Wednesday, December 10, 2008

Impressions of the 60 years Genocide Convention





Impressions of the 60 years Genocide Convention

On Sunday 7 and Monday 8 December, The Center for Holocaust and Genocide Studies in Amsterdam, the Amsterdam Center for International Law and the Peace Palace Library organized a conference in The Hague to mark the 60th anniversary of the Genocide Convention. At the conference several legal and historical scholars gave their historical and legal viewpoints on the concept of genocide, the 1948 Genocide Convention and the legal definition of genocide. Several panels dealt with specific aspects of genocide in a legal, historical and political context.

Genocide is an emotionally laden concept which confronts us with the victims’ traumatic memories of atrocious events, the need for transitional justice and the efforts of the world community to cope with the far-reaching consequences of genocide. There has been felt a strong need for the prevention of the crime of genocide since World War II. However, despite the efforts to prevent genocide, as history has shown us, acts of genocide have still been committed since the Holocaust. Three times the international criminal courts (i.e. the Nuremberg Tribunal, the ICTY and the ICTR), have established that genocide had been committed. Genocide is a concept which is not easy to fathom. The historical and the legal perspective of genocide form complementary fields of study. An interdisciplinary study of genocide can help to overcome the gap between a legal definition of genocide based on the law and jurisprudence, and non-legal, popular perceptions of genocide.

Dr. Wichert ten Have from the Center for Holocaust and Genocide Studies (Amsterdam, The Netherlands) opened the conference. Former Dutch Minister of Defense, Prof. dr. J. Voorhoeve, gave an introduction on genocide and the legal developments concerning genocide. Even more important than prosecution, arrest and trial of suspects of genocide is the prevention of genocide. According to Voorhoeve, internationally protected safe areas supported by the UN and a relevant coalition of main military powers may help to reduce the risk of genocide and crimes against humanity and it may help to save the lives of civilians - now and during future armed conflicts. The International Criminal Court has also been of growing importance for the prevention of war crimes, crimes against humanity and genocide. Finally, Voorhoeve stressed the importance of the doctrine of the responsibility to protect (R2P). The non-binding doctrine of R2P is in fact a specification of the general responsibility of governments to take care of the needs of its population, safeguarding basic human economic rights as it has been laid down in human rights treaties.

Dr. Luis Moreno-Ocampo, Chief prosecutor of the ICC gave a presentation about the role of the ICC to punish and prevent international crimes, and the need to strengthen a network of individuals and organizations to work towards the prevention and punishment of acts of genocide. The Genocide Convention has served as a visionary and founding text for the ICC. The Rome Statute forms the foundation of a global criminal justice system which is based on complementarity and cooperation. Its goal is to end the impunity for the most serious international crimes and to contribute to its prevention.

Moreno-Ocampo stated how the past genocides (the Holocaust, Srebrenica, Rwanda) have taught us an important lesson. The situation in the Darfur holds a current challenge for the international community and the ICC in particular. The Darfur case presents an opportunity for the international community to establish a new framework to protect individuals. From March 2003 to the present in the Darfur terrible crimes and genocide have been committed and are still being committed. Fear, rape and hunger are the main weapons of the current phase of genocide in Darfur. Moreno-Ocampo warns us that massive crimes are not just a moral problem but that they cross borders, destabilize regions and affect world security. The ICC creates the possibility of collective action against the massive crimes committed in Darfur but international cooperation of states and multilateral institutions is also needed to create the conditions to implement arrest warrants and to adjust old conflict management strategies to the current state of affairs. Moreno-Ocampo stated: “ ‘Never again’ should no more be a promise: it is time to transform it into a reality. Darfur is our test”.

Dr. Luis Moreo-Ocampo, keynote speaker (“Combating Genocide and Other Massive Crimes. The ICC’s Contribution”) , chief prosecutor of the ICC, The Hague, the Netherlands.

Keynote speaker Pr.dr. Wiliam Schabas clarified the difference between genocide and crimes against humanity. Both notions were created within a month of each other. The judges of the Nuremberg Tribunal an international criminal tribunal created by the four great powers after World War II, held on to the notion ‘crimes against humanity’ to describe the crimes committed by the Nazis. Raphael Lemkin, the creator of the Genocide Convention, thought that this notion was too limited: it only dealt with crimes committed during wartime and war criminals. It was Lemkin’s intention to create an international legal instrument that also could punish and prevent genocide during times of peace. Therefore, a new description of crimes was needed to fill the gap of impunity. The description of the crime of genocide as proposed by Lemkin is narrower than the notion of crimes against humanity. Genocide refers to the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Crimes against humanity concern any civilian population. Genocide and crimes against humanity could be considered twins, separated in the forties of the twentieth century. According to Schabas, there is little legal distinction between the two legal concepts nowadays. There are however some other non-legal distinctions. For example there is the debate whether genocide should be considered a crime of a higher order than crimes against humanity. According to Schabas, genocide concerns more serious crimes than crimes against humanity. Another problem concerns the fact that there exists a distinction between a colloquial concept of genocide and the legal concept of genocide. Further, Schabas discussed the problem of Holocaust denial versus the constitutional protection of freedom of speech. Most civilized states take position concerning debates on genocide; they pose some limits on freedom of expression. Finally Schabas gave his opinion on the difficulties of the interpretation and prosecution of genocide today.

Prof.dr. William Schabas, keynote speaker (“Genocide and Crimes Against Humanity: Clarifying the Relationship”), director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where Prof. Schabas also holds the chair in human rights law.

Pr.dr. Marrus gave a keynote speech about consequences of the Holocaust and the victims' search for restitution and restorative justice. Restitution and seeking justice for genocide are a novelty in history, related to the Genocide Convention. The massive human rights violations and grave historic wrongs of the Holocaust had a great affect not only on its victims but also on later generations. More than half a century after the genocide of the Second World war, there has been a crusade for restorative justice. Efforts were made to resolve issues and to seek for reparation of historic wrongs. For instance, art restitutions and claims for compensations for war damages. For victims, seeking justice for grave historic wrongs years afterwards is a challenge. Victims do not all think alike but some generalizations are made. Marrus describes that for victims of the Holocaust, restitution is not just about financial restitution, about money, but about dealing with the memories of atrocities. “It is really about justice”. Justice can be understood in several ways. For example as a subjective concept that has to do with family situations or with a people or a historic past. Holocaust restitution is seen as an intent to “peel back the veil of time and to expose the truth”. Holocaust victims can search for a way of dealing with the atrocities and the suffering by trying to find acknowledgement, understanding, restoration of collective memory of the victims. It is about honoring the past, about the undoing of the scandal of victimization, the sense of abandonment. Memory can be considered as a bringing to imaginative life of what has been suffered, not as the bringing to life of what has brought about the suffering.

Marrus asserts the distinction between history and the memory of victims. Memory is the product of an effort to apprehend the past of individuals and groups. It is a mental representation of the past and consists only of a partial report of the past. History on the other hand is analytic, can be reconstructed and is objective. Restorative justice is a continuous effort, not a one time quest of dealing with grave violations committed in the past.

Prof.dr. Michael Marrus, keynote speaker (“Seeking Justice for Genocide. Holocaust-Era Restitution in the 90s”). Professor Marrus holds a chair in law (Faculty of Law, University of Toronto) and he is the Chancellor Rose and Ray Wolfe Professor Emeritus of Holocaust Studies in the Department of History, University of Toronto.

Raphael Lemkin(24 June 1901 - 28 August 1959)


At the conference scholars stressed the importance of the education on genocide. One panel discussed the importance of education of genocide. Besides academic study arts and literature can also contribute to the education of genocide and stimulation of a discussion about the subject. Another panel performed the entertaining and informative one-act play If the Whole Body Dies of Em. prof. dr. Robert Skloot. Through the one-act play the visitors of the conference were offered an impression of the last day of the life of Raphael Lemkin, the founding father of the 1948 Genocide Convention and of his thoughts and emotions about his achievements and his mission to stop genocide and to ensure the adoption of the 1948 Genocide Convention. The play was performed by Robert Skloot himself (as R. Lemkin) and others.

The speakers of the Conference also paid attention to the disclosure of the archives of the ICTY and the ICTR and the role these archives can play in providing further material for public information, research and education on genocide. Josias van Aartsen, Mayor of The Hague spoke at the conference about The Hague International Legal Heritage Center. The city of The Hague could be considered as the legal capital of the world, the seat of many international tribunals and international legal institutions. Mayor van Aartsen stressed the wish of the city of The Hague to document the archives of the ICTR and the ICTR in The Hague and to store these important archives here as well. This however depends on the decisions which need to be taken by the Dutch Government.

During a session about the defense of individual perpetrators of genocide, members of the panel gave their views on the difficulties and problems that occur during (the preparation of a) trial. Alleged perpetrators will most likely be stigmatized and this might implicate that a defense lawyer has to work even harder to prove the innocence of the client.

The conference dealt with a range of aspects of genocide from a legal and historical context - interesting and informative for lawyers, legal scientists, historians, students and others who are interested in genocide studies and the legal concept of genocide.

A publication of all lectures and presentations given at the 60 Years Genocide Conference will be issued in the autumn of 2009.

Links


Relevant literature available at the Peace Palace Library

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