Why China’s Treatment of the Uighur Minority Warrants an Investigation into Acts of Genocide

Inés Fernández Gallego, Utrecht University, The Netherlands

Inés Fernández Gallego holds a Law degree from the University of Valencia and an LLM in Public International Law from Utrecht University, specialising in international human rights law.

Abstract

In its Drélingas v. Lithuania judgment, the European Court of Human Rights ruled that the Genocide Convention can be raised when the aggressor’s conduct that falls within the scope of Article II of the Genocide Convention is carried out with an intent to physically destroy a part of a national-ethnic group that is composed of its most active and prominent members, regardless of their numbers, given their essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group. Whilst China’s treatment of the Uighur minority has been extensively studied from the perspective of ‘cultural genocide’, there is evidence suggesting that some acts carried out against certain Uighur figures, amid a wider context of political and cultural oppression, resemble those encompassed in Article II GC. If true, China’s actions could amount not only to cultural genocide, but also to genocide (within the scope of the Genocide Convention), due to the existence of certain key similarities between this case and the situation in the Drélingas v. Lithuania case.

Introduction

Since the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention or GC) entered into force in 1951, international courts and tribunals have interpreted its provisions in a dynamic and evolutive manner. The European Court of Human Rights’ (ECtHR) Drélingas v. Lithuania judgment, in 2019, was the first time that a supranational court ruled that the Genocide Convention can be raised when the aggressor’s conduct that falls within the scope of Article II GC is carried out with an intent to physically destroy a part of a national-ethnic group that is composed of its most active and prominent members, regardless of their numbers, given their essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group (para. 103).

China’s treatment of the Uighur national minority has been extensively studied from the perspective of ‘cultural genocide’, which is not recognised as a form of genocide under international law. However, credible and widespread reports show that some acts carried out against politically and culturally active and prominent Uighur individuals, amid a wider context of political and cultural oppression, resemble those encompassed in Article II GC. Whilst, if true, China’s actions could amount to cultural genocide, some similarities between this case and the situation in the Drélingas judgment suggest that they, too, could fall within the scope of the Genocide Convention.

The specific aim of this paper is not to prove the existence of a genocide against the Uighurs. Instead, this paper argues that even if China lacked an intent to physically destroy the entire national-ethnic group, this should not bar the international community from investigating whether acts of genocide are taking place. In putting forward this argument, the paper starts by describing the legal and political background to the Genocide Convention, followed by an explanation of some key terms found in Article II GC’s definition of genocide. The paper then analyses the role given to the Lithuanian nation’s representatives in the Drélingas judgment. Following this, it examines some key background information to the Uighurs’ situation, before laying out the reasons why such situation warrants an investigation into acts of genocide. In this regard, the paper first examines whether the Uighur minority is among the groups enumerated in Article II GC, and therefore protected. Secondly, it lays out and evaluates the evidence suggesting that acts described in Article II GC are being carried out against the Uighurs, through a series of policies. Lastly, it assesses whether the intent of such policies is genocidal. The paper concludes that, whilst it is clear that the Uighur are undergoing a cultural genocide, the international community should thoroughly investigate whether acts of genocide, within the meaning of the Genocide Convention, are also occurring.

The Journey to the Genocide Convention

The term ‘genocide’ was initially coined by Raphael Lemkin, who is colloquially known as the ‘Father of the Genocide Treaty’ due to his instrumental role in the drafting of the Genocide Convention (Hamilton, 2010, p. 643; Krstic, ICTY [Appeal] para. 10). The concept derived from the Greek genos, meaning ‘race’ or ‘tribe’, and the Latin suffix cide, which means ‘killing’ (Lemkin, 1944, p. 79). In his 1944 book Axis Rule in Occupied Europe, Lemkin defined genocide as “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves” (p. 79).

Subsequently, lobbied by Lemkin and passed unanimously, the UN General Assembly Resolution 96 of 11 December 1946, titled The Crime of Genocide, elevated the term to an international crime. Resolution 96 spoke in terms of the protection of human groups, specifically mentioning “racial, religious, political and other groups”. Furthermore, in 1947, in an article for the American Journal of International Law, Lemkin wrote that the term ‘genocide’ arose from the need to formulate a legal concept that described the destruction of human groups (p. 147). In the drafting of the subsequent Genocide Convention, however, fears that a broad definition of genocide would discourage states from ratifying the convention led to the drafting of a definition of genocide much narrower than that originally envisioned in Resolution 96 (Hamilton, 2010, p. 645; Nersessian, 2010, pp. 104 ff.). In this regard, “political and other groups” were omitted from the Genocide Convention, which was eventually adopted unanimously by the UN General Assembly on 9 December 1948.

For anyone familiar with the preparatory works of the Genocide Convention, it is hard to deny that the exclusion of political groups from protection under Article II had political undertones (UN GAOR 6th Comm. 3rd Session A/760/Corr. 2, p. 834; Schabas, 2000, pp. 139-40). In the late 1940s, the Soviet Union was heavily involved with the ‘Sovietisation’ of Eastern Europe. In pursuing these policies, Soviet forces had carried out, in recent years, numerous massacres to eliminate political opposition throughout Eastern Europe (Nersessian, 2010, p. 106). In that context, the Soviet Union would not have signed a treaty that covered political groups, as its own recent policies would have inevitably been questioned (Nersessian, 2010, p. 106). In the polarised post-World War II world, many other states would likely have followed the Soviet Union and also refused to sign the treaty. Therefore, while the records of the drafting process show that most states involved valued political groups as worthy of the same protection against destruction as national, ethnic, racial and religious groups, and initially hoped and voted for their inclusion in the Genocide Convention (see for example: UN Economic and Social Council, 1948, France, USA, China and Lebanon records), they eventually prioritised achieving a wider consensus sooner (Nersessian, 2010, p. 106).

The Crime of Genocide under International Law

In broad terms, genocide requires its perpetrators to carry out a certain prohibited conduct with an “intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such” (Article II GC).

The objective element of genocide has two dimensions. Firstly, it involves the carrying out of certain prohibited conducts; secondly, it relates to a specific targeted group. The conducts are: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group (Article II GC). Furthermore, the targeted group must be a national, ethnical, racial or religious group (Article II GC).

Likewise, the subjective element has two requirements. Firstly, it requires the criminal intent required to commit the specific offence, such as the intent to kill in the case of the act contemplated in Article II (a) GC (Darfur Report, para. 491). Secondly, it requires the perpetrator to have an aggravated criminal intent (dolus specialis): to destroy the group in whole or in part. In other words, the perpetrator has to consciously want the prohibited conduct to result in the destruction, in whole or in part, of the group as such, and the perpetrator has to know that the conduct will destroy, in whole or in part, the group as such.

The concept ‘in whole or in part’ refers to the perpetrator’s mens rea, not to the result (Schabas, 2000, p. 277). Following a quantitative approach to the term ‘in part’, a part of a group may fall within the scope of the Genocide Convention if it is substantial (numerically). The qualitative approach, on the other hand, entails that the destruction may target only one portion of the group, regardless of its size, because the perpetrators view its destruction as sufficient to destroy it in its entirety. Whilst judicial practice has traditionally placed greater importance on the substantiality requirement, it accepts a qualitative approach when the destruction of the targeted part would compromise the continued existence of the entire group.

The term ‘as such’ implies that the entity targeted is the group, not the individual (Akayesu, ICTR, para. 522; Kayishema and Ruzindana, ICTR, para. 99). So, destroying the individual is a means for achieving the ends of destroying the group: thus, the Genocide Convention protects the right to life of certain groups, ‘as such’ (Krstic, ICTY [Trial] para. 553). This trait distinguishes genocide from persecution, a crime against humanity, where the victims are targeted because of their membership in a specific group but the perpetrator does not necessarily seek to destroy the group as such, only (in some cases) the individuals targeted (for comparison, see Article 7 (2) (g) Rome Statute).

It can therefore be derived that international law only contemplates as genocide “the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups” (Lemkin, 1944, p. 79). In other words, it only classes as genocide the ‘physical’ or ‘biological’ destruction of a protected group. In contrast, the concept of ‘cultural genocide’ can be defined as the “disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups” (Lemkin, 1944, p. 79). In line with the above, the conduct known as cultural genocide is not recognised as a form of genocide by international law.

How the European Court of Human Rights’ Drélingas v. Lithuania judgment helped clarify some key differences between genocide and cultural genocide: the role of representatives

The case before Lithuanian courts

The Drélingas v. Lithuania judgment was the first time an international court ruled that the Genocide Convention can be raised when the aggressor’s conduct that falls within the scope of Article II (a)-(e) GC is carried out with an intent to physically destroy a part of a national-ethnic group composed of its most active members and representatives, regardless of their numbers, given their essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group.

In this case the applicant, Stanislovas Drélingas, was a former member of the Ministry of State Security (MGB) and of the Komitet Gosudarstvennoy Bezopasnosti (KGB) during the Soviet occupation of Lithuania (Drėlingas v. Lithuania, paras. 20-1). In 1956 he participated in the arrest of Vanagas, a leader of the Lithuanian anti-Soviet resistance (Drėlingas v. Lithuania, para. 8), and his wife Vanda, who was a Lithuanian partisan and liaison person of the partisans in the Dainava Region (Drėlingas v. Lithuania, para. 16). Following the arrest, Vanagas was killed and Vanda was sentenced to deportation in Siberia (Drėlingas v. Lithuania, paras. 29-32). Drélingas was tried in 2014 and convicted as an accessory to genocide under Article 99 of the Lithuanian Criminal Code (LCC), which came into force in 2003 (Drėlingas v. Lithuania, para. 33). This provision, enacted after Lithuania gained independence, expands the list of protected groups provided for in the Genocide Convention by including political and social groups in addition to national, ethnical, racial and religious groups.

The case reached the Lithuanian Supreme Court (LSC). Because a conviction for genocide can only be applied retroactively in accordance with its definition under international law (Vasiliauskas v. Lithuania, para. 184), the issue at stake was whether the applicant’s conduct constituted genocide under international law at the time of the facts. To determine that, the LSC had to decide whether the scope of the Genocide Convention extended to Lithuanian partisans, consisting of the members of the Lithuanian resistance to Soviet occupation, their liaison persons and their supporters (Drélingas v. Lithuania, para. 103), including Vanagas and Vanda.

In its judgment, the LSC defined the Lithuanian nation in terms of ethnicity and nationality. In this sense, an ethnic group was “a community of persons with a common origin, language, culture, and self-identity”, while a national group was “a historically developed community of people belonging to a certain nation, formed on the basis of language, territory, socioeconomic life, culture, national self-identity and other common characteristics” (LSC decision, para. 18 in Drėlingas v. Lithuania, para. 50). As such, Lithuanians were (or the Lithuanian nation was) a ‘national-ethnic group’, protected by the Genocide Convention. Meanwhile, Lithuanian partisans who engaged in armed resistance to Soviet occupation were described as a ‘national-ethnic-political group’ (LSC decision, para. 13 in Drėlingas v. Lithuania, para. 50).

Moreover, the LSC determined that Lithuanian partisans, as a distinct entity, formed, not only a substantial, but also a qualitatively significant part of the Lithuanian national-ethnic group. In this regard, the LSC found that the destruction of this distinct entity by Soviet forces “had the clear aim of influencing the demographic changes of the Lithuanian nation and its very survival, (…) facilitating the sovietisation of the occupied Lithuania” (LSC decision, para. 25 in Drėlingas v. Lithuania, para. 51). In other words, the LSC ruled that destroying the Lithuanian ‘national-ethnic-political group’ would result in the destruction of the Lithuanian national-ethnic group. This was not only because they represented a large number of people (around 150,000) and a substantial proportion of the population of 2.3 million but also because they played an essential role in ensuring the existence of the Lithuanian nation (LSC decision, paras. 26 and 29-30 in Drėlingas v. Lithuania, para. 52).

Consequently, the LSC upheld Drélingas’ conviction and he appealed against it before the ECtHR under Article 7 of the European Convention on Human Rights (ECHR) – “no punishment without law”. Specifically, he complained that the wide interpretation adopted by Lithuanian courts departed from the scope of genocide as laid down in international law, and therefore his conviction breached the principle of non-retroactivity (Drėlingas v. Lithuania, para. 76).

The ECtHR’s decision

In its 2019 judgment, the ECtHR found that there had been no breach of Article 7 of the ECHR. It ruled that, because they had played an essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group, the destruction of Lithuanian partisans fell within the scope of the Genocide Convention (Drélingas v. Lithuania, para. 103). At first sight, this reasoning may seem to be based on the notion of cultural genocide.

However, whilst the Genocide Convention only prohibits the commission of ‘physical’ as opposed to ‘cultural’ genocide, this refers to the nature of the acts but not necessarily the intent (Krstic, ICTY [Appeal], Judge Shahabuddeen dissenting opinion ‘DO’, paras. 53-4). It can be derived from the ECtHR’s judgment in Drélingasthat the status of national-ethnic groups in the Genocide Convention has two dimensions. Firstly, any nation is protected. Secondly, a nation’s active and prominent figures can fall under the scope of the protected ‘part’ of the group, regardless of their numbers, when they are essential in protecting the nation’s culture and national identity and self-awareness (Drélingas v. Lithuania, para. 103).

Parting from the LSC’s definition of national and ethnic groups whereby a protected group (in this case the Lithuanian nation) is essentially formed as a result of the group identity of its members, surely, eradicating this group identity results in the destruction, physical and otherwise, of the group. In other words, if the group exists because of its members’ self-perception of belonging to the group, should this self-perception cease to exist the group would consequently cease to exist. Because the group existed due to a set of shared cultural features, it can be destroyed by putting an end to these cultural attributes. This idea seems to echo Rafter (2016, pp. 24-5), who described genocide as the destruction of the social or the physical characteristics that make up a group, as well as the Father of the Genocide Treaty himself (Lemkin, 1944, p. 79). Thus, by adding that a socially constructed group can be destroyed by destroying the group’s sense of identity, this line of thought builds upon the ‘theory of imagined identities’. This theory argues that all group identities are socially constructed and entirely subjective (Verdirame, 2000, p. 592 in Darfur Report, para. 499) rather than being physical, natural or hereditary, which is the argument posed by some proponents of objective approaches to group identity (see for example Akayesu, ICTR, paras. 512-4).

Judge Shahabuddeen made an interesting point in this respect in his dissenting opinion in Krstic’s appeal judgment (ICTY, Case No. IT-98-33-T, 2 August 2001), regarding the genocide in Srebrenica. He argued that the proposition that the intended destruction must always be physical or biological “overlooks a distinction between the nature of the listed “acts” and the “intent” with which they are done” (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 48). According to him, the question in Krstic was whether, to prove genocide, “it was necessary to show that the intent with which the individuals were killed was to cause the physical or biological destruction of the Srebrenica part of the Bosnian Muslim group” (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 49). In his opinion, a group is constituted by characteristics which are often intangible. Thus, if those characteristics, tangible or intangible, are destroyed through the commission of a listed act of physical or biological nature and with the required genocidal intent, it is illogical “that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological” (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 50).

Judge Shahabuddeen did not propose that the destruction of the culture of a group should be recognised as genocide under international law (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 53). Rather, he claimed that the “nature” of the act must be physical or biological, in accordance with the nature of the acts in Article II GC (with the exception of Article II (e) GC, which does not involve the physical destruction of the victims and is therefore considered to be considered cultural in nature (Schabas, 2007, para. 19)). But, he added, the “intent” to destroy the group “as a group” can be proved by evidence of an intent to destroy the cultural features of the group, except where physical destruction is expressly required in the law (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, paras. 53-4). For example, in Krstic, it was determined that the destruction of a mosque (an act of a cultural nature) confirmed an intent to physically destroy the Muslim community of Srebrenica (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 53).

In fact, such approach was not dissimilar to that of the International Court of Justice (ICJ). In Bosnia v. Serbia(para. 190), the ICJ recognised that whether a particular operation described as ethnic cleansing (arguably a form of cultural genocide) constitutes genocide “depends on the presence or absence of acts listed in Article II [GC], and of the intent to destroy the group as such. (…) [I]t is clear that acts of “ethnic cleansing” may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (…) inspiring those acts”.

Against this backdrop, this paper argues that the ECtHR’s decision is in line with the jurisprudence of international courts and tribunals. Even if killing the leaders of the Lithuanian resistance was done with the intent of destroying the cultural characteristics that created the group of Lithuanian partisans, this can still be considered evidence of genocidal intent. With the “nature” of the acts being physical or biological, that the “intent” of the perpetrator was, in a way, cultural or sociological does not prevent the case from falling within the scope of genocide under international law. In other words, the cultural (as opposed to physical or biological) qualitative significance of the Lithuanian partisans in relation to the Lithuanian nation does not prevent Lithuanian partisans from being a significant part of the protected group, thus protected under the Genocide Convention.

Recently, the Chinese Communist Party (CCP) has been accused of carrying out conduct which resembles the acts described in Article II GC against certain members of the Uighur community, in order to facilitate the full cultural assimilation into Chinese culture, known as ‘Sinicization’, of this community (see Finnegan, 2020; Zenz, 2019; Human Rights Watch, 2018). Whilst, if the accusations were true, the CCP’s actions could amount to cultural genocide, the ECtHR’s Drélingas judgment suggests that they, too, could be judged under the Genocide Convention as genocide. The following section gives some background information to the Uighurs’ situation, before laying out the reasons why such situation warrants an investigation into acts of genocide.

A brief history of Uighur nationalism and oppression

Most Uighurs live in the Xinjiang Uighur Autonomous Region (Xinjiang or XUAR), a North-western province of China with a Uighur-majority population, which was annexed by China in the eighteenth century (Human Rights Watch, 2005, p. 11). A Turkic-speaking national-ethnic minority, the Uighurs have a long history of rebelling against Chinese rule, but nationalist unrest grew stronger in the 1990s after the break-up of the Soviet Union. Because of the prevalence of ethnic Turkic population in the former-Soviet Central Asian Republics, when these territories became independent, the pro-independence movement in Xinjiang gained momentum, feeling that they, also, were entitled to national self-determination (Hyer, 2006, p. 79). While Chinese authorities initially claimed that the protests had been carried out by only “a handful of separatists”, since 11 September 2001 the government has connected the protests to international terrorism (Human Rights Watch, 2005, p. 16). To gain the support of the international community, the CCP portrayed the secessionist East Turkistan Islamic Movement (ETIM) as having direct links with Osama bin Laden and aspiring to launch a holy war to set up an Islamic state in Xinjiang (Information Office of the State Council of the PRC, 2002 in Clarke, 2007, pp. 337-8).

In the aftermath of 9/11, despite the absence of evidence that terrorist attacks were being orchestrated by the ETIM or other separatist groups, the Chinese and Xinjiang governments justified their repression of peaceful and lawful activities by arguing that “‘separatist thought’ is the new approach followed by dissident organizations that previously used violent tactics” and peaceful activists are “presumably waiting for the right moment to revert to their previous methods” (Human Rights Watch, 2005, pp. 19 and 21). This pre-emptive rationale was used by the CCP to justify arrests, heavy sentences and even the imposition of the death penalty on dissenting writers or non-violent groups advocating minority rights who were accused of and charged with terrorism (Human Rights Watch, 2005, pp. 19 and 21).

China passed its Counter-Terrorism Law (CTL) in 2015, whose scope was extended in Xinjiang by means of XUAR’s Implementing Rules on the Counter-Terrorism Law (XUAR-CTL). The latter “aims to prevent the spread of extremist ideas, whereas the counterterrorism law deals with terrorist acts” (Tiantian, 2017). The definition of terrorism in Article 3 XUAR-CTL is so broad that, “activities that may fall within the scope of legitimate religious practices in other jurisdictions are otherwise rendered as criminal acts” (Li, 2016, p. 381). As the US Department of State (2018) noted, China’s counter-terrorist activities are hard to distinguish from its suppression of ethnic-nationalism.

Under Article 38 XUAR-CTL, individuals who have been coerced to participate in terrorist or extremist activities which “do not yet constitute crimes” (Article 38 XUAR-CTL) can be detained in so-called vocational centres (detention camps). According to the Xinjiang government’s official website, the establishment of the centres responds to an urgent need to curb the “frequent occurrence of violent and terrorist cases and to eradicate the breeding ground for religious extremism” (XUAR Government Website, 2019). However, some activities that, according to China, cause national insecurity (defined as an external threat to a state’s sovereignty), in reality, only pose a threat to societal security (which concerns the protection of a society’s identity) (Clarke, 2007, p. 325). An example of this is Article 6(6) XUAR-CTL in connection with Article 3 XUAR-CTL. In addition, often Uighurs are detained without a charge when authorities suspect that they are practicing Islam. Examples of those arrested include restaurant owners who do not allow drinking alcohol or smoking in their restaurant and people who share Islamic teachings online (Human Rights Watch, 2018, p. 32).

In addition, no independent monitoring of these institutions is allowed and, according to former detainees, should they hope to ever be released, detainees are required to denounce their religious beliefs, language and culture and to assimilate into the Chinese language and culture instead (Human Rights Watch, 2018, pp. 3 and 35ff.). With over 3 million people either interned or forced to attend day and evening “study sessions”, there are widespread, credible reports of deaths, torture, and systemic political indoctrination in these institutions (Uyghur Human Rights Project, 2018, p. 3; Human Rights Watch, 2018, pp. 35ff. and 47ff ). Meanwhile, intellectuals and political and religious leaders who “keep the Uyghur culture alive through their dissemination of Uyghur history, knowledge, religious beliefs and language” (Finnegan, 2020, p. 10) have been sentenced to death for peacefully advocating the national self-determination of Xinjiang, under the name ‘Uyghuristan’ (Uyghur Human Rights Project, 2018, pp. 8-13).

Combined with the general policy of detaining individuals for practising their culture, the policy of killing, torturing and indoctrinating the most politically and culturally active Uighur risks destroying the Uighurs’ unique culture and national identity and self-awareness. Whilst Soviet propaganda disguised the genocide in Lithuania by framing it as ‘a central government’s fight against gangs’, as opposed to a ‘national resistance war’ (Vasiliauskas v. Lithuania, ECtHR, Judge Ziemele DO, para. 12), this resonates with the ongoing situation in Xinjiang, where the War on Terror is being used as a pretext to uphold the current legal framework that regulates national security, which formalises and systematises an intense suppression of non-violent Uighur culture and nationalism.

In line with the Drélingas judgment, if it can be demonstrated that China is carrying out acts which are described in Article II (a)-(e) GC against the most active and prominent members of the Uighur nation, intending to physically destroy them; that China does not intend to physically destroy the entire Uighur nation should not bar scholars and the international community from examining this situation from the perspective of genocide (as opposed to cultural genocide). Thus, the following sections evaluate, firstly, whether the Uighur minority is protected under Article II GC; secondly, whether any of the acts described in Article II GC are being carried out against the Uighurs (actus reus); finally, whether there is a genocidal intent behind such acts (mens rea).

The Uighur as a group protected under the Genocide Convention

In order to assess whether the Genocide Convention could be applied to the present case, it must first be established that the Uighur are among the groups protected in Article II GC. Concretely, they are a national-ethnic group (or nation), defined as a “community of people historically formed on the basis of a common language, territory, socioeconomic life, culture and national self-identity, with a common national, political and economic perspective” (LSC decision, para. 18 in Drėlingas v. Lithuania, para. 50).

The Uighur are a Turkic-speaking community of about 11 million, whose ancestors are traced back to the nomadic tribes who inhabited, in the seventh century, nowadays’ Southern Xinjiang (Human Rights Watch, 2005, p. 10). Their main religious traditions are moderate Sunni Islam and Sufism and they are a mostly rural population of commercial and cultural brokers, who were historically connected by the Silk Road (Human Rights Watch, 2005, pp. 12-3).

Self-identity refers to an individual’s awareness of what makes them who they are. In turn, national self-identity refers to an individual’s awareness of belonging to a group composed of people who share a common culture, history and national, political and economic outlook. National self-identity does not necessarily correlate with citizenship. In this respect, most Uighur have never fully accepted Chinese domination of Xinjiang (Human Rights Watch, 2005, pp. 13-4) and consider themselves different to China linguistically, culturally and historically (Hyer, 2006, p. 78).

According to the Human Rights Watch 2005 Devastating blows report, whilst Xinjiang was annexed by China in the eighteenth century, the central government’s effective control was temporarily lost as a result of the population’s opposition to Chinese rule (p. 11). In 1944, the Soviet Union backed an independent state under the name ‘East Turkistan Republic’, but negotiations between Stalin and Mao led to its reincorporation into China in 1949 (p. 11). The CCP promoted mass migration of ethnic Chinese (Han) into Xinjiang, to the point where the proportion of ethnic Chinese increased from 6 percent in 1949 to 41.5 percent in 1976 (p. 11). This policy sparked discontent among the Uighur, who, making up around half of the population, are the largest ethnic group in Xinjiang (p. 10). Firstly, they felt that their culture was being “diluted” (Clarke, 2007, n 5). Secondly, the Han population benefitted from the economic development in Xinjiang far more than the non-Han population, who remained politically and socioeconomically marginalised (Clarke, 2007, pp. 334-5). In relation to the rest of China, Xinjiang lags behind socioeconomically and, in relation to the Han population in the province, so do the Uighur – for example, their life expectancy is on average 10 years lower (Human Rights Watch, 2005, pp. 10 and 12).

The break-up of the Soviet Union and the independence of the Central Asian Republics, whose predominantly Turkic-speaking populations share cultural and ethnical links with the Uighurs, “invigorated the nationalist independence movement among Uighurs in Xinjiang” (Hyer, 2006, p. 78). According to Hyer (2006, p. 79), the “pro-independence demonstrations and other activities in 1997 were not momentary disturbances, but have deep historical and religious roots and will likely persist for the foreseeable future”.

Finally, deriving from the theory of imagined identities, all group identities are socially constructed and can only be determined subjectively, not objectively (Verdirame, 2000, p. 592 in Darfur Report, para. 499). Accordingly, a group is protected against genocide to the extent that the perpetrators perceive the shared identity of its members to possess the features socially associated with an ethnic, racial, religious or national group. In this regard, stigmatisation is a central element of the subjective approach to group identification. Uighur opponents to Chinese rule have been stigmatised throughout history, which increases the distrust between the Uighur and ethnic Chinese communities in Xinjiang. In the 1950s and 1960s, they were labelled ethnic-nationalists; in the 1970s and 1980s, counterrevolutionaries; in the 1990s, separatists; and currently, terrorists (Human Rights Watch, 2018, p. 8). These labels also reflect that the Uighur are seen as a national-ethnic group, particularly given that the CCP equates separatism (typically a nationalistic movement) with terrorism and extremism (describing them as ‘the three evil forces’) (Human Rights Watch, 2005, p. 10).

In brief, the Uighur, as a national-ethnic group, are protected under Article II GC.

Actus reus

Article II (a) GC: Killing of members of a protected group

In 2014-2016, Xinjiang launched a ‘strike hard’ campaign against terrorism (Amnesty International, 2017, pp. 29-30). Since then, prominent Uighur intellectuals have been sentenced to death for advocating separatism (Hoshur and Lipes, 2018; Illmer, 2019; Uyghur Human Rights Project, 2018, pp. 8-13). Usually, during this kind of campaign, the imposition of the death penalty, the lack of due process and wrongful executions tend to spike. However, according to the official records, no death sentence related to terrorism was imposed during that period (Amnesty International, 2017, pp. 29-30). Under domestic law, issues related to national security remain a state secret, so executions involving terrorism or separatism may not be recorded in the official database (Amnesty International, 2017, pp. 29-30). Therefore, whilst it is known that prominent Uighur intellectuals are being sentenced to death for advocating separatism, the exact magnitude of this issue remains unknown (Uyghur Human Rights Project, 2018, pp. 3ff.; Amnesty International, 2018, pp. 6ff.).

Article II (b) GC: Causing of serious bodily or mental harm to members of a protected group

Serious bodily and mental harm “results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life” which must be assessed on a case-by-case basis (Krstic, ICTY [Trial], paras. 512-3). In the trial against Adolf Eichmann, the District Court of Jerusalem stated that serious bodily or mental harm of members of the group can be caused “by their detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture” (District Court of Jerusalem, Adolf Eichmann Case, para. 199 in Akayesu, ICTR, para. 503).

In Xinjiang, reports of former detainees note their subjection to immense suffering in the camps, including having been forced to stand up for 24 hours, not having been fed for a week and having been forced to wear a metal outfit which does not let one bend their head for twelve hours (Human Rights Watch, 2005, pp. 47ff.). Under custody, women have been raped and subjected to sexual abuse (Hoja, RFA, 2019). Deaths in the camps have been recorded, some presumably caused by violent treatment or torture by authorities and others, by suicide (Human Rights Watch, 2005, pp. 47ff.; Hoshur and Lipes, 2017; Uyghur Human Rights Project, 2018, pp. 8-13). Detainees are constantly under surveillance, and so are the other Uighurs living in Xinjiang (Raza, 2019, p. 493; Human Rights Watch, 2018, pp. 15, 40, 75, 77; Australian Strategic Policy Institute, 2020, pp. 3-7; Hoja, FT, 2019; Danilova, 2018). In addition, there is an increasing number of prominent intellectuals and community leaders who keep disappearing and of detained people who are held incommunicado, which often results in torture or ill-treatment (Uyghur Human Rights Project, 2018, pp. 3ff.).

The Australian Strategic Policy Institute has also uncovered that an estimated 80,000 Uighur are subjected to forced labour, through a scheme facilitated by the government (Australian Strategic Policy Institute, 2020, p. 3).

In Xinjiang’s camps, detainees are subjected to severe physical and psychological trauma and, upon release, most are unable to lead a normal and constructive life and many of them turn to alcohol (Hoja, RFA, 2019). Even those who have family abroad often cannot leave Xinjiang, as they are denied passports (Hoja, RFA, 2019; Hoja, FT, 2019).

The testimony of a former detainee in China’s re-education camps, found in Human Rights Watch’s Eradicating ideological viruses 2018 report (p. 50) represents the general feeling of severe anxiety among members of the Uighur community, caused by the legal uncertainty and arbitrariness surrounding detention:

I couldn’t bear it anymore. I hit my head on the wall and I had the feeling of powerless, helplessness, and rage. I lost consciousness and when I woke up I was in a doctor’s room. They had taken me to a hospital. So, they examined me and said my head was seriously injured. The guard said, ‘We’re going to sentence you for another seven years for having attempted suicide’.

Article II (d) GC: Imposing measures intended to prevent births within the group

According to Zenz (2020), “comprehensive new evidence from government documents reveals a systematic state campaign of suppressing minority births”, including Uighur. Government policies in this regard include handing out monetary incentives for undergoing sterilisation, punishing individuals with detention for violating birth control policies and forcing surgical and medicine-induced sterilisation. This is supported not only by anecdotical evidence of such policies, through first and second-hand testimonies (for example: Hoja, RFA, 2019; Danilova, 2018), but also by the dramatic decrease in population growth in Uighur-majority regions. According to the 2019 Moyu County People’s Government Work Report, “the birth rate and natural population growth rate have dropped significantly”, whilst authorities have continued to “severely crack down on illegal childbirth”. In Karakax County, for example, population growth dropped by 83 percent between 2016 and 2018 (Zenz, 2020).

Article II (e) GC: Forcibly transferring children of the group to another group

Evidence suggests that Xinjiang has established a system of forcible separation of children from their parents (Uighur national-ethnic group), placing them under state custody (Chinese national-ethnic group) from a very young age (Zenz, 2019; Sharma, 2019). The facilities are highly secured and tightly controlled, forcing “intensive, state-controlled and highly coercive Chinese language education and immersion, along with political indoctrination and psychological correction” (Zenz, 2019). Children are forced to report on their parents and parental influence and intergenerational cultural and religious transmission are “quite possibly almost completely eliminated” (Zenz, 2019).

In brief, whilst there is no evidence of mass killings, there is evidence to suggest that other acts that fall under the scope of Article II GC could already be being perpetrated.

Mens rea

Overall intent

In Drélingas, the ECtHR determined that “Soviet repression had been targeted at the most active and prominent part of the Lithuanian nation (…), defined by the criteria of nationality and ethnicity”, with “the clear goal of creating an impact on the demographic situation of the Lithuanian nation” (Drėlingas v. Lithuania, para. 103).

‘Demographic situation’ refers to a territory’s “national or ethnic composition, language spoken, religion practised, or other cultural characteristics” that define the populations living in a given territory (Alfredsson, 2007, para. 7). Demography has sociological, rather than physical, connotations which implies that the intent of the perpetrator was to destroy the cultural characteristics that made up the group. Furthermore, because national-ethnic groups exist as a result of a set of sociological features (their members’ sense of shared culture and national identity and self-awareness), destroying those features would, in reality, destroy the group.

Drawing on Judge Shahabbuddeen’s dissenting opinion in \textit{Krstic}’s appeal judgment, the destruction of culture can be used as proof of intent to destroy a protected group (\textit{Krstic}, ICTY [Appeal], Judge Shahabuddeen DO, para. 53). The documented destruction of mosques and other elements of the Uighur lifestyle and culture (Sintash, 2020) and forced, systematic indoctrination of children and adults (Zenz, 2019) reinforces the view that the CCP’s counter-terrorist efforts in Xinjiang are taking place amid a wider context that suggests that the War on Terror may be being used as a pretext to destroy the protected group by eradicating their culture and national identity and self-awareness (Raza, 2019, pp. 495-8; Li, 2016; Finnegan, 2020; Ramzy and Buckley, 2019; Zenz, 2019).

Active and prominent

According to the online Cambridge Dictionary, to be active means to be “involved in a particular activity”, while something prominent is “very noticeable, important, or famous”.

Some aspects of China’s counter-terrorist policy specifically target community, cultural, and intellectual leaders who “keep the Uyghur culture alive through their dissemination of Uyghur history, knowledge, religious beliefs and language” (Finnegan, 2020, p. 10). The research conducted by different international news and non-governmental organisations shows “a very clear pattern that Uighur academics who have been researching Uighur culture, and those with international contacts have been targeted” (Uyghur Human Rights Project, 2018, p. 5). For example, state-produced films reveal that some high-profile Uighur intellectuals, such as Halmurat Ghopur, president of the Xinjiang Food and Drug Administration’s Department of Inspection and Supervision and former president of Xinjiang Medical University Hospital, are being given two-year suspended death sentences on separatism charges (Hoshur and Lipes, 2017; Illmer, 2019) which, taking other factors into consideration, could fit within the scope of Article II (a) GC.

Essential

In line with the reasoning in Drélingas, a ‘part’ of a national-ethnic group may be significant within the meaning of the Genocide Convention if the perpetrators consider its members essential to ensure the survival of the entire group as such (Drélingas v. Lithuania, para. 103). According to its ordinary meaning, the term ‘essential’ is synonymous with ‘necessary’, which means “needed in order to achieve a particular result” (Cambridge Dictionary). Meanwhile, ‘survival’ means “continuing to exist” (Cambridge Dictionary). The final step is, therefore, to establish whether those who are targeted for physical destruction are necessary to ensure their nation’s continued existence.

For it to be genocidal, the aggressor can destroy the ‘essential part’ of the group with the objective of facilitating the cultural assimilation of its society. In Drélingas, the elimination of the Lithuanian partisans aimed to facilitate the Sovietisation of Lithuanian society (LSC decision, para. 25 in Drélingas v. Lithuania, para. 51) and the victims had been chosen with that goal in mind (Drélingas v. Lithuania, para. 103). Similarly, in Krstic the ICTY determined that ‘significant’ meant that the aggressor “could not have failed to know (…) that this selective destruction of the group would have a lasting impact upon the entire group” (Krstic, ICTY [Trial], para. 595).

In Xinjiang, the relevant authorities cannot fail to know that destroying the part of the Uighur nation in charge of keeping “the Uyghur culture alive through their dissemination of Uyghur history, knowledge, religious beliefs and language” (Finnegan, 2020, p. 10), would have a serious and lasting impact on the group’s demographic situation. This is because intellectual, cultural and religious leaders constitute “the repository of cultural and scientific knowledge of a people, and in order to break the ethnicity you need to break the ethnic life” (Sharma, 2019), so this part of the group is necessary to ensure the survival of the Uighur national identity, culture and national self-awareness.

Amid the general widespread and systematic scheme of cultural genocide, there is a case that China could be destroying this part of the group with the aim of facilitating its aim to achieve the full assimilation of the Uighur community into Chinese culture, or, in other words, to destroy this national-ethnic group.

Conclusion

This paper has argued that China’s lack of intent to physically destroy the entire national-ethnic group should not prevent a full examination of the ongoing situation in Xinjiang under the Genocide Convention. There is evidence to suggest that acts falling under the scope of Article II GC are already being perpetrated against the most outspoken and active Uighur individuals, within a wider context of extreme suppression of Uighur cultural and national realisation which aims to facilitate the full Sinicization of the Xinjiang province. Whilst it is clear that the Uighur are undergoing a cultural genocide, it is time for the international community to thoroughly investigate whether acts of genocide, within the meaning of the Genocide Convention, are also occurring.

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Why Is Sexual Violence Such an Effective Weapon of War?

Dawn Stevenson, University of Leeds, UK

Dawn Stevenson studied International Development and Spanish at the University of Leeds. After volunteering with a sustainable development NGO in Nepal for 9 months, Dawn is now working as a Policy Advisor in the Civil Service. Her main areas of interest are human rights, climate change and sustainable agriculture.

Abstract

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims; it encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime.This paper argues that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance. These pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

“We won’t waste bullets on you; we will rape you and that will be worse for you” (Zimbardo, 2007, p. 13)

Sexual violence is one of many war crimes that is effectively and strategically committed to achieve war aims in almost every armed conflict in recorded history (Jones, 2013, p. 1). Until the recent UN recognition of its systematic and deliberate employment as a strategic weapon of war in 2008 (UN, 2014), sexual violence had been perceived as merely a consequence or side effect of war (MSF, 2004). However, brutal and devastating forms of sexual violence are utilized to achieve the military and political objectives of warring factions, to terrorize, displace and destroy ‘enemy’ groups (UN, 2014; Baaz and Stern, 2009; Jones, 2013, p. 2). Sexual violence encompasses many forms of violence and is perpetrated against victims of all genders during both wartime and peacetime. For clarity and precision of focus this article will specifically analyse sexual violence in the form of rape of women and girls. As it is rape that is perpetrated en masse as an effective weapon of war (Farwell, 2004). Moreover, the preponderance of rape warfare is perpetrated against women and girls (UN, 2008).

This article will argue that rape is an extremely effective weapon of war because its multidimensional consequences give rape the powerful ability to destroy not only its victims, but to tear apart their families and communities. It will explore how rape becomes a strategic tool to inflict long-term, devastating and debilitating consequences for female victims, for the men socially connected to them, and equally for their communities and future generations. These consequences are facilitated by gendered structural violence and inequality entrenched in patriarchal (male-centred, structured in sexism) societies and their perceptions of female sexuality and male dominance (Boesten, 2012). Structural violence is defined as violence present not necessarily in direct, physical action but embedded into the political and economic structures of society (Farmer et al. 2006, p. 1686). Many forms of social injustice, including gender inequality and poverty form structural violence because they prevent individuals from realising their physical and mental potential (Galtung, 1969, p. 171). This article will conclude that these pre-existing perceptions and attitudes facilitate the widespread use of sexual violence as both a deliberate strategy of war and as an outcome of economic grievances.

To explore these issues, the article will principally analyse the case study of the Rwandan Genocide (1994), in which systematic, militarised rape was clearly used as a strategy of genocide to achieve ethnic cleansing and displacement of the Tutsi population. It will also draw from comparisons from the lengthy conflict in the Democratic Republic of Congo (DRC) (1997-2003), which provides insight into the complex interplay of the strategic, militarily-commanded use of rape understood by the ‘Rape as a Weapon of War’ discourse (Eriksson Baaz and Stern, 2013, p. 4), and the wartime exacerbation of ‘normal’ sexual violence born of soldiers’ socioeconomic grievances rooted in structural violence. It will explore how in both Rwanda and the DRC, rape warfare perpetrated with the economic goal of extorting personal assets and land by displacing women and communities, thus showcasing the political economy of rape (Turshen, 2001).

Sexual violence as a tool of genocide in Rwanda

We must first examine the use of sexual violence as a tool of genocide in Rwanda and explore why it was so effective in achieving the Hutu war objectives of destroying the Tutsi ethnic group and displacing them from land and assets in order to pillage. During the three months of genocide in Rwanda in 1994, an estimated 800,000 to 1 million Rwandans died, eradicating three quarters of the Tutsi population (Jones, 2013, p. 2). The systematic rape of up to 500,000 Tutsi women perpetrated by the ‘Interahamwe’ Hutu militia groups, civilians, and soldiers of the national Rwandan Armed Forces (FAR) (Human Rights Watch, 1996), was used as a weapon of war and an act of genocide with the intent to destroy the Tutsi ethnic group.

Understanding why rape was used as a weapon to further war objectives in Rwanda necessitates understanding the foundations of the genocide that created those objectives. The root of this genocide was the colonial assignment of distinct races to the previously fluid Hutu and Tutsi ethnic groups, creating “racialized political identities” that were later reproduced by nationalism during the post-colonial Rwandan revolution of 1959 (Mamdani, 2003, p. 144). Rwanda became a ‘Hutu nation’, in which the ‘alien’, non-Rwandan Tutsi aristocracy was seen to be holding a colonial, illegitimate claim to power. This language of political racialisation produced a radicalised Hutu social ideology which was inflamed by the military invasion of the Rwandan Patriotic Army (RPA) of exiled Tutsis from Uganda in 1990, which in turn triggered the civil war. The invasion was seen as an attempt to restore the colonial Tutsi monarchy, which justified brutal Hutu-Tutsi violence to wipe out the Tutsi population, all in pursuit of justice for the Hutu nation (Mamdani, 2003, p. 143, 147).

Genocide can be committed through various methods: by the mass murder and prevention of future reproduction of a victimized group, but also by destroying the cultural and social bonds of that group (Card, 1996, p. 8). In Rwanda, rape was used as a weapon for both strategies in the destruction of the Tutsi population. Firstly, rape was used to control reproduction, to end the Tutsi ‘race’ not only through murder and forced sterilization of Tutsi women by mutilation (Sai, 2012), but also by changing the race of the next generation through pregnancies resulting from Hutu rape of Tutsi women. During the genocide thousands of Tutsi women were gang-raped and raped with objects such as sharpened sticks and gun barrels, to cause life threatening injury and to forcibly sterilize them, to prevent the Tutsi population from bearing children (Human Rights Watch, 1996). In patriarchal societies such as the one in Rwanda, children adopt the father’s ethnicity; hence children of forced pregnancies take the ‘enemy’ group’s ethnicity (Sai, 2012). This ‘deliberate pollution’ of the “bloodlines of victimised populations” (Bartels et al., 2013, p. 341) is a frequent feature of genocidal warfare. It was also employed during the Bosnian war (1992-95), in which the systematic mass rape of an estimated 60,000 Bosnian women was used as a strategy for the genocidal ethnic cleansing of the Bosnian race through forced pregnancies, so that raped Bosnian women would give birth to a Serbian baby (MSF, 2004). The ability of rape to eliminate ethnic populations by changing the bloodlines of the next generation through forced pregnancy makes it a unique tool of genocidal warfare.

Rape warfare is extremely effective in decimating enemy communities because of its multidimensional, devastating and long-term consequences for raped women in the aftermath of their abuse. Many women raped in conflict are killed directly after or die from their injuries (Card, 1996, p. 8), whilst survivors can suffer life-threatening and long-term physical injuries from rape and/or mutilation (MSF, 2004). Many victims are also deliberately infected with HIV, which in fact led to an epidemic in Rwanda (Park, 2007, p. 15). Psychologically, sexual violence is used to intimidate, threaten and keep women in a state of fear (Brownmiller, 1986). In Rwanda, the Hutu population was encouraged to “use rape as a tactic of terror and spiritual annihilation” (Jones, 2013, p. 2), stripping Tutsi women of their dignity and identity (Sai, 2012) and causing long-lasting trauma (MSF, 2004).

Another factor that contributes to the efficacy of sexual violence as a weapon of war is that perpetrators of rape warfare have historically maintained impunity from retribution (Falcon, 2001). Despite its recent recognition by the UN and international community as a global security problem (Eriksson Baaz and Stern, 2013), rape remains one of the most “under-reported and inadequately prosecuted of all war crimes” (Allen, 2007; Jones, 2013, p. 1). The stigma and socioeconomic consequences for sexual violence victims, rooted in patriarchal gender inequality, reinforce impunity. As the vast majority of women who suffered rape and other forms of sexual violence in both Rwanda and the DRC did not report or reveal the abuse they went through due to fear of rejection and ostracization from their community (Human Rights Watch, 1996). Moreover, sexual violence is not sufficiently addressed in post-conflict reconstruction and transitional justice programs. The impunity of sexual violence is important to consider because a lack of deterrence “only perpetuates its use and lessens the likelihood that perpetrators will face justice for their transgressions” (Jones, 2013, p. 2) as well as reinforcing the image of a soldier’s entitlement to rape as a spoil of war (Falcon, 2001).

The physical and psychological trauma of rape is exacerbated by its socioeconomic consequences that are underpinned by gender inequality and patriarchal perceptions of women and female sexuality. This gives sexual violence the ability to destroy not only its victims, but also their families and communities. The importance of women’s sexual virtue and the prizing of female virginity means that raped women suffer from great stigma and shame. Survivors are commonly ostracised by their families and communities (Nolen, 2009) and are vunable to reintegrate into society. The husbands of rape survivors are also considered shamed, thus raped women are often rejected by their husbands (2009), especially when left with pregnancies and children from rape Thereby they lose their access to land and economic sufficiency, thus being forced to live in isolation and poverty (MSF, 2004). In this way, because of the structural violence of gender inequality entrenched into patriarchal societies, rape can tear apart families and communities, and create a population of landless, ostracised women in extreme poverty, transforming rape into “a kind of slow murder” (UN, 2008). Therefore, underpinning the power and efficacy of sexual violence as a weapon to dominate, destroy and humiliate enemy groups and the choice to use this method, is the cultural emphasis on women’s sexual virtue and on controlling female sexuality, founded on normalized gendered violence and gender inequality (Eriksson Baaz and Stern, 2013, p. 4).  The consequences of rape then reinforce the structural violence of gender inequality, as stigma, shame; social and economic ostracization and poverty exacerbate the already subordinated position of women in society, forming a continuity of violence against women, both structural and direct.

Women’s bodies as a battleground

Perpetrators exploit cultural conceptions of women’s sexual virtue and of men as protectors, to destroy individuals, families and communities through brutal forms of rape. In Rwanda, mass rape was used to tear apart communities and eliminate the cohesion of the Tutsi population. Frequent and brutal patterns of sexual violence during the Rwandan genocide included rape in the presence of family members, and equally witnessing the torture and murder of relatives (Human Rights Watch, 1996). This method was also employed in the Rape of Nanking during World War II, where Japanese Imperial Army soldiers gang-raped tens of thousands of Chinese women and girls, including the frequent use of forced rape between family members upon threat of death and forcing victims to watch the rape of their relatives (Jones, 2013, p. 1). These patterns exhibit a “calculated employment of psychological warfare aimed at reducing the cohesion of family units and the community as a whole” (2013, p. 1). The fundamental function of rape is the assertion of a “cross-cultural language of male domination” (Card, 1996, p. 11) by which perpetrators dominate and humiliate not only their female victims but also the men who consider themselves protectors of those women – husbands, fathers and brothers: “you destroy communities. You punish the men, and you punish the women, doing it in front of the men” (UN, 2008). The way women and girls are raped to humiliate and dominate their male relatives reflects the entrenched, structural, gendered violence they suffer, as “their bodies become a battleground over which opposing forces struggle” (Park, 2007, p. 15). Built upon these foundations, the multi-dimensional destructive consequences of rape are particularly effective in damaging familial and community cohesion (Card, 1996, p. 11) and are strategically employed to achieve “genocide by cultural decimation”, rendering mass killing unnecessary (1996, p. 8).

The mutilation of breasts and genitals that was perpetrated en masse alongside rape during the genocide formed part of a campaign of terror and “intimidation in its most malevolent form” (Jones, 2013, p. 2) and showcased the efficacy of rape and other forms of sexual violence as a weapon of war. This pattern reflected the hate media propaganda that portrayed Tutsi women as overtly “sexual weapons that would be used by the Tutsi to weaken and ultimately destroy the Hutu men” (Sai, 2012). As well as mutilations that took away distinctly Tutsi, ‘Hamitic’ features, the breasts, vagina and pelvic areas of victims were sometimes mutilated with machetes, sticks and boiling water following rapes (Human Rights Watch, 1996). Moreover, during the war and genocide women were more often raped out in the open than in their homes, often killed directly after they were raped, and “left splayed on public roads… with mutilated genitalia” (Sai, 2012). The horrific brutality of these assaults displayed publicly enacts symbolic violence, in that it sends the clear message of terror that “this can happen to you” (2012), validating Brownmiller’s (1986) assertion that through rape, “all men keep all women in a state of fear”. The clear patterns of mutilation show and symbolize the extreme bodily (re-)assertion of male Hutu dominance over Tutsi women and their sexuality, and over the whole Tutsi population, again exemplifying a war being fought over women’s bodies, which become the battleground for the humiliation of the enemy (Réseau des Femmes pour un Développement Associatif, 2005) (Park, 2007, p. 15).

A further purpose for using rape as a weapon of war in Rwanda was to disperse or forcibly relocate Tutsi communities, not only for ethnic cleansing, but strategically for the extortion of land and assets (UN, 2008). This was rooted in underlying Hutu grievances caused by the structural violence of social inequality between Hutus and Tutsis, entrenched by the colonial legacy of Tutsi aristocracy, which justified the extortion or ‘taking back’ of land from Tutsi families. Furthermore, the civil war legacy led to mass displacement, with 15% of the Rwandan population living in camps by 1994 (Mamdani, 2003, p.147).  The “plight of the displaced spread fear”, with hate media propaganda playing a crucial role in creating the discourse that if the Tutsi returned to power, the ‘Hutu nation’ would “lose both their land and their freedom, in short, everything” (2003, p. 147). Therefore, during the genocide, soldiers seized the property of widows whose husbands they had killed, acquired land through forced marriage to their victims, and pillaged the houses and possessions of those they raped (Turshen, 2001, p. 7). Some village massacres and mass rapes were committed for the prospect of acquiring land and assets (2001, p. 7) by killing the inhabitants and/or terrorizing them into fleeing their homes.

Rape for the extortion of assets: the case of the DRC

The effectiveness of rape as extortion of assets has also been a major objective of its mass perpetration during the lengthy conflict in the Eastern Democratic Republic of Congo (DRC). Sexual violence has been a ‘defining feature’ of the war, making it the clearest “example of brutality and [the] widespread nature of rape in modern-day conflict” (Bartels et al., 2013, p. 307), with currently approximately 1.8 million Congolese women having been raped in their lifetime (Hirsh and Wolf, 2012). Mass, brutal rape of civilian women was used to “destabilize, dominate and destroy entire communities” by up to 20 armed ‘warring parties’ in the Eastern DRC fought for control over the region’s vast reserves of gold, diamonds and other minerals (Bartels et al., 2013, p. 307) (Dettke, 2012). Clear patterns in the perpetration of rape show that it was committed systematically and strategically for the economic objectives such as wresting personal assets and land from women, creating the political economy of rape (Turshen, 2001, p. 1). Most rapes were perpetrated by armed combatants, and the livelihood of the majority of female victims was in agriculture, which gave them access to the valuable assets of land and livestock (Bartels et al., 2013, p. 332). The majority of rapes were committed inside the victims’ own home and in their fields, often in the presence of husbands and children (Hirsh and Wolf, 2012), and often with extreme brutality echoing those in Rwanda, including forced rape between victims, rape of the very young, old and pregnant, mutilation and murder (Bartels et al., 2013, p. 350). These patterns clearly showcase rape perpetrated to terrorize and displace women and communities, leaving abandoned settlements to the persecutors (Dettke, 2012), the power lies in the atrocity of rape which makes it an effective weapon of war.

However, analysis of rape warfare must consider that the causal factors of its perpetration are more complex than ‘simply’ as a deliberate tactic to achieve war aims. For Eriksson Baaz and Stern, the ‘rape as a weapon of war’ discourse can be problematic, because of its seemingly universal conception of rape warfare as a conscious military strategy, ordered and “enforced down the chain of command” (2013, p. 4). In some contexts, this very much is the case: in Rwanda both the killings and the mass, systematic use of sexual violence of the genocide are known to have been ordered or encouraged by military and political leaders at both national and local levels to further their political goal – the destruction of the Tutsi as a group (Human Rights Watch, 1996). However, the discourse can exclude the nuanced realities of different conflicts, in which a complex interplay of factors may lead to the perpetration of mass rape by soldiers without strategic orders necessarily being given (Boesten, 2010, p. 111).

In the DRC, the mass use of sexual violence in the conflict reflected the opposite: the breakdown of discipline and control in military structures, allowing soldiers to manifest their social and economic grievances into sexual violence (Eriksson Baaz and Stern, 2013, p. 4). Ethnographic research with soldiers in the DRC has shown clearly that individual perpetration of rape is very often directly caused by economic grievances and frustrations. Many militias in Eastern DRC are unpaid, with soldiers having little or no access to resources, making their living from extorting the population when possible in order to survive. Militias are dysfunctional and undisciplined, with combatants poorly trained, therefore rape becomes an ‘ideal’ and effective tactic to facilitate soldiers’ pillaging of local villages, that soldiers rely upon to meet their material ‘needs’ (Bartels et al., 2013, p. 342), without being a necessarily mediated and ordered warfare strategy. Interviewed soldiers said they had never received specific orders to rape, rather they had the attitude that rape is unavoidable in conflict situations (Eriksson Baaz and Stern, 2010, p. 31), and that rape was tolerated (even if not ordered) by their commanders. Furthermore, many soldiers claimed that poverty was their main reason for perpetrating sexual violence as well as other forms of violence, both to facilitate pillaging, and in their resorting to force to fulfil their sexual ‘needs’, being unable to “get a woman the normal way” without money (2010, p. 31).

Therefore, it can be said that the structural violence of extreme poverty can produce opportunistic rape (Boesten, 2010) within a patriarchal society that normalizes violence against women. From their justifications for rape, it is clear that in reality, widespread perpetration of rape by soldiers in the DRC (as in all conflicts), is caused not only by an ordered strategy but also influenced by the interplay of many contributing causes. These include ideas of militarised male sexuality that make them feel entitled to rape, and justify sexual violence as a ‘normal’ and ‘unavoidable’ consequence when combatant men are deprived of sex (Eriksson Baaz and Stern, 2010, p. 32). Moreover, pre-existing patriarchal perceptions of women as sex objects and of rape as a legitimate ‘spoil’ of war (UN, 2014) justify perpetration of the mass rape of women, and are exploited during conflict, facilitating the targeting of women through sexual violence as a weapon for achieving war aims. The intersection of normalized, gendered violence, and extreme wartime violence can be seen here: research shows that sexual violence is perceived as normal by communities in Eastern DRC (Hirsh and Wolf, 2012), and wartime violence is the “magnification of existing institutionalized and normative violence against women” (Boesten, 2012, p. 7). Therefore, the efficacy of sexual violence to achieve war aims, as both a deliberate strategy of war and as the outcome of economic grievances, is facilitated by pre-existing perceptions and attitudes which embody gender inequality and normalized gender-based violence, for “what people tolerate in peace shapes what they will tolerate in war” (Nordstrom, 1997, p. 1).

Conclusion

Sexual violence becomes an inexpensive and readily available yet extremely effective tool to achieve war objectives (Nolen, 2009), because of its immense impact that destroys and displaces communities (Bartels et al., 2013, p. 352), eliminating the cohesion of opposition and providing opportunities for perpetrators to pillage assets and extort land from their victims (Dettke, 2012, p. 2). Though not the only war crime that is used as a weapon to achieve these purposes, sexual violence has a unique ability to destroy its victims physically, socially and economically and tear apart their families and communities, stripping the humanity not just from the victim but from the group she is part of (Eriksson Baaz and Stern, 2013, p. 54). Held up by the structural gendered inequalities and perceptions of women in patriarchal societies, the consequences of rape devastate not only the victim but humiliate and destroy her family and community. The brutality and horror of rape perpetrated in warfare are so effective in terrorizing the population and preventing rehabilitation that they facilitate its use as a tool to achieve ethnic cleansing and displacement. The ability of rape to forcibly sterilize an enemy population and to ‘pollute their bloodline’ by changing the ethnicity of the next generation also make it a unique strategy of genocidal war. Moreover, whilst other war crimes face consequences in the post-conflict period, perpetrators of rape warfare commonly face no retribution. However, analysis of the complex interplay of contributing factors to the widespread use of rape in warfare, including the manifestation of economic grievances and brute poverty, and the exacerbation of pre-existing normalized sexual and gendered violence, shows that one cannot only conceptualize its use through the ‘weapon of war’ discourse, but must also consider these factors to gain a clearer understanding of the realities of rape in warfare.

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#EasyAsAPB? The Chances of Survival of the Genocide and Atrocities Prevention Act

Francesca Freeman, University of Chicago, USA

Francesca Freeman is the Program Assistant of the Next Generation Social Sciences in Africa Program of the Social Science Research Council. She graduated with an Honors BA in Comparative Race and Ethnic Studies, as well as a second major in Anthropology and a minor in Human Rights, from the University of Chicago. While at the University of Chicago, she served on the STAND Managing Committee as the head of outreach in the Midwest for the 2014-2015 academic year and as the Student Director during the 2015-2016 academic year.

On April 24, 1915, the Turkish government began to expel and massacre Armenians living in the Ottoman Empire. 1.5 million people were murdered. On April 6, 1994, Rwandan President Juvénal Habyarimana’s plane was shot down and Hutu militias began moving around Kigali, the capital of Rwanda, killing moderate politicians and journalists deemed a threat to Hutu power. Within a few hours of Habyarimana’s death, the genocide against the Tutsi people in Rwanda had begun and 1 million people were killed in the following 100 days. In July 1995, Serb forces attacked the besieged town of Srebrenica and, over the next ten days, killed 8,000 Muslim Bosniak men. In light of these horrific events, as well as the other countless genocides throughout the 20th century and early 21st century, theorists and policymakers alike have acknowledged the necessity for the US government to develop a strategic and comprehensive approach to genocide and atrocities prevention. Thus, in 2016, several U.S. senators, led by Senators Ben Cardin and Thom Tillis, introduced the Genocide and Atrocities Prevention Act. While the bill did not ultimately pass through Congress, the policies in the bill had significant potential for implementation under John Kingdon’s criteria for survival.

Background

The Genocide and Atrocities Prevention Act was introduced in the Senate on 11 February 2016 as a bipartisan effort to ensure that the United States makes genocide and atrocity prevention a top commitment in both foreign affairs and national security. The bill addressed three key aims: (1) institutionalizing the Atrocities Prevention Board, (2) authorizing the Complex Crises Fund, and (3) mandating training in atrocities prevention and response for Foreign Service Officers.

The Atrocities Prevention Board (APB) is an inter-agency entity tasked with monitoring and preventing genocide and mass atrocities through information-sharing and coordination among U.S. government officials. Each month, high-ranking officials from the Departments of State, Defense, and Treasury, the CIA, FBI, USAID, and National Security Council convene to discuss emerging crises and threats of genocide in countries across the world, and working-level groups meet more frequently to follow specific countries (Norris and Malknecht, 2013, p. 7). The APB itself has the authority to conduct early warning analyses in potential crisis zones and to recommend coordinated, agency-specific government plans of action. In the past five years, the APB has worked extensively and successfully to prevent further atrocities in the Central African Republic (CAR) and in Burundi (Genser and Sewall, 2015). In the Central African Republic, the APB is credited with the impressive speed at which the U.S. was able to respond to and mitigate further violence, and the board ensured that prevention efforts remained a top priority on an international scale. Furthermore, based on the APB’s suggestions regarding Burundi, the U.S. deployed civilian conflict experts, supported various Burundian actors working for peace, and facilitated local and national dialogue to discourage the escalation of tensions and violence.

Despite these successes, the Atrocities Prevention Board has also faced criticism since its founding in 2012 due to issues of commitment and transparency. One prominent issue is the varying commitment of different agencies to the operations of the board. For exapmle, the State Department and USAID have dedicated increasingly large numbers of staff to conflict and mass-atrocity prevention, but the Department of Defense has made relatively little effort in supporting the board (Norris and Malknecht, 2013, p. 14). Additionally, because of the highly confidential nature of the work the board does, and the lack of transparency of the board in general, it can be difficult to understand the impact it has had. While the board may hope that silence and obscurity will allow them to do their work without interference, it increasingly seems that the opposite may be true. Due to the lack of transparency, the Board has received criticism from members of Congress, who, in 2013, had only received one short briefing from then-US Ambassador to the UN Samantha Power. Others complain that the board is too focused on bureaucratic measures, with their focus on “monitoring,” “data collection,” and “analysis,” but does not take sufficient action to prevent these atrocities (Colucci, 2013).

The Board is also widely criticized for its failures concerning the Syria crisis. While many argue that the Atrocities Prevention Board has pushed the Syria crisis to the top of the foreign policy agenda and encouraged the Obama administration to have rigorous debates over potential US responses, the fact remains that thousands and thousands have died, and that the US specifically and the world in general has largely stood idly by. Another fundamental rebuttal of this failure is that the Atrocities Prevention Board is responsible for preventing crises before they happen, and the Syria crisis was well underway before the Board was created or convened. In the five-year existence of the Atrocities Prevention Board, it has seen significant successes as well as prominent challenges. Regardless, the board is one of the United States’ greatest tools in preventing genocide and mass atrocities, and should be encouraged and fostered to be a more ethical, more impactful institution.

The Criteria for Survival

In Agendas, Alternatives, and Public Policy (1995), John W. Kingdon discusses how policies are chosen and enacted. Coined “The Criteria for Survival,” he argues that if policies fulfil the following three criteria, they will likely survive to implementation. Kingdon’s criteria for survival are:

  1. Technical Feasibility
  2. Value Acceptability to Policy Community
  3. Anticipation of Future Constraints

In the following sections, I will apply the Criteria for Survival to the Genocide and Atrocities Prevention Act to prove the potential for the policy to pass through Congress.

Technical Feasibility

Technical Feasibility calls into question whether or not a policy is crafted and ready for successful implementation. Kingdon states, “It is a bit difficult to specify precisely what policy makers mean by technical feasibility, but they all sense, as they react to a proposal, whether it is ‘worked out,’ ‘staffed out,’ ‘worked through,’ or ‘ready to go’” (1995, 131). While many of these technicalities are worked out before the introduction of a bill, there are always loopholes and problems that pose roadblocks for the approval of a policy. Technical feasibility calls into question the possibilities of implementation and both the anticipated and unanticipated results of the policy.

The Genocide and Atrocities Prevention Act was technically feasible for several reasons. First and foremost, the institution that the bill would make permanent, the Atrocities Prevention Board, already existed under the Obama Administration. The mechanisms for its functioning were already in place and would simply be continued with the new bill, regardless of who took the Presidential Office following Obama. Funding for the Complex Crises Fund was also fairly feasible for similar reasons. The fund already existed and thus was simply seeking more money. While budget issues regularly raise tensions within Congress, the amount mandated in the bill was low enough that it would not affect the budget in any significant way. Additionally, the bill had several members of the Appropriations Committee as original cosponsors, including Senators Christopher Murphy of Connecticut, Barbara Mikulski of Maryland, Jeanne Shaheen of  New Hampshire, Jeff Merkley of Oregon, and Christopher Coons of Delaware, and gained several additional co-sponsors from the Appropriations Committee following the announcement of the bill, including Senators Susan Collins of Maine, Lisa Murkowski of Alaska, Patrick Leahy of Vermont, Dick Durbin of Illinois, and Tammy Baldwin of Wisconsin. Totalled, the Genocide and Atrocities Prevention Act had bipartisan support from one third of the Appropriations Committee. In considering the last mandate of the bill, State Department personnel already go through intensive training before being sent to their posts, and the atrocities prevention training would simply be added to these training regimens. Thus, all elements of the legislation would have been easily feasible upon implementation and therefore fulfil this criteria for survival.

Value Acceptability to Policy Community 

The next criteria for survival put forth by Kingdon is the value acceptability to the policy community. Policies that survive must be compatible with the values of the specialists on a given topic (Kingdon, 1995, p. 132). Policies are often supported when they are part of mainstream thinking, despite party lines, and address concepts of both equity and efficiency. One major question around value acceptability in the United States is not necessarily directly related to the policy but related to questions of the size and role of the federal government, and questions of sovereignty interacting with international actors. For example, the U.S. Congress has voted to not ratify certain UN treaties, such as the Convention on the Rights of the Child, because enough congress people did not want to give up the U.S.’ sovereign power to the UN (The Economist Explains, 2013). In many such cases, the U.S. already has laws corroborating the policy, but because it is affiliated with the UN, it loses its ability to survive. Other proposals gain prominence and acceptability because they address some sort of inequity in the community, and fairness and redress is often a powerful argument that moves policies forward. Finally, policy makers look more and more at the efficiency of the policies, both in terms of how much a policy would cost but also how much would be realized from that expenditure, whether these benefits outweigh the cost, and what could be achieved at a lower cost.

Genocide is widely considered one of the world’s most heinous crimes. People from different demographics and across the political spectrum, both in the United States and across the world, have united to condemn past genocides and have made attempts to confront current genocides and prevent future genocides. Thus, genocide prevention efforts are often held at the highest value and have been supported by researchers, policy makers, and lobby groups, regardless of political or partisan influences. Concerning the Genocide and Atrocities Prevention Act specifically, many of the most prominent actors in the genocide prevention field supported the values and policies put forward in the legislation. A wide range of NGO’s with varying backgrounds took leadership on the issue, particularly the Friends Committee on National Legislation, a Quaker lobby group, Jewish World Watch, a Jewish conflict and genocide prevention organization, and STAND: the Student-Led Movement to End Mass Atrocities. Furthermore, the bill had significant bipartisan support from its inception, with several Republican Senators as co-sponsors.

The bill also fulfils the criteria of value acceptability because it addresses a fundamental issue of inequity in the world. Genocide is a severe form of identity based violence and the bill would allow the United States to have a strategic system for identifying where inequities have led to violence and the flexibility to respond to prevent future violence in these regions. Finally, questions of efficiency bolster and promote prevention strategies across the world. According to a report from the United States Institute of Peace, the dangers and costs of waiting to respond once conflicts begin will provide continuing support of genocide and conflict prevention (Woocher, 2009). Thus, the main actors in the policy community were all in support of the bill, and most Americans, regardless of party affiliation agree that genocide prevention should be a top priority. In this light, the policies put forth in the Genocide and Atrocities Prevention act fulfil Kingdon’s second criteria for survival – value acceptability to the policy community.

Anticipation of Future Constraints

Potential for constraints both influence the creation of a policy and how the policy progresses to implementation. According to Kingdon (1995, p. 138):

“Decision makers need to be convinced that the [cost] of the program is acceptable, that there is a reasonable chance that politicians will approve, and that the public in its various facts – both mass and activist – will acquiesce. Anticipation of these constraints within a policy community forms a final set of criteria by which ideas and proposals are selected. Some ideas fail to obtain a serious hearing… because their future looks bleak, while others survive because specialists calculate that they would meet these future tests.”

One test discussed by Kingdon is a budget constraint, meaning that the proposal needs to be financially acceptable to the elected officials. Another test is public acquiescence. Policymakers must at some point receive support either from a general agreement of citizens across a country or from a narrower set of activists who have a special stake in the outcome. Without this anticipated support, a policy likely will not be supported to implementation.

As discussed above, the monetary cost of the bill was minimal, and would not have been significantly higher than what the U.S. was spending on similar efforts when the bill was introduced. The bill also had explicit and extensive support from those with the largest stakes, activist communities and diaspora communities, and likely would not have faced significant pushback from the broader public. Organizations such as the Friends Committee on National Legislation, STAND: the Student-Led Movement to End Mass Atrocities, the Peace Alliance, Darfur Women Action Group, and Jewish World Watch all actively advocated for the passing of this bill. Through lobby days, opinion piece publications, social media campaigns, a widely used hashtag (#EasyAsAPB), and call-in days, staffers heard a significant outcry in support of the legislation. The only major cost as perceived by some congressmen was the fact that the Atrocities Prevention Board does not have significant Congressional oversight, a point which will be explored later in this essay. Therefore, while there were some challenges to this criterion, the bill did not have significant concern regarding future constraints.

Successes of the Genocide and Atrocities Prevention Act

The Genocide and Atrocities Prevention Act was introduced on 11 February 2016. Upon introduction, the bill had fourteen original co-sponsors, 1 Republican and 13 Democrats. In the following months, the bill gained an additional thirteen co-sponsors, meaning that the bill had support from over a fourth of the Senate before it was even introduced in committee or brought to the floor. In total, the bill had 23 Democratic and 4 Republican co-sponsors. While there were significantly less Republican cosponsors than Democratic, genocide prevention is a fundamentally bipartisan foreign policy priority, dating back to President Ronald Reagan’s signing of the law that ratified the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Hirschel-Burns, 2016). While the bill did not pass, the support of over a fourth of the Senate shows significant potential and momentum.

Additionally, on 18 May 2016, President Obama issued Executive Order 13729, “A Comprehensive Approach to Atrocity Prevention and Response.” This Executive Order was an important step in institutionalizing the Atrocities Prevention Board, but the Genocide and Atrocities Prevention Act was needed to ensure that the APB would exist regardless of who held the Presidential office. This Executive Order was, along with the Bill, essential to the continuation of the APB, and showed that the Obama Administration would sign the Genocide and Atrocities Prevention Act into law if it passed through the House and the Senate. While the act did not ultimately pass through the Senate, it still had undeniable successes both before and after introduction, suggesting potential for both the policies presented in the bill and potential future legislations, which will be introduced in the 115 Congress.

What went wrong? 

The Genocide and Atrocities Prevention Acts seems to fulfil all elements of Kingdon’s criteria for survival, but the bill did not pass through Congress, was not voted on in the Senate, and did not even make it out of the committee. While the reasons for this are not entirely clear, it seems that the bill got caught up in partisan politics that halted any potential momentum and progress that had already been made. One major issue was that the bill was introduced in a Presidential election year. Very few movements were made in Congress at this time, and given a shortened timeline with the end of that Congress looming, other bills seemed to take a higher priority.

The biggest obstacle the bill faced, however, was that it was held up by a single Republican Senator who refused to schedule a mark-up of the bill in the Senate Foreign Relations Committee. According to activists who met with the Senator’s office, two major concerns of the Senator included (1) the creation of a permanent bureaucracy with the ‘codification’ of the Atrocities Prevention Board and (2) the lack of significant Congressional oversight as the Atrocities Prevention Board would be embedded within the National Security Council, which is part of the executive branch. These concerns were surprising for several reasons. The first is that the Senator had included a provision in the Fiscal Year 2017 State Department Authorization Act that authorized the APB through June 2017, although it would be disbanded at that time (S.1635). While this was an impermanent solution for which the Genocide and Atrocities Prevention Act offered a permanent one, it seems that the Senator fundamentally supported the Atrocities Prevention Board, and thus should have supported the bill. Addressing the second issue, one goal of the bill was to increase transparency and congressional oversight of the APB. The bill articulated general parameters for the work of the Atrocities Prevention Board and required regular reports to Congress, meaning that the opposite of the Senator’s presumption was, in fact, true. At the most fundamentally partisan level, the Senator may also have been concerned that there were so many Democrats and so few Republicans, and thus wanted to separate himself from efforts made by those across the aisle.

In the United States Congress, only four percent of bills actually become law (Sunlight Foundation, 2009). It’s thus not surprising that any particular bill gets stuck somewhere along the process to becoming a law. Many of the bills that die in committee do not fulfil the criteria for survival put forward by Kingdon, many get stuck in partisan politics that disallow any forward movement, and even more simply are not considered because there are more important things to discuss at any given time. The failure of the Genocide and Atrocities Prevention Act may have been caused by any one of these reasons. Regardless, it is clear that the policy is sound and that any future legislation has potential for implementation.

Conclusion

Genocide prevention is a fundamental value held by people across the world. In the 115th US Congress, there is significant support for response to genocide and mass atrocities on both sides of the aisle and while strategies for genocide prevention are not always agreed on, there is general consensus that the prevention of genocide and mass atrocities must be a foreign policy priority. Sadly, the Genocide and Atrocities Prevention Act followed in the footsteps of so many other bills –never even making it out of committee and to a vote. Fortunately, the dream of “Never Again” is not yet lost. The Atrocities Prevention Board continues to operate in the State Department, at least through June 2017, and a new bill, entitled the Elie Wiesel Genocide and Atrocities Prevention Act is likely to be introduced in the Senate in mid-2017. As the policies supported in the Genocide and Atrocities Prevention Act theoretically should survive to become policy, under Kingdon’s criteria for survival, the bill should see success moving forward. Additionally, the new bill already has significant bipartisan support through original co-sponsorships, including several Republicans from the Senate Foreign Relations Committee. Looking forward, the activist community must strategically refocus its efforts to ensure the new bill is passed. To do so, the new bill must address the concerns held by Republican Senators, and the activist community should continue to appeal to Republican Senators particularly. Additionally, it would be beneficial to work with Senators who have expressed concern about conflicts such as those happening in Syria and Yemen to understand the value of genocide prevention as a means of avoiding similar conflicts in other countries in the future.

When President Obama announced the creation of the Atrocities Prevention Board in 2012 at the United States Holocaust Memorial Museum, he said:

“Never Again is a challenge to nations. It’s a bitter truth– too often, the world has failed to prevent the killing of innocents on a massive scale. And we are haunted by the atrocities that we did not stop and the lives we did not save… Now we’re doing something more. We’re making sure that the United States government has the structures, the mechanisms to better prevent and respond to mass atrocities” (Obama, 2012).

The promise of “Never Again” has not yet been realized, but the policy is one that politicians have committed to time and time again, leaving glimmers of hope for a world without genocide.

Bibliography

Colucci, L. 2013. The Obama Doctine: Inaction. U.S. News and World Report. [Online]. 2 May. Available from: https://www.usnews.com/opinion/blogs/world-report/2013/05/02/syria-reveals-the-uselessness-of-obamas-atrocities-prevention-board

US House. Senate Foreign Relations and House Foreign Affairs. 2016. Department of State Authorities Act, Fiscal Year 2017. S.1635. Available from: https://www.congress.gov/bill/114th-congress/senate-bill/1635

The Economist Explains. 2013. Why Won’t America Ratify the UN Convention on Children’s Rights.  The Economist. [Online]. 7 October. Available from: http://www.economist.com/blogs/economist-explains/2013/10/economist-explains-2

Genser, J. and Sewall, S. 2015. Chartering the U.S. Atrocities Prevention Board’s Progress: A Conversation with Undersecretary for Civilian Security, Democracy, and Human Rights Sarah Sewall. Council on Foreign Relations. [Online]. 30 March. Available from: http://www.cfr.org/human-rights/charting-us-atrocities-prevention-boards-progress/p36332

Hirschel-Burns, T. 2016. The Five Things You Need to Know About Obama’s Executive Order on Atrocity Prevention. STAND. [Online]. 31 May. Available from: http://standnow.org/2016/05/31/the-five-things-you-need-to-know-about-obamas-executive-order-on-atrocity-prevention/

Kingdon, J. 1995. Agendas, Alternatives, and Public Policy. London: Longman.

Norris, J. and Malknecht, A. 2013.  Atrocities Prevention Board: Background, Performance, and Options. American Progress. [Online]. Washington, DC: Center for American Progress. Available from: https://www.scribd.com/document/147666062/Atrocities-Prevention-Board

Obama, B. 2012. Remarks by the President at the United States Holocaust Memorial Museum. 23 April. The White House: President Barack Obama Archives. Available from: https://obamawhitehouse.archives.gov/the-press-office/2012/04/23/remarks-president-united-states-holocaust-memorial-museum

Sunlight Foundation. 2009. Only Four Percent of Bills Become Laws. Huffington Post. [Online]. 25 August. Available from: http://www.huffingtonpost.com/wires/2009/08/25/the-vast-majority-of-bill_ws_268630.html

Woocher, L. 2009. Preventing Violent Conflict.  Washington, DC: United States Institute of Peace. [Online]. Available from: https://www.usip.org/sites/default/files/preventing_violent_conflict.pdf

Caveat Visitator: Alternatives to Rome Statute Obligations for the Arrest of ICC Indictees

Ben Taylor, The University of Queensland, Australia

Ben Taylor is in the final year of his BA/LLB from the University of Queensland. He has previously interned at the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia.

The recent visit of Sudanese President Omar al-Bashir to South Africa, and the ensuing international controversy at the prospect of his arrest there, has once again drawn attention to two trends in the International Criminal Court’s (ICC) relationship with states. Firstly, African state parties to the Rome Statute are increasingly frustrated with the ICC’s interventions in Africa, and the obligation they have to arrest a visiting indictee[1] such as al-Bashir, and are threatening to abandon their Rome Statute obligations as a result. The second is that unless the state in which an indictee resides is willing to arrest them, the Court is reliant on third states to arrest indictees if and when they visit, resulting in a situation of ‘caveat vistator’ – (accused) visitors beware.

This article will explore the obligations which states may have to arrest visiting ICC indictees which originate outside of the Rome Statute. In particular it will consider three sources of obligation: UN Security Council (UNSC) Resolutions, the obligation to punish genocide, and the obligation aut dedere aut judicare in a number of multilateral conventions. Ultimately it will attempt to answer what obligations may continue to force states to arrest and surrender an indictee like al-Bashir, even if the state in question has left the Rome Statute. However, it is important to note that the obligations to cooperate and arrest indictees discussed in this article have a complicated relationship with the personal immunities which may be held by indictees, such as head of state immunity in the case of al-Bashir, and that this relationship is contested, and outside the scope of this article.[2]

Al-Bashir, South Africa and the African Union

When al-Bashir arrived in Johannesburg for an African Union (AU) summit in June, a South African civil rights group[3] was able to obtain a High Court interim order instructing the South African government to take all necessary steps to prevent him from leaving the country, while the court decided on whether the government must arrest him (SALC v Minister of Justice and Constitutional Development, order of 14 June 2015). The next day the High Court ordered the government to arrest Al Bashir, but it was revealed that he had nevertheless been allowed to leave the country (SALC v Minister of Justice and Constitutional Development [2015]). The government was denied leave to appeal (Minister of Justice and Constitutional Development v SALC [2015]) and is now petitioning the Supreme Court, where the matter will be heard on 12 February 2016 (Southern African Litigation Centre, accessed 20 December 2015). Meanwhile, the ruling African National Congress party has resolved to support withdrawing South Africa from the Rome Statute (Reuters 11 October 2015).[4]

Rome Statute state parties are obliged to execute requests from the Court to arrest and surrender persons who are the subject of arrest warrants (Rome Statute 1998, art 89).[5] If they do not, the Court is able to make findings of non-cooperation and refer them to the Assembly of States Parties or to the UNSC where such a referral initiated the case (Rome Statute 1998, art 87(7); Regulations of the Court 2012, reg 109). In al-Bashir’s case, the Pre-Trial Chamber has made numerous referrals[6] without any meaningful sanction or reprimand from those bodies.

Instead, the AU has consistently attempted to stall the process. When in 2008 the Prosecutor first sought an arrest warrant against al-Bashir, the first sitting head of state to be indicted by the ICC,[7] the AU responded by calling on the UNSC to defer the process (AU Peace and Security Council 2008, para 11(i); endorsed in AU Assembly2009a, para 3). When the UNSC declined to do so (res. 1828, 2008, preamble), the AU went a step further, producing a Resolution reiterating its request and stating that AU Member States shall not cooperate with his arrest and surrender (AU Assembly 2009b, paras 9, 10).[8] Most recently, the AU has adopted a Kenyan proposal to ‘develop a roadmap’ for African nations to withdraw from the Court en masse (The Guardian 2 February 2016).

If African states do proceed to withdraw, the withdrawal process provided in the Statute does not discharge obligations which arose while they were parties, in particular ‘criminal investigations and proceedings in relation to which the State had a duty to cooperate’ which commenced before they withdrew (Rome Statute 1998, art 127(2). Nonetheless it is unclear whether the Court would be able to refer a state to the Assembly of State Parties or UNSC while no longer a party. And, more practically, governments may be unperturbed by the admonitions of an institution of which they are no longer a member.[9]

But what alternative obligations exist, and do they present the chance of meaningful enforcement, particularly at the International Court of Justice? In answering that question, this article will not be primarily concerned with the obligations of the state of nationality of the accused, or the state on whose territory alleged offences were committed, but with the situation of third states faced with the presence of an accused on their territory – whether staying permanently, such as Hissène Habré was in Senegal, or temporarily, as with al-Bashir’s visit to South Africa.

Security Council Obligations

The case against al-Bashir derives jurisdiction from UNSC Resolution 1593, which referred Sudan to the ICC in 2005, using the referral power in article 13(b) of the Rome Statute. Such UNSC Resolutions, acting under Chapter VII of the UN Charter, have the power to create binding obligations for any UN member state, and as Charter obligations they prevail over any other treaty obligation (Charter of the United Nations art 103; Libya v United Kingdom, Order of 14 April 1992, para 42). This means that the obligations UNSC Resolutions do create would defeat any Resolutions of the AU designed to discourage cooperation with the ICC, as was articulated by the ICC Pre-Trial Chamber when it admonished the Democratic Republic of the Congo for allowing al-Bashir to visit for a COMESA (Common Market for Eastern and Southern Africa) meeting, relying on the immunity afforded to AU heads of state (Al Bashir, Decision of 9 April 2014). The Chamber held that the UNSC, by resolving that Sudan shallcooperate with the Court, had in effect forced Sudan to relinquish head of state immunity, and that because it was a UNSC Resolution, it prevailed over any obligations created by the AU (Al Bashir, Decision of 9 April 2014, paras 25-31). The conclusion with regard to head of state immunity, and the relationship between obligations to cooperate and personal immunities is contested, are outside the scope of this article.[10]

However, in each of the UNSC referrals thus far (Sudan and Libya), binding obligations to cooperate with the ICC have only been imposed on those states referred. Both Resolutions decide that Sudan and Libya shall cooperate fully with ICC and the Prosecutor, but only urge other states to cooperate (SC res. 1593 2005, para 2; res. 19702011, para 5), which the Pre-Trial Chamber has acknowledged does not oblige them (Al Bashir, Decision of 10 October 2013, para 10). By contrast, the UNSC Resolutions creating the International Criminal Tribunals for Rwanda and the former Yugoslavia imposed cooperation obligations on all states (SC res. 827 1994, para 4; res. 955 1994, para 2). The Pre-Trial Chamber recognised this option was open to the UNSC, observing that it

may, by means of a resolution adopted under Chapter VII of the UN Charter, create an obligation to cooperate with the Court on those UN Member States which are not parties to the [Rome] Statute. In such a case, the obligation to cooperate stems directly from the UN Charter (Al Bashir, Decision of 10 October 2013, para 7).

It is worth noting that this potential is not limited to UNSC Resolutions which refer cases to the Court: the Council has previously instructed the UN Mission in the Democratic Republic of Congo (MONUSCO) to cooperate with the ICC (res. 2211 2015, para 9(d)), it could similarly decide that relevant states shall also cooperate. Indeed, the Office of the Prosecutor has noted (rather optimistically) that the Council could ‘specify particular measures to enable the Prosecutor to avoid strict requirements for state co-operation and to act with more authority to investigate a situation’ (2003, para 93).

Consequently, while the UNSC undoubtedly has the power to impose general obligations of cooperation on all states with respect to ICC referrals (or with respect to other ICC cases), the actual Resolutions which so far have referred situations to the Court have not done so, instead creating obligations only for the referred states.

Punishing Genocide

The Genocide Convention creates an obligation to punish genocide, and to cooperate with an ‘international penal tribunal’ but it is limited in scope (1948, art 6).[11] The International Court of Justice explained that the obligation is first to try before a state’s own courts persons accused of genocide which was committed on their territory, and secondly to cooperate with an ‘international penal tribunal’ if the state has accepted its jurisdiction (Bosnia v Serbia [2007], paras 184, 442-443). Unlike the obligation to extradite or prosecute (discussed below), it does not oblige states to confer or exercise jurisdiction over crimes not committed on their territory, nor to extradite persons on their territory for crimes committed elsewhere (Bosnia v Serbia [2007], para 447).

The limitations of this provision were made clear in the Bosnia v Serbia case, where Serbia was not held responsible for failing to punish persons accused of having committed the Srebrenica genocide because it did not occur on Serbian territory ([2007], para 442), but was held responsible for having failed in its obligation to cooperate with the Tribunal (an ‘international penal tribunal’, of which the parties to the Dayton Agreement had accepted the jurisdiction) by failing to arrest persons in their territory accused of genocide and hand them over to the tribunal ([2007], paras 443-449, 471). In particular, it found that failing to transfer Ratko Mladić meant it had breached this obligation ([2007], paras 448-449, 471).

Enforcement potential

To enforce this obligation at the International Court of Justice (described in more detail below), the Court’s jurisdiction may be founded on a compromissory clause. The Genocide Convention contains such a clause, which simply provides that disputes shall be submitted to the Court at the request of a party, without requirement for arbitration or specified time periods (1948, art 9). Because it obliges states to surrender genocidaires on their territory to the ICC if they have accepted its jurisdiction, the Convention firstly provides an alternative way of enforcing against states which are Rome Statute members. But further, it might seem to preclude enforcement against non-members. However, the International Court of Justice has clearly interpreted acceptance of jurisdiction as including the notion of being obliged to accept the jurisdiction of the tribunal, via UNSC Resolution ‘or some other rule of international law’ (Bosnia v Serbia [2007], para 446).[12] This interpretation suggests two potential avenues by which a non-Rome Statute party may be regarded as having accepted the ICC’s jurisdiction. The first is through a UNSC Resolution obliging states to cooperate with the court, as discussed above. The relevance of the Genocide Convention obligation in addition to the UNSC obligation discussed above would be the potential to seek enforcement at the International Court of Justice.

The second avenue is through the withdrawal process in article 127(2) of the Rome Statute. As noted above, states which withdraw from the Statute retain obligations in respect of ongoing cases. This could mean that a state which leaves the Rome Statute continues to be regarded as having accepted the Court’s jurisdiction for the purpose of cases which had commenced before their leaving. In short, for the purpose of the Genocide Convention, a state which leaves the Rome Statute may still be obligated to surrender alleged genocidaires such as al-Bashir. However, this interpretation would need to be tested. [13]

Thus in al-Bashir’s case (presently the only genocide indictee at the ICC), Sudan is the only state with the primary obligation to punish, and other states are obliged to surrender him if they have accepted the jurisdiction of the ICC. For the African states considering withdrawal from the Rome Statute, it is possible that they will continue to be under an enforceable obligation to surrender him, if another Genocide convention party is willing to test the case at the International Court of Justice.

Aut Dedere Aut Judicare

The aut dedere aut judicare principle can be traced to Hugo Grotius: ‘[w]hen appealed to, a State should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal’ (trans. Kelsey 1925, pp. 527). Now known as aut dedere aut judicare,[14] the obligation to extradite or prosecute appears in different forms in many different treaties. Its potential gained prominence after Belgium successfully sought its enforcement against Senegal at the International Court of Justice over the former President of Chad, Hissène Habré (Belgium v Senegal [2012]). The other relevant recent development was the conclusion of the International Law Commission’s work on the principle during its 66th session in 2014. The first of these cemented the possibility of enforcement of the obligation at the ICJ, while the second cemented its relationship and relevance to the ICC, both discussed below.

The International Law Commission attempted a categorisation of different forms of the obligation,[15] and concluded that attempting to harmonise the disparate treaty sources would be futile (2014, para 12). There is thus presently no single customary principle of aut dedere aut judicare concerning international crimes. But the individual treaties which overlap with Rome Statute crimes nonetheless provide independent sources of the obligation.

The Relevant Conventional Obligations:

Four conventional sources of the obligation aut dedere aut judicare overlap with the ratione materiae jurisdiction of the ICC: article 7(1) of the Torture Convention (1984)[16] and article 8(1) of the Hostages Convention (1979)[17]each provide an obligation to prosecute or extradite; article 11(1) of the Enforced Disappearances Convention (2006)[18] provides an obligation to prosecute, extradite or surrender to an international criminal tribunal whose jurisdiction the state has recognised; and each of the four Geneva Conventions of 1949 and the Additional Protocol I of 1977 oblige states to search for and prosecute grave breaches of those conventions or hand over the person in question to another High Contracting party which has established a prima facie case.[19]

Immediately apparent is that these obligations do not primarily concern cooperation with ICC arrest warrants: only the Convention against Enforced Disappearances obligation mentions a tribunal which the state has accepted the jurisdiction of (see the discussion above concerning this restriction in the Genocide Convention), while the Geneva Conventions specifically refer to handing over to ‘another High Contracting party.’ To complicate further, the Rome Statute itself distinguishes between the terminology of extradition to a state, and surrender to the Court (1998, art 102). Schabas explains that this is consistent with the ad hoc tribunals’ use of ‘surrender or transfer’, and that it is in response to “objections from States that have legislation, and sometimes even constitutional provisions, prohibiting the extradition of their own nationals.” (2011, p. 279) Similarly during the negotiation of the Geneva Conventions, the language of ‘handing over’ was preferred to ‘extradition’ in view of the variety of extradition laws and treaties in place, in contrast to the customary practice in connection with the United Nations War Crimes Commission (International Law Commission 2010, para 54).

Nevertheless, the International Law Commission takes the position that ‘the obligation to extradite or prosecute may be satisfied by surrendering the alleged offender to a competent international criminal tribunal’ (2014, para 34), describing this as a ‘third alternative’ (2014, para 27). The ‘third alternative’ notion draws support from the Draft Code of Crimes Against the Peace and Security of Mankind (1996, art 9),[20] the Council of Europe position that the principle ‘may be interpreted lato sensu to include the duty of the state to transfer the person to the jurisdiction of an international organ, such as the [ICC]’ (2006, p. 119), and the view of Judge Xue, that surrender to an international tribunal would not be contrary to the obligation because ‘such a tribunal is created precisely to fulfil the object and purpose of the Convention’ (Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, para 42).[21]

The key to this interpretation is the understanding that extradition or handing over are not the primary obligation, but options to relieve the primary obligation to prosecute. As the International Court of Justice explained, in the context of the Convention against Torture, ‘extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’ (Belgium v Senegal [2012], para 95). Similarly surrender to an international court, unless inconsistent with the object and purpose of the relevant conventions (Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, para 42), is an optional alternative to domestic prosecution.

The reason this option matters is that, by comparison to the Genocide Convention, the obligation to prosecute is irrespective of the nationality of the accused or the territory where the alleged crimes occurred. All that’s relevant is the accused person is present on the state party’s territory. If states want to avoid obligations to surrender to the ICC (or extradition to another state), they must prosecute.

Scope of the Offences 

However, the scope of these offences, and the nature of their overlap with Rome Statute crimes, is not quite as simple as it first appears. Torture, enforced disappearance, hostage taking and grave breaches of the Geneva Conventions are not recognised as distinct crimes in the Rome Statute, but rather fall into the constitutive elements of the main offences: war crimes, crimes against humanity, and genocide (leaving aside aggression). In some cases the convention definitions of the offences are more limited than the Rome Statute elements, particularly with regard to non-state perpetrators.

Torture may amount to a war crime (Rome Statute 1998, art 8(2)(a)(ii), art 8(2)(c)(i))[22] or crime against humanity (Rome Statute 1998, art 7(1)(f)),[23] and may be one of the constitutive acts of genocide, if coupled with the relevant special intent (Elements of the Crimes 2002, art 6(b) Element 1, fn 3). However, the convention definition of torture requires the relevant harm to be inflicted for the purpose of obtaining information, confession, or coercion and with the consent or acquiescence of a public official or person in an official capacity (Torture Convention 1984, art 1), whereas the Rome Statute definition only requires the infliction of the harm on a person under the accused’s custody or control (1998, art 81(2)(e)). The meaning of ‘public official’ has been interpreted by the Committee against Torture to include a quasi-government group exercising de facto government authority where there is no official government (Elmi v Australia [1998], para 6.5), but not where a functioning government is present (H.M.H.I. v Australia [2001], para 6.4).

Enforced disappearance may amount to a crime against humanity (Rome Statute 1998, art 7(1)(i)).[24] The convention defines enforced disappearance as perpetrated by agents of the state, or persons acting with the authorisation, support or acquiescence of the state (Enforced Disappearance Convention 2006, art 2)[25] whereas the Rome Statue definition requires perpetration by, or with the authorization, support of acquiescence of, a state or political organization (1998, art 7(2)(i)).

Grave breaches correspond to a category of Rome Statute war crimes (1998, art 8(2)(b)), but one which is expressly limited to situations of international armed conflict (1998, art 8(2)(b); Cassese 2008, pp. 87-88, 89). In respect of both the conventions and the Rome Statute, grave breaches cannot be committed, and the obligation to extradite or prosecute cannot be engaged, in purely internal armed conflict.

Finally, hostage taking may be charged as a war crime (Rome Statute 1998, art 8(2)(a)(viii) & art 8(2)(c)(iii)). However, the scope of the Hostages Convention is limited by article 12 to situations in respect of which the Geneva Conventions do not create a ‘prosecute or extradite’ obligation (1979). As the Geneva Convention obligations are limited to international armed conflict (see above), the application of the Hostages Convention obligation is effectively limited to non-international armed conflict (Dinstein 2014, p. 170; Rosenstock 1980, p. 184; R v Zardad (Faryadi) [2004], paras 2, 10, 15). In this respect it plays something of a ‘gap filling’ role to the Geneva Conventions (Tuck 2015, pp. 313-314).

Further, the Hostages Convention does not apply to acts of hostage taking committed by and against nationals of the same state, within that state, where the offender is found in the territory of that state (1979, art 13). It will thus only become relevant to a person accused of committing an offence where there is some international aspect, or they leave the state to another which is a party to the convention. Thus, for a state which finds a person on their territory who is alleged to have committed an offence elsewhere, the obligation to prosecute or extradite applies in the same manner as the other conventions.

This variety of caveats and qualifications can create the impression of a loose patchwork of obligations. But these diverse offences are crucial because, simply put, it only takes one relevant offence among many in a warrant or indictment to trigger the obligation to prosecute or extradite that person. For example, in Belgium v Senegal, although the Court was only concerned with obligations relating to torture as defined in the Convention, the initial extradition request stemmed from an international arrest warrant issued by a Belgian investigating judge which included, as well as torture, serious violations of international humanitarian law, genocide, crimes against humanity and war crimes ([2012], para 21). Because the practice of ICC indictments thus far has been to allege a multiplicity of charges and engage in cumulative and alternative charging,[26] it is foreseeable that most indictments will touch upon one of the relevant convention offences discussed.

Enforcement

Necessary for a state to seek enforcement before the International Court of Justice against a state hosting an indictee is both jurisdiction and standing. The Court’s jurisdiction is derived from the consent of states, meaning it can be invoked through compromissory clauses, or declarations assuming the compulsory jurisdiction of the court (Statute of the International Court of Justice, art 36). Such compromissory clauses appear in the Convention against Torture (1984, art 30(1)), the Convention against Enforced Disappearances (2006, art 42(1))[27] and the Convention against Hostage taking (1979, art 16(1)), in near identical terms (note that each allows states to opt out by declaration). They provide that any dispute which cannot be settled by negotiation shall be submitted to arbitration, and if this is not possible within six months of the request for arbitration, the dispute may be referred to the Court.

The Geneva Conventions by contrast do not contain any compromissory clause, and thus any action at the International Court of Justice based on their obligations would require reciprocal declarations of acceptance of jurisdiction.[28] Suffice it to say that state parties to those conventions with compromissory clauses may bring disputes between one another before the ICJ, provided neither party has declared themselves not bound by the compromissory clause.

Belgium v Senegal provided the key to potential enforcement by upholding the erga omnes character of aut dedere aut judicare obligations. It is critical because any party to the treaties can seek enforcement against another state party hosting an indictee, whereas on a stricter interpretation of standing only a state with valid jurisdiction over the crime, which had previous requested extradition and been refused, could seek enforcement.[29] The Court in Belgium v Senegal affirmed that obligations owed erga omes partes create a legal interest for every state party to seek enforcement against any other ([2012], paras 68-70).[30] The Court held, looking to the object and purpose of the Convention against Torture, that in common with the Genocide Convention, states parties share a common interest in ending the relevant crimes ([2012], paras 68-70).[31] The preambles to the Enforced Disappearances Convention (2006) and Hostages Convention (1979) reveal similar statements of object and purpose.[32]

As noted above, enforcement of the Geneva Conventions at the Intertantional Criminal Court is difficult because of the lack of compromissory clause. However, if states have made a declaration of acceptance of jurisdiction, there is at least one international decision indicating that international humanitarian law generally creates obligations erga omnes, and the relevant treaties (in this case the Geneva Conventions) create erga omnes contractanes (erga omnes partes), as opposed to synallgmatic (reciprocity based) obligations (Kupreškić et al. Decision of 17 February 1999).[33]

Therefore, generally state parties can enforce against other state parties the above conventions if an indictee visits their territory. In the case of al-Bashir’s visit to South Africa, his first arrest warrant includes the charge of torture as a crime against humanity (Al Bashir, Warrant of Arrest [2009]), and South Africa is a signatory to the Convention against Torture (and has made no reservation to article 7). Any other state party to the Convention against Torture could thus seek enforcement of the obligation against South Africa, even if it chooses to leave the Rome Statute.

Both the Hostages Convention and Convention against Torture boast large proportions of the international community as state parties (174 and 158 states respectively, at time of writing), whereas the Convention against Enforced Disappearances is comparatively less well ratified (51 states at time of writing).

Finally, a more comprehensive approach could appear in a future convention on Crimes against Humanity. The Special Rapporteur on Crimes Against Humanity, Mr. Sean Murphy, has indicated that a second report on the topic planned for 2016 would cover, inter alia, obligations to criminalise, extend national jurisdiction and extradite or prosecute (International Law Commission 2015b, para 179).[34] Currently the International Law Commission has provisionally adopted the first four articles of a draft convention and commentaries to them (2015a, para 113-114).[35] The articles thus far define crimes against humanity in a manner closely following the Rome Statute, and provide obligations to prevent and punish (International Law Commission 2015a, para 116). However, the Special Rapporteur’s proposed timeline anticipates a first reading of the complete draft articles by 2018, and a second reading by 2020 (International Law Commission 2015b, para 182), meaning the entry into force of binding conventional obligations concerning crimes against humanity in general is still on the far horizon.

Enforcement in National Courts

The focus of this article has been on state obligations in international law, and their enforcement in the international arena. But the case of the Pretoria High Court ordering al-Bashir’s arrest is a reminder that national courts and investigative organs have a significant role to play in enforcing these obligations, even where the political will may be lacking at the government level. The audacity of a civil society group seeking the arrest of a sitting head of state, and very nearly achieving it through court order, calls to mind the Pinochet case, where Scotland Yard executed a Spanish arrest warrant over the former Chilean dictator while visiting the UK, despite his close ties to the former Thatcher government. Although Pinochet was ultimately allowed to return to Chile for health concerns, the House of Lords made a striking blow against head of state immunity for torture. (R v Evans, ex parte Pinochet Ugarte [1999] 38 ILM 68 (Q.B. Div’l Ct. 1998); R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 3 WLR 1456; annulled by R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272; R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827)

The reasoning of the Pretoria High Court equally makes for a striking statement of the power of courts against executives. After setting out the reasons for making the arrest order of 15 June 2015, the Court discusses the ramifications of the fact that al-Bashir was allowed to leave the country despite the interim order. After reminding the Respondents – 12 organs of government including Ministers and Directors General – of the supremacy of the constitution and the rule of law (SALC v Minister of Justice and Constitutional Development [2015], para 37.1), the Court makes this rebuke:

A democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law, if the State, an organ of State or State official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues. ([2015], para 37.2)[36]

This case illustrates that the importance of the role of national actors, be they domestic courts, independent prosecutors or civil society should not be underestimated.

Conclusion

So, Caveat Vistator: but indicted visitors must beware not just Rome Statute membership where they visit, but parties to the Conventions against Torture, Enforced Disappearances and Hostage taking, to the Geneva Conventions and Additional Protocol I, former members of the Rome Statute who remain members of the Genocide Convention, and any state the Security Council decides shall cooperate with the ICC. In all of these cases there are existing obligations which have sufficient clarity to say that they bind states, and present a good chance of enforcement.

It is true that none of these are as clear or uncomplicated as would be ideal. Utopians can hope for stronger UNSC Resolutions, such as in the manner envisaged by the Office of the Prosecutor in its informal expert paper (2003, para 93), further development of the extradite or prosecute obligation towards the position articulated in Article 9 of the Draft Code of Crimes Against the Peace and Security of Mankind (1996), and a Convention against Crimes against Humanity earlier than 2025. Further, this article has not fully dealt with all of the complexities of this broad area – outside the scope of this piece have been the current position of head of state immunity, the interaction between enforcement at the International Court of Justice and the Rome Statute provisions for settlement of disputes (1998, art 119) questions of complementarity (such as if a non-state party chooses to prosecute an ICC indictee), and the relevance, if any, of regional schemes for extradition[37] – each of these are topics for another day.

17th and 18th Century piracy’s gift to international law was the concept of hostes humani generis – the perpetrators of certain crimes, as the common enemies of mankind, were to find no safe haven without jurisdiction to punish them (Cassese 2008, p. 28). The experience of al-Bashir demonstrates a more modest reality: that modern international criminals face a gradually tightening ‘web’ of states where visiting risks arrest and surrender, thus far generally considered to consist of state parties to the Rome Statute. But the purpose of this article has been to show that this web is, at least at law, far wider. This realisation is critical for those advancing the universalisation of international criminal law, and the arrest of indictees like Omar al-Bashir.

References cited

Treaties

Charter of the United Nations.

Statute of the International Court of Justice.

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

International Criminal Court, Elements of Crimes, Doc No ICC-ASP/1/3(Part.II-B) (adopted 9 September 2002).

International Criminal Court, Rules of Procedure and Evidence, Doc No ICC-ASP/1/3(Part.II-A) (adopted 9 September 2002).

International Criminal Court, Regulations of the Court, Doc No ICC-BD/01-03-11 (adopted 29 June 2012).

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, 2716 UNTS 3 (entered into force 23 December 2010).

International Convention Against the Taking of Hostages, 17 December 1979, 1316 UNTS 205 (entered into force 3 June 1983).

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950).

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).

Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978).

Security Council Resolutions

Security Council resolution 827, UN Doc S/RES/827 (25 May 1993).

Security Council resolution 955, UN Doc S/RES/955 (8 November 1994).

Security Council resolution 1593, UN Doc S/RES/1593 (31 March 2005).

Security Council resolution 1828, UN Doc S/RES/1828 (31 July 2008).

Security Council resolution 1970, UN Doc S/RES/1970 (26 February 2011).

Secuirty Council resolution 2211, UN Doc S/RES/2211 (26 March 2015).

International Court of Justice Cases

Questions Relating to the Oligation to Prosecute or Extradite (Belgium v Senegal) (Judgement) [2012] ICJ Rep 422.

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43.

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Order of 14 April 1992) [1992] ICJ Reports 114.

Case Concerning Barcelona Traction, Light, and Power Company, Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Reports 3.

International Criminal Court Cases

Prosecutor v Al Bashir (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-1, 4 March 2009).

Prosecutor v Al Bashir (Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-109, 27 August 2010).

Prosecutor v Al Bashir (Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-129, 12 May 2011).

Prosecutor v Al Bashir (Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-139, 12 December 2011).

Prosecutor v Al Bashir (Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-140-tENG, 13 December 2011).

Prosecutor v Al Bashir (Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09-151, 26 March 2013).

Prosecutor v Al Bashir (Decison regarding Omar Al Bashir’s Potential Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-164, 10 October 2013).

Prosecutor v Al Bashir (Decison on the Cooperation of the Democratic Republic of the Congo regarding Omar Al Bashir’s arrest and surrender to the Court) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-195, 9 April 2014).

Prosecutor v Bemba (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/05-01/08-424, 15 June 2009).

International Criminal Tribunal for the former Yugoslavia Cases

Prosecutor v Milošević (Indictment) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-99-37, 22 May 1999).

Prosecutor v Kupreškić et al. (Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-16, 17 February 1999).

Prosecutor v Kupreškić et al. (Trial Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-16, 14 January 2000).

Prosecutor v Furundžija (Trial Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-95-17/1, 10 December 1998).

Special Court for Sierra Leone Cases

Prosecutor v Taylor (Indictment) (Special Court for Sierra Leone, Case No SCSL-03-01-I, 7 March 2003).

Communications of the Committee against Torture

Committee against Torture, Decision: Communication No. 120/1998, UN Doc CAT/C/22/D/120/1998 (‘Elmi v Australia’).

Committee against Torture, Decision: Communication No.117/2001, UN Doc CAT/C/28/D/177/2001 (‘H.M.H.I. v Australia’).

United Kingdom Cases

R v Evans, ex parte Pinochet Ugarte [1999] 38 ILM 68 (Q.B. Div’l Ct. 1998)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 3 WLR 1456;

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272;

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827.

R v Zardad (Faryadi), Ruling on the Taking of Hostages Act 1982 (Unreported, Central Criminal Court, Treacy J) 5 October 2004. Available from: <www.redress.org/downloads/news/zardad%205%20oct%202004.pdf>. [10 January 2016]

South African Cases

Southern Africa Litigation Centre v Minister of Justice and Consitutional Development (Unreported, High Court, Fabricius J) 14 June 2015 (‘Interim Order’).

Southern Africa Litigation Centre v Minister of Justice and Consitutional Development [2015] ZAGPPHC 204 (24 June 2015) (High Court).

Minister of Justice and Consitutional Development v Southern Africa Litigation Centre [2015] ZAGPPHC 675 (16 September 2015) (High Court).

International Documents

International Law Commission, Survey of multilateral conventions which may be of relevance for the work of the International Law Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare)” Study by the Secretariat, UN Doc A/CN.4/630 (2010).

International Law Commission, Chapter VI: The obligation to extradite or prosecute (aut dedere aut judicare), in Report of the International Law Commission, UN Doc A/69/10 (2014).

International Law Commission, Chapter VII: Crimes against humanity, in Report of the International Law Commission, UN Doc A/70/10 (2015a).

International Law Commission, First report on crimes against humanity By Sean D. Murphy, Special Rapporteur, UN Doc A/CN.4/680 (2015b).

‘Draft Code of Crimes Against the Peace and Security of Mankind’ [1996] II(2) Yearbook of the International Law Commission 17.

Council of Europe, Extradition, European Standards: Explanatory notes on the Council of Europe convention and protocol and minimum standards protecting persons subject to transnational criminal proceedings (Council of Europe Publishing, Strasbourg, 2006).

Office ot the Prosecutor, Informal expert paper: Fact-finding and investigative functions of the office of the Prosecutor, including international co-operation (2003).

Multilateral Treaties Deposited with the Secretary-General, United Nations, New York (ST/LEG/SER.E) Available from: <https://treaties.un.org/Pages/ParticipationStatus.aspx>. [20 December 2015].

African Union Documents

African Union Peace and Security Council, Communique of the 142nd Meeting of the Peace and Security Council (PSC/MIN/Comm (CXLII)), 21 July 2008.

African Union Peace and Security Council, Communique of the 175th Meeting of the Peace and Security Council(PSC/PR/Comm (CLXXV)), 5 March 2009.

African Union Assembly, Decision on the Application by the International Criminal Court Prosecutor for the Indictment of the President of Sudan (Assembly/AU/Dec.221 (XII)), 3 February 2009a.

African Union Assembly, Decision on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec. 245(XIII) Rev. 1), 3 July 2009b.

African Union Assembly, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/ AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec.296(XV)), 27 July 2010.

Books and Journal Articles

Akande, D. 2009, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunities’, Journal of International Criminal Justice, vol 7, p. 333.

Cassese, A. 2008, International Criminal Law, 2nd ed, Oxford University Press.

Dinstein, Y. 2014, Non-International Armed Conflicts in International Law, Cambridge University Press.

Gaeta, P. 2009, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, Journal of International Criminal Justice, vol 7, p. 315.

Grotius, H 1925, De Jure Belli ac Pacis, trans. F. Kelsey, Clarendon Press.

Rosenstock, R. 1980, ‘The International Convention against the Taking of Hostages: Another International Community Step against Terrorism’, Denver Journal of International Law and Policy, vol. 9, p. 169.

Tuck, D. 2015, ‘Taking of Hostages’ in The 1949 Geneva Conventions: A Commentary, eds A. Clapham, P. Gaeta, M. Sassòli, Oxford University Press.

Schabas, W. 2011, An Introduction to the International Criminal Court, 4th ed, Cambridge University Press.

War Crimes Research Office, International Criminal Court Legal Analysis and Education Project 2010, The Practice of Cumulative Charging at the International Criminal Court, American University Washington College of Law.

News Reports

Immanuel, S. 2015, ‘Namibia: Cabinet Affirms ICC Withdrawal’, AllAfrica 24 November. Available from: <http://allafrica.com/stories/201511240340.html&gt;. [10 December 2015].

Reuters, 2015, ‘South Africa plans to leave International Criminal Court’, 11 October. Available from: <http://www.reuters.com/article/us-safrica-icc-idUSKCN0S50HM20151011&gt;. [20 December 2015].

Southern African Litigation Centre, ‘South Africa/Sudan: Seeking Implementation of ICC Arrest Warrant for President Bashir’. Available from: <http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-icc-arrest-warrant-for-president-bashir/&gt;. [20 December 2015].

The Guardian, 2016, ‘African Union members back Kenyan plan to leave ICC’, 2 February. Available from: <http://www.theguardian.com/world/2016/feb/01/african-union-kenyan-plan-leave-international-criminal-court&gt;. [2 February 2016].

Notes

[1]       The Rome Statute itself does not make use of the terms indictment or indictee, instead referring to ‘persons subject to a warrant of arrest’. See, e.g. Rome Statute 1998, art 60(1). Indictee is used here for ease of reference.

[2]        See Gaeta 2009; contra Akande 2009 and Al Bashir, Decision of 9 April 2014.

[3]       The Southern African Litigation Centre (‘SALC’), accessed at <http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africasudan-seeking-implementation-of-icc-arrest-warrant-for-president-bashir/&gt; on 20 December 2015.

[4]       Similarly, on the 23rd of November it was announced that the Namibian cabinet had approved a recommendation for that country to leave the Rome Statute: (Immanuel, 2015).

[5]       There is both a general obligation to cooperate with the Court in Article 86, and specific obligations to cooperate with requests from the Court in Article 87, of which a request for arrest and surrender provided for in Article 89 is a species.

[6]       See Al Bashir, Decision of 9 April 2014, and previously, Decision of 27 August 2010; Decision of 12 May 2011; Decision of 12 December 2011; Decision of 13 December 2011; Decision of 10 October 2013; and Decision of 26 March 2013.

[7]       Often referred to as the first sitting head of state to be indicted by any international criminal tribunal, however the initial indictment of Slobodan Milošević at the ICTY for crimes in Kosovo came in May 1999, while he was still president of Serbia. His indictment was later amended to include crimes in Croatia and Bosnia and Herzegovina after his fall from power and arrest in Serbia. See Milošević, Indictment [1999]. Similarly Charles Taylor was indicted by the SCSL while he was still President of Liberia. See Taylor, Indictment [2003].

[8]       Note that Chad entered a reservation to the relevant non-cooperation paragraph. The position of non-cooperation was repeated in July of the following year: AU Assembly 2010, para 5.

[9]       As the Pre-Trial Chamber has recognised, one imagines wistfully, “the Court has no enforcement mechanism and thus relies on States’ cooperation, without which it cannot fulfil its mandate and contribute to ending impunity.” Al Bashir, Decision of 10 October 2013, para 8.

[10]        See Gaeta 2009; contra Akande 2009.

[11]       “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”

[12]       Bosnia v Serbia, para 446: “The question whether the Respondent must be regarded as having “accepted the jurisdiction” of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? If so, it would have to be concluded that, for the Respondent, co-operation with the ICTY constitutes both an obligation stemming from the resolution concerned and from the United Nations Charter, or from another norm of international law obliging the Respondent to co-operate, and an obligation arising from its status as a party to the Genocide Convention, this last clearly being the only one of direct relevance in the present case.” The Court goes on to find that the FRY was under an obligation to co-operate with the ICTY first from the coming into force of the Dayton Accords, and that later its joining the United Nations provided a further basis of obligation to cooperate, due to the Security Council resolution: para 447.

[13]       A hypothetical opposing view could be that the Court in Bosnia v Serbia was speaking to the specific case of a tribunal created by Security Council resolution, rather than treaty: “When drafting the Genocide Convention, its authors probably thought that such a court would be created by treaty: a clear pointer to this lies in the reference to “those Contracting Parties which shall have accepted [the] jurisdiction” of the international penal tribunal.” para 445. This view could suggest than the Court’s subsequent interpretation is limited to the case of a tribunal established by Security Council resolution, and that in the context of the ICC ‘acceptance of jurisdiction’ means simply membership of the Rome Statute.

[14]       The International Law Commission notes that judicare has come to replaced punire “in order to reflect that an alleged offender may be found not guilty.” (2014, para 2).

[15]       The International Law Commission divides instances of the obligation into a typology of four models of obligation. Broadly, these are a) agreements to extradite in respect of certain crimes, with prosecution as a secondary obligation if extradition is refused, b) regional extradition treaties, c) the 1949 Geneva Conventions and the 1977 Additional Protocol I, and d) the ‘Hague Formula’, derived from the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and which appears in most of the Conventions discussed below (2014, paras. 6-10). Alternatively, Judge Yusuf in his separate opinion in Belgium v Senegal articulated two categories of conventions creating the obligation: a) those which impose first an obligation to extradite, where prosecution becomes an obligation only after extradition has been refused, and b) those which impose a primary obligation to prosecute, with extradition as an alternative to relieve that obligation: ([2012] paras 19-22).

[16]       “The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

[17]       “The State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.”

[18]       “The State party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.”

[19]       “Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”: Articles 49, 50, 129 and 146 of Geneva Conventions I, II, IIIand IV respectively; “The provisions of the Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol.”: Additional Protocol I, art 85(1).

[20]       “Without prejudice to the jurisdiction of an international criminal court, the State party in the territory of which an individual alleged to have committed a crime set out in article 17 [genocide], 18 [crimes against humanity], 19 [crimes against United Nations and associated personnel] or 20 [war crimes] is found shall extradite or prosecute that individual.” The Draft Code later became the basis for the Rome Statute, hence replacing the obligation aut dedere aut judicare with cooperation obligations.

[21]       Judge Xue dissents on other points, namely admissibility and the nature of obligations erga omnes.

[22]       The necessary additional requirements of torture as a war crime are observed by Cassese (2008, pp. 149-150).

[23]       The necessary additional requirements of torture as a crime against humanity are observed by Cassese (2008, pp. 149-150).

[24]       That widespread or systematic practice of enforced disappearance constitutes a crime against humanity is reaffirmed in the preamble and article 5 of the Enforced Disappearance Convention.

[25]       Note that article 3 encourages combatting disappearances perpetrated by non-state actors.

[26]       Cumulative charging however is a controversial practice, see Bemba (Decision of 15 June 2009); and the contrary view: War Crimes Research Office (2010).

[27]       “Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation or by the procedures expressly provided for in this Convention shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.”

[28]       As an example, Judge Sebutinde found that declarations accepting jurisdiction by both parties to the Belgium v Senegal case could have founded jurisdiction ([2012], Separate Opinion of Judge Sebutinde, paras 32-40).

[29]       For a clear articulation of this strict alternative view, see Belgium v Senegal [2012], Dissenting Opinion of Judge Xue, paras. 12-23.

[30]       The nature of erga omnes obligations was previously explained by the Court (in obiter) in Belgium v Spain ([1970], para 33).

[31]       Also see Furundžija [1998] paras 151-152.

[32]       Hostages Convention, preamble: “Being convinced that it is urgently necessary to develop international co-operation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism”; Enforced Disappearances Convention, preamble: “Determined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance”.

[33]       Reiterated in Kupreškić et al., Trial Judgement [2000] para 23: “This body of law does not lay down synallagmatic obligations, i.e obligations based on reciprocity, but obligations erga omnes (or, in the case of treaty obligations, obligations erga omnes contractantes) which are designed to safeguard fundamental human values and therefore must be complied with regardless of the conduct of the other party or parties.”

[34]       “A second report, to be submitted in 2016, will likely address… the obligation to submit the case to its competent authorities for the purpose of prosecution, unless the person is extradited to another State or surrendered to an international court or tribunal…”

[35]       The draft articles were adopted at the 3263rd meeting on 5 June 2015. The commentaries were adopted at the 3282nd meeting on 3 August 2015.

[36]       To add insult to (symbolic) injury, the Court awards costs against the Respondents “on a pro-bono basis” at para 2, and invites the NDPP to consider criminal charges at para 39.

[37]       See, e.g. Council of Europe (2006, pp. 119-122).

Polished Me Like a Jewel

Posted on January 16, 2020 

Text and photography by Emily Faux

Two tonnes of human hair are currently on display at the Auschwitz Museum. Hair was shaved from the corpses of prisoners selected for immediate death in the gas chambers and shaved off prisoners selected for labour as soon as they entered the camp. Following Hitler’s efficient, no-waste policies, the hair was gathered into 20 kg bales and sold to German firms to serve various purposes. Some victims’ hair was used to make ignition mechanisms in bombs, others’ for ropes, cords and mattress stuffing. This was the fate of one and a half million women, men and children over five years in Auschwitz alone. Inspired by my recent visit to Auschwitz-Birkenau, I wrote this poem as a fictional account following a young Polish Jew named Anne, whose hair was used to manufacture socks after her age and gender rendered her unsuitable for work and sentenced to immediate death.