to the non-existence of any international criminal tribunal having jurisdiction over the crime of genocide and non-interference principle to the sovereignty of states. It was believed that such horrific events that took place during the World War II would never be repeated again. Nevertheless, a temporary return to the past has been witnessed by the entire world community as a striking 'déjà vu' during the Yugoslav war and the Rwandan conflict. Ad hoc tribunals The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations (UN) established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their alleged perpetrators. <&semicwww.un.org/icty>&semic retrieved on January 14, 2008. The International Criminal Tribunal for Rwanda (ICTR) is an international court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide. <&semic69.94.11.53>&semic retrieved on January 14, 2008. , created as a challenging response to the gross human rights violations in Yugoslavia and Rwanda, have proved to play a key role in the establishment of the international criminal justice. The crime of genocide has been construed and applied extensively by both ad hoc tribunals. The crime per se turned out to be applied as an effective tool to punish those who aimed at the destruction of a group simply on the basis of its ethnicity, and the concept of genocide stepped aside from being a purely legalistic non-applicable provision prior to the creation of the ad hoc tribunals. Solid jurisprudence has been developed by the ad hoc tribunals in regard to actus reus of acts constituting the crime of genocide. Some progressive developments have been witnessed in the international criminal law such as singling out rape and sexual violence as a genocidal act. Historically the genocide has been seen in the light of the Holocaust committed by Nazi regime and thus it has been associated primarily with an organized mass killing campaign. However, the case law developed by the ad hoc tribunals has shown that genocide is not only about killings, it has a wider scope, especially in the era when the crime has taken various subtle forms. The chambers of the ad hoc tribunals have deliberated on mens rea of genocide primarily focusing on the interpretation of dolus specialis&semic other acts of genocide such as conspiracy, incitement to commit genocide, complicity in genocide. It is just a short overview of the hard work being conducted by the ad hoc tribunals. Though the ad hoc tribunals are planned to complete their work in 2010 ICTY Completion Strategy, S/2007/469&semic ICTR Completion Strategy, S/2007/323, the precious experience has already influenced and will definitely further influence the work of the ICC The International Criminal Court was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. The court came into being on July 1, 2002 - the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force - and it can only prosecute crimes committed on or after that date. As of October 2007, 105 states are members of the Court. A further 41 countries have signed but not ratified the Rome Statute. <&semicwww.icc-cpi.int>&semic, retrieved on January 14, 2008 serving as a permanent international criminal justice mechanism. The genocide case might be brought before the ICC in the future and thus the Court would need to look into the jurisprudence developed by its 'predecessors' adopting positive experience and avoiding the pitfalls. Although ''the fact of genocide is as old as a humanity'' Jean-Paul Sartre, ''On Genocide'', in Richard A. Falk, Gabriel Kolko and Robert Jay Lifton, eds., Crimes of War, New York: Random House, 1971, pp. 534-49, at 534., current developments of the crime are necessary to be studied carefully, for the appropriate punishment for the crime of genocide is serving as the deterrent effect to criminals contemplating to commit the crime and thus preventing the occurrence of the crime in future. Successful prosecution for the crime of genocide would prevent perpetrators to commit such a crime and help to punish those responsible for the crime of genocide leaving no ground for impunity. The work poses many important questions and dilemmas that are of the great concern to both academicians and practitioners in the field of the international criminal law. What is the crime of genocide? What kind of the actus reus standard is to be applied while qualifying the crime of genocide? What does suffice the mental element of the crime? What principles and standards are to be relied upon while defining and qualifying conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide? How is the current legal development of the crime of genocide in jurisprudence of the ad hoc tribunals would possibly affect the practice of the ICC? Will the ICC being not bound by the case law developed by its predecessors (apart from the case law that have become the part of the international customary law) consider the developed jurisprudence of the ad hoc tribunals on the crime of genocide? Therefore, the study provides in depth analysis of many important legal issues covering the legal definition of the crime of genocide as formulated in the Genocide Convention, ICTY, ICTR Statutes, and the Rome Statute&semic the material element of the crime (actus reus), the mental element of the crime (mens rea), other punishable acts of genocide, including, inter alia, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity of genocide, applicability of concepts of the joint criminal enterprise (hereinafter - JCE) and command responsibility to the crime of genocide, and the impact of the developed concept of genocide (extensively discussed in the Chapter I and II of the thesis) on the further practice of the ICC. By examining the legal toolkit and jurisprudence of the ad hoc tribunals, the work concludes with the main challenges and contradictions facing the judges of the ICC who will interpret and apply the law and national jurisdictions who agreed to be included within the jurisdiction of the Court.