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International Law

The Genocide Convention: An Unused but not Forgotten Standard of World Law

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9 December is the anniversary of the 1948 Convention on Genocide, signed at the UN General Assembly held in 1948 in Paris. The Genocide Convention was signed the day before the proclamation on 10 December 1948 of the Universal Declaration of Human Rights.

The two texts were much influenced by the Second World War. The crimes of Nazi Germany were uppermost in the minds of those who drafted the Genocide Convention in order to deal with a new aspect of international law and the laws of war. The cry was “Never again!”

The protection of civilians from deliberate mass murder was already in The Hague and Geneva Conventions of international humanitarian law. However, genocide is different from mass murder. Genocide is the most extreme consequences of racial discrimination and ethnic hatred. Genocide has as its aim the destruction, wholly or in part, of national, ethnic, racial or religious group as such. The term was proposed by the legal scholar Raphael Lemkin, drawing on the Greek genos (people or tribe) and the Latin cide (to kill) (1)

Genocide in the sense of a desire to eliminate a people has nearly always a metaphysical aspect as well as deep-seated racism. This was clear in the Nazi desire to eliminate Jews, first by forced emigration from Europe and, when emigration was not possible, by physical destruction.

We see a desire to destroy totally certain tribes in the Darfur conflict in Sudan that did not exist in the much longer and more deadly North-South Sudan Civil War (1956-1972, 1982-2005). Darfur tribes are usually defined by “blood lines” — marriage and thus procreation is limited to a certain population, either within the tribe or with certain other groups with which marriage relations have been created over a period of time. Thus children born of rape — considered ‘Janjaweed babies ‘— after the government-sponsored Janjaweed militias— are left to die or are abandoned. The raped women are often banished or ostracized. By attacking both the aged, holders of traditional knowledge, and the young of child-bearing age, the aim of the destruction of the continuity of a tribal group is clear.

We find the same pattern in some of the fighting in the eastern provinces of the Democratic Republic of Congo where not only are women raped but their sexual organs are destroyed so that they will not be able to reproduce.

As then UN Secretary-General Kofi Annan said at UNESCO in 1998,“Many thought, no doubt, that the horrors of the Second World War − the camps, the cruelty, the exterminations, the Holocaust – could not happen again. And yet they have, in Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time − this decade even − has shown us that man’s capacity for evil knows no limits. Genocide − the destruction of an entire people on the basis of ethnic or national origins − is now a word of our time too, a stark and haunting reminder of why our vigilance must be eternal.”

Mr Nicodene Ruhashyankiko of the Sub-Commission on Prevention of Discrimination of Minorities wrote in his study of proposed mechanisms for the study of information on genocide and genocidal practices “A number of allegations of genocide have been made since the adoption of the 1948 Convention. In the absence of a prompt investigation of these allegations by an impartial body, it has not been possible to determine whether they were well founded. Either they have given rise to sterile controversy or, because of the political circumstances, nothing further has been heard about them.”

Article VIII of the Genocide Conventions provides that “Any Contracting Party may call upon the Competent Organs of the United Nations to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”. Unfortunately no State has ever done so.

Thus we need to heed the early warning signs of genocide. Officially-directed massacres of civilians of whatever number cannot be tolerated, for the organizers of genocide must not believe that more widespread killing will be ignored. Yet killing is not the only warning sign. The Convention drafters, recalling the radio addresses of Hitler and the constant flow of words and images, set out as punishable acts “direct and public incitement to commit genocide.” The Genocide Convention, in its provisions concerning public incitement, sets the limits of political discourse. It is well documented that public incitement − whether by Governments or certain non-governmental actors − including political movements − to discriminate against, to separate forcibly, to deport or physically eliminate large categories of the population of a given State because they belong to certain racial, ethnic or religious groups, sooner or later leads to war. Therefore, the Genocide Convention is also a constant reminder of the need to moderate political discourse, especially constant and repeated accusations against a religion, ethnic and social category of persons. Had this been done in Rwanda, with regard to the radio Mille Collines perhaps the premeditated and announced genocide could have been avoided or mitigated.

For the United Nations to be effective in the prevention of genocide, there needs to be an authoritative body which can investigate and monitor a situation well in advance of the outbreak of violence. As has been noted, any Party to the Genocide Convention (and most States are Parties) can bring evidence to the UN Security Council, but none has. In the light of repeated failures and due to pressure from non-governmental organizations, the UN Secretary-General has named an individual advisor on genocide to the UN Secretariat. However, he is one advisor among many, and there is no public access to the information that he may receive.

Therefore, a relevant existing body must be strengthened to be able to deal with the first signs of tensions, especially “direct and public incitement to commit genocide.” The Committee for the Elimination of Racial Discrimination (CERD) created to monitor the 1965 International Convention on the Elimination of All Forms of Racial Discrimination would be the appropriate body to strengthen, especially by increasing its resources and the number of UN Secretariat members which service CERD. Through its urgent procedures mechanisms, CERD has the possibility of taking early-warning measures aimed at preventing existing strife from escalating into conflicts, and to respond to problems requiring immediate attention. A stronger CERD more able to investigate fully situations should mark the world’s commitment to the high standards of world law set out in the Genocide Convention.

Notes

(1)Raphael Lemkin.Axis Rule in Occupied Europe (Washington: Carnegie Endowment for World Peace, 1944)

(2)For good overviews see:Walliman and Dobkowski (Eds) Genocide and the Modern Age (New York: Greenwood Press, 1987)

F. Chalk, K. Jonassohn. The History and Sociology of Genocide (New Haven: Yale University Press, 1990)

G.J.Andreopoulos(Ed) Genocide:Conceptual andHistorical Dimensions (Philadelphia: University of Pennsylvania Press, 1994)

Samantha Power A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002)

John Tirman The Death of Others (New York: Oxford University Press, 2011)

William Schabas Genocide in International Law (Cambridge: Cambridge University Press, 2000)

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International Law

International Criminal Court and thousands of ignored complaints

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©ICC-CPI

The civil war in Donbass has been going on for more than seven years now. It broke out in 2014, following Kiev’s decision to launch a military operation against the local militia in Donbass, who did not accept the Maidan coup that had happened in February of that same year. More than 10,000 civilians were killed in the conflict.

Correspondents of the French newspaper L’Humanité Vadim Kamenka and Jean-Baptiste Malet, French historian Vincent Boulet, as well as a MEP and a member of the Spanish Communist Party Willie Meyer took part in the international conference “Topical Issues of Human Rights Violations in Donbass.”

Moderating the conference, organized by the Society of Friends of L’Humanité in Russia (the French leftist newspaper’s Russian office), was the head of the interregional public organization “For Democracy and Human Rights” Maxim Vilkov.

The conference was also attended by the deputy foreign minister of the Lugansk People’s Republic Anna Soroka, human rights activist Yelena Shishkina, director of the Society of Friends of L’Humanité Olesya Orlenko, and head of Donetsk National University’s department of political science Artyom Bobrovsky.

The participants discussed numerous cases of human rights violations by the Ukrainian security forces and paramilitary units in the course of the civil war in Donbass. The left-minded European participants paid special attention to the fact that none of the 6,000 complaints about the actions of Ukrainian security officials and nationalists had actually been taken up by the European Court of Human Rights (ECHR).

Small wonder too, since the atrocities committed in Donbass immediately bring to mind the Spanish Civil War of the 1930s when leftwing antifascists from across the world fought supporters of fascists and Nazis. Let’s not forget that even DW (foreign agent) admits that the share of neo-fascists in Kiev’s Azov regiment is very significant.

The participants called upon the ECHR to pay attention to the non-investigation of crimes committed in Donbass.

Human rights activists and public figures from Russia, France and the unrecognized republics of Donbass called on European international human rights organizations to pay attention to the failure to investigate crimes committed during the armed conflict in Ukraine. This is stated in the statement, which was sent to European international organizations after the conference.

The statement also calls attention to obstacles created to prevent citizens from filing applications to investigate crimes, as well as to attempts to ignore pertinent complaints from international bodies.

The latter, according to the authors of the statement, is especially important since “10,650 applications have so far been submitted to the ECHR concerning violations of citizens’ rights during the civil armed conflict in Ukraine. Of these, 8,000 come from Crimea and Donbass, including 7,000 from Donbass alone. Moreover, 6,000 are complaints made against Ukraine proper. However, during the past seven years, not a single complaint pertaining to the conflict in Donbass has been considered.”

Human rights activists called on the ECHR and the International Criminal Court (ICC) “to ensure that the crimes committed in Donbass are investigated in full compliance with the ECHR and ICC charter, as well as to bring pressure to bear on the political leadership of Ukraine to fulfill its obligations to protect the rights of its citizens.”

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International Law

Crime of Ecocide: Greening the International Criminal Law

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In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.

The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.

Definition of the crime of ecocide

The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.

It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.

Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.

It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.

The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.

Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.

Way Forward

Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.

Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.

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International Law

Syrian Refugee Crisis: A Critical Analysis Concerning International Law

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Women and children at the the Turkey-Greece border at Pazarkule. © IOM/Uygar Emrah Özesen

The contemporary refugee law is primarily a product of the 20th century following the Second World War and the subsequent post-war refugee crises. The 1951 Refugee Convention on the Status of Refugees and its 1967 Additional Protocol are the noteworthy legal regimes. Although the definition of Convention 1951 continues to be the dominant definition, the regional treaties on human rights have continuously amended the definition in retort to changing circumstances and crises. The gap in the convention of 1951 is that it does not extensively define how the state parties must decide if a person shall compile with the definition of the refugee. The main objective of the modern refugee regime is that; at national and regional level, the individuals that flee their country due to threat of persecution must be protected under all circumstances.

The Civil War in Syria has lead many Syrians flee their own homeland where millions have fled and many have been internally displaced. Many of these existing refugee groups, if not most, live in desperation implying that refugees’ assistance and protection needs be addressed in host countries. States bear moral and ethical obligation towards ensuring the safety and protection of the individuals fleeing Syria. Western countries have also undermined and jeopardized their international commitment of protecting refugees’ human rights. The Regional Response Plan 2014 of United Nations High Commissioner for Refugees (UNHCR) is a $4.2 billion aid program for Syria. The plan mainly focuses on the financial assistance of the countries hosting Syrian refugees; where this assistance is certainly important; it does not seem to be an approach more equitable to share responsibility for refugees. The refugee convention and legal framework under International Law may be helpful in dealing with swift management of ongoing Syrian crisis. The study recommends for a larger responsibility to preserve refugees’ human rights and provide long term solutions through international law regimes with proper implementation mechanism.

REFUGEES

Under the International refugee law, Article 1(A)(2) of the 1951 Convention states that

“The term ‘refugee’ applies to any person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country.”

As it was in the context of European Refugees escaping persecution prior to January 1, 1951, the concept had geographical and chronological constraints. Article (1)2 of the 1967 Protocol on Refugee Status abolished those temporal and geographical constraints.

PRINCIPLE OF NON-REFOULMENT AND FREEDOM OF MOVEMENT UNDER THE 1951 CONVENTION

Non-Refoulement on the whole mean non-return: it is not doable for individuals or foreign nationals to be returned by the host State to the country or place where they could be tormented, tortured or treated inhumanly and degradingly, in addition; where their life, liberty and freedom is threatened. The non-refoulement principle is the fundamental pillar of international law on refugees. It is an inherent component of 1951 Convention as regarded as a Customary International Law applied on every State irrespective of their ratification of the convention.

Article 26 of the Convention of 1951 states that the host States shall allow refugees to choose and move freely where they have taken refuge. Article 28 states that they must be provided with legal documents that would permit them to move freely anywhere wound their country of residence. The Freedom of movement is very important particularly in countries that host huge influx of refugees and have confined them in a particular area or refugee camps and have posed restrictions on their basic rights. The 1951 Convention also protects much other refugee rights for example educational rights, right of employment, justice and property rights.

The rights however are protected under the 1951 Convention and other International Treaties on the rights of refugees and more broadly the Human Rights but the refuges in their host countries are denied of their these basic rights and are often regarded as a national security risks to the state.

BACKGROUND OF THE SYRIAN REFUGEE CRISIS

Syria’s civil war has its origins in colonialism and the Iraqi War. The ethnic tensions and ongoing civil crisis date back to 2000 elections when Bashar Al Assad came in to power and the rising of Islamic State of Iraq and Syria (ISIS). Pro-democracy uprisings erupted in 2011 in response to persecution that were occurring in the Assad’s regime; the uprisings turned into a civil war. Syria by 2012 was entirely engulfed in that civil war and many had died by the end of 2015 by their own government. ISIS was part of the rebel forces, which created an atmosphere of terror. Civilians were subjected to transgressions; public executions and amputations became rampant. Religious minorities were also under great threat. In August 2013, a chemical warfare inflicted on its own people; as a result millions of Syrians were forced to flee their homeland and take hostage in the neighboring countries. Majority of them around 90% fled to Turkey, Jordan and Lebanon (neighboring countries) and around 10% made their way to Europe. While million fled the country, many thousands other are internally displaced and are still under great sufferings. According to a report of UN, approximately 70% of the Syrian population lacks basic necessities i.e., access to safe drinking water, extreme poverty and many children do not even go to school.

RECEIVING COUNTRIES AND THEIR COURSE OF ACTION

Despite their dire situation, Europe is hostile to Syrian refugees. They have put restrictions on their freedom of movement curtailing their rights granted by the international legal regimes and conventions. In Turkey, the refugees are often detained by the authorities and are forced to leave the country.  The Turkish authorities had flagrantly violated international laws; refugees are regarded as a security risk.  The ongoing conflict and instability in Syria have exacerbated the situation, forcing people to flee their homes and seek refuge in neighboring countries.

The existing literature includes number of records of International laws and the rights and obligations on refugees as well the host states but focus has been laid upon the crisis rather than the management of the crisis. In case of Syrian refugees, the existing literature highlights the historical context and ongoing situation of the crisis but has been unable to come to its solution with the help of International laws.

CONCLUSION

The 1951 Refugee Convention states that states should facilitate refugees’ naturalisation and assimilation to the greatest extent possible. States are obliged to provide legal documents to the refugees for the purpose of seeking asylum and obtaining the official status of refugees. The Refugee Convention seeks to require that the refugees must receive same public assistance as that of the nationals of the country and must be provided with financial assistance, property rights, and right of education and employment.  Both the 1951 Refugee Convention and the 1967 Additional Protocol are international treaties that mean they are binding on the signatories however the treatment of refugees and asylum seekers are considered to be a part of customary international law that is that the states that have not signed or ratified the conventions must also protect these rights of refugees. In the Syrian refugee crisis, many states have avoided their responsibilities and violated international laws relating to refugees by barring refugees from entering their respective territories and by claiming that the state has no jurisdiction over them by choosing the non-entrée approach keeping them apart of refugee law technically. However, in practice they do not meet the duties of the treaty.

To conclude, the essence of the research is that Burden Sharing is an as an intrinsic component of the refugee protection legal system framework and is critical and important in resolving the Syrian refugee crisis. Burden sharing is basically the distribution of responsibilities. In simple words it refers that specific arrangements must be made for the purpose of physical distribution of refugees. It is one of the main principles of International Refugee Regime. The documented origin of burden-sharing can be found in the preamble of the 1951 Convention. When addressing the Syrian refugee crisis in terms of international laws relating to refugees, it is pertinent to know that the existing legal frameworks in the countries hosting huge influx of the refugee crises do not incorporate many of the basic obligations of international law in relation to the rights and obligations of refugees, because none of these countries i.e., Turkey, Lebanon, or Jordan have ratified the 1951 Refugee Convention and the 1967 Additional Protocol. Syrian refugees have many rights that have been granted to them by the international conventions however, they are denied of their rights. This has made them vulnerable and entirely dependent on the financial aids and has increased illegal means of employment. The refugees are marginalized minorities who are facing troubles in integrating in the receiving countries.

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