How Far Can the Law Reflect the Contingent Nature of Genocide?
Hacettepe University, Turkey
The greatest achievement of modern law is its ability to reduce the complexity of real-life situations to abstract normative generalisations in such efficiency that applying generalisations back to novel situations causes moral dilemmas or questionable outcomes only in minority of situations. That said, genocide poses a rare challenge to lawyers on this front due to its uniquely collective and processual nature, as well as the contingency inherent to the protected good, namely ‘groups’. While this complex nature of the phenomenon is one of the underlying reasons for ambiguities in the legal definition, the judicial response to these has largely been introducing further universals in order to ensure ‘strict normativity’. However, such practice became possible only in expense of (i) adhering to substantialist and static ways of thinking about the groups – whether it is individualistic or collectivistic and (ii) representing genocide in an overly intentionalist manner. Consequently, the prevailing judicial representation not only widens the gap between the social reality and legal abstraction, which reduces the law’s efficiency and reliability in punishment and prevention, but also obscures the moral wrong of genocide that should guide the assessment process because of the constant clash between individualistic and collectivistic viewpoints. This paper argues that a way to move beyond this problematic and archaic conception is rethinking the legal representation from a relational standpoint and recognising the inherent relatedness between intentionality and collective ethos. This would ultimately dictate that the search for ‘objectivity’ in genocide law should not be understood in relation to ‘strict normativity’, but rather ensuring the predictability and consistency of the reference points in the assessment and application.
The Impact of the ECtHR’s Case-law on the Crime of Genocide: Towards a New Jurisprudence in International Law?
University of Naples Federico II, Italy
In March 2019, the European Court of Human Rights (ECtHR) rendered its judgment in the case of Drelingas v. Lithuania concerning the application of the principle of legality (Article 7 European Convention on Human Rights) with regard to the crime of genocide. The Drelingas judgment is significant to the extent that it challenges the traditional narrative according to which the crimes committed by the Soviet regime were not genocidal and arguably widens the scope of the 1948 Genocide Convention in order to include ‘ethno-political’ genocide, thus granting further protection to victims.
In this regard, different authors have pointed out how such a construction, despite its commendable effort, raises several concerns. In greater detail, the Court – bypassing the ‘as such’ requirement and implicitly overruling the judgment of the Grand Chamber in the case of Vasiliauskas v. Lithuania – overcame the well-established exclusion of political groups from the list of protected groups ex Article II of the Genocide Convention. Although the choice to limit the protection afforded by the Convention was already controversial in 1948, the reasoning of the Court is far from being convincing, for it neglected to conduct a careful examination of the mens rea requirement as well as of whether its interpretation of the wording ‘in part’ was foreseeable at the time the applicant committed his crimes.
Against this background, this presentation will focus on the shortcomings of the Judgment, whose outcome seems at odds with the principle of legality and supported by a flawed reasoning. In this respect, the presentation will dwell upon the possible far-reaching impact of the Drelingas judgment on future cases, contending that the lack of clarity and some unconvincing arguments should dissuade the same ECtHR as well as other international courts and tribunals from endorsing it.
‘Back to basics’: Genocide by destroying the group identity The case of indigenous people and the ICHR jurisprudence
UNIVERSITAT AUTÒNOMA DE BARCELONA, Spain
It is well known that the genocide concept devised by Lemkin was related to the protection of the group as such and therefore its identity was a fundamental piece. However, the political pragmatism of the late 1940s endend with an extremely restrictive positivisation, to the point that it could be said that it borders its "denaturalization. A good example of it is the ICJ interpretation of “ethnic cleansing” in the Croatia v. Serbia judgment (2015).
This narrow view of genocide clashes with the very purpose of the norm, and affect certain groups such as indigenous communities who define their identity not only on the basis of individual characteristics of their members but also on strictly collective ones: for instance a certain vision of the world, or its special bond with the earth.
The recognition of "subjectivity" to indigenous communities as such based on the collective identity should serve also for international crimes –including genocide- against the group by attacking its collective characteristics. All, beyond the victimization also of the individuals who are part of the community. This approach from the HR perspective has been developed by the Inter-American system of human rights with a very important evolution. From what the Commission sustained in the Aché (1977) or the Miskito case (1984) the Court has evolve and review that doctrine already in the Awas Tingni case (2001) and later in the famous Plan Sánchez case (2004) followed later by Moiwana (2005), Cgitay Nech (2010) or Rio Negro (2012), among others.
The question to be debated in this contribution is to what extent this jurisprudential evolution can help to "recover" the ultimate meaning that Lemkin was pursuing with the crime of genocide: avoid the destruction of a group defined by its identity whatever: religious, racial, national, ethnic or of any other kind.
How to Win a Case of Genocide: Analyzing the Triple Strategy of the Advocates of the Rohingya Minority in Myanmar
Ariel University, Israel
The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of human rights for many decades. This is the context of the last two waves of military crackdowns that took place in Rakhine state in Myanmar between October 2016 to January 2017 and between August to September 2017, in which the Tatmadaw army and civilians in Rakhine state committed atrocities against the Rohingya that amounted to crimes against humanity and genocide.
Encouraged by the investigations of the UN mechanisms, advocates for the Rohingya minority’s suffering took actions to leverage the mechanisms’ findings. They endeavored for an international condemnation of the state of Myanmar at the ICJ and they filed a complaint in an Argentinian court for the application of universal jurisdiction to prosecute individuals – including the military and the political leadership- responsible for ordering and committing the atrocities. They also encouraged an investigation of the atrocities in the ICC.
The litigators main focus was set on genocide, a strategy which has its faults and merits. On the one hand, genocide is “the crime of crimes,” with the stigma of the most heinous crime. However, genocide is also the hardest crime to prove, particularly the special intent to commit it.
In this article, I assess the chances of the triple strategy applied by the Rohingya minority advocates. I argue that the strategy of litigating the Rohingya case in three different fora, assures that its three components back up each other, so that the flaws of one are compensated by the other. Thus, the chances for accountability for the crime of genocide are increased. The three fora work interoperably to achieve the goal of proving that the crime of genocide has taken place in Myanmar, to impose state responsibility and to convict those responsible for the crime.