UN Whitaker Report on Genocide, 1985, paragraphs 69-77, pages 37-40 [ Table of Contents , Previous Section , Next Section ]
[Page 37]
PART III: FUTURE PROGRESS: POSSIBLE WAYS FORWARD

A. Ratification

69. As of 1 May 1985, 96 States are parties to the Convention on Genocide: These are: Afghanistan, Albania, Algeria, Argentina, Australia, Austria, Bahamas, Barbados, Belgium, Brazil, Bulgaria, Burkina Faso, Burma, Byelorussian Soviet Socialist Republic, Canada, Chile, China, Colombia, Costa Rica, Cuba, Cyprus, Czechoslovakia, Democratic Kampuchea, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, Fiji, Finland, France, Gabon, Gambia, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, India, Islamic Republic of Iran, Iraq, Ireland, Israel, Italy, Jamaica, Jordan, Lao People's Democratic Republic, Lebanon, Lesotho, Liberia, Luxembourg, Maldives, Mali, Mexico, Monaco, Mongolia, Morocco, Mozambique, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Papua New Guinea, Peru, Philippines, Poland, Republic of Korea, Romania, Rwanda, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Spain, Sri Lanka, Sweden, Syrian Arab Republic, Togo, Tonga, Tunisia, Turkey, Ukrainian Soviet Socialist .Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, Uruguay, Venezuela, Viet Nam, Yugoslavia and Zaire.

The following Member States have signed, but not yet ratified: Bolivia and the United States of America.

The following States have not yet signed or ratified: Angola, Antigua and- Barbados, Bahrain, Bangladesh, Belize, Bhutan, Botswana, Burundi, Cape Verde, Central African Republic, Chad, Comoros, Congo, Democratic People's Republic of Korea, Democratic Yemen, Djibouti, Dominica, Equatorial Guinea, Ethiopia, Grenada, Guinea, Guinea Bissau, Guyana, Holy See, Indonesia, Ivory Coast, Kenya, Kiribati, Kuwait, Libyan Arab Jamahiriya, Liechtenstein, Madagascar, Malawi, Malaysia, Malta, Mauritania, Mauritius, Namibia, Nauru, Niger, Nigeria, Oman, Paraguay, Portugal, Qatar, St. Christopher and Nevis, Saint Lucia, Samoa, San Marino, Sao Tome and Principe, Seychelles, Sierra Leone, Singapore, Solomon Islands, Somalia, South Africa, Sudan, Suriname, Swaziland,,Switzerland, Thailand, Trinidad and Tobago, Tuvalu, Uganda, United Arab Emirates, Republic of Cameroon, United Republic of Tanzania, Vanuatu, Yemen, Zambia and Zimbabwe.

70. The Special Rapporteur strongly recommends that the United Nations should renew its efforts and take every feasible step to make ratification by the remaining Member States of the Convention universal as quickly as possible. A lead by the United States would be welcome (as Presidents Truman, Johnson, Nixon, Carter and Reagan urged). It is similarly recommended that those States who have not yet done so ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968.

B. Future options

71. The fact remains that although the Convention has been in force since 12 January 1951, any ascertainable effect of it is difficult to quantify, whereas all to much evidence continues to accumulate that acts of genocide are still being committed in various parts of the world. Certainly in its present form, the Convention therefore must be judged to be not enough. Further evolution of international measures against genocide are necessary and indeed overdue.
[Page 38]
72. It is important that the historic momentum of the spirit of international unity against genocide displayed by Nuremberg and the Convention should not be allowed to falter or lapse. Failure to make effective international legal provisions is likely to threaten peace, to drive nations to desperate unilateral measures (such as the abduction of Adolf Eichmann in Argentina to bring him to trial in Israel for genocidal acts in 1961), or to open excuses for the deplorable violence of terrorist reprisals (55). For too many centuries war and violence have been the standard method of avenging grievances, or of creating new ones. Now in the era of atomic weapons, human society depends for its future survival upon establishing in time alternative international legal means to resolve such disputes peacefully. Despite the problems in doing so, the size of the risk permits little further time for any more delay.

73. In place of the law of the jungle of "vae victis" ("woe to the conquered") Hugo Grotius laid the foundation for international law during the terrible Thirty Years War in the Seventeenth Century with his work De Jure Belli ac Pacis  (Concerning the Laws of War and Peace). Following the founding of the Red Cross two centuries later, a series of Geneva and Hague Conventions were ratified seeking to establish international norms of conduct even in warfare. There were however no agreed sanctions or procedure to deal with war criminals. After the First World War, the defeated Germans themselves held some war crime trials in Leipzig in 1922, but these were unsuccessfully organized and 888 people out of the 901 charged in them were acquitted. When in the Second World War awareness of the extraordinary scale of the Nazi crimes became widespread, a European Advisory Commission on War Crimes was set up to consider, as it was told by the French "an enemy who has sought to annihilate whole nations, who has elevated murder to a political system, so that we no longer have the duty of punishing merely those who commit but also those who plan the crime" (56) As early as January 1942 the representatives of nine occupied countries conferred in London and issued the St. James's Declaration that "international solidarity is necessary to avoid the repression of these acts of violence simply by acts of vengeance on the part of the general public and in order to satisfy the sense of justice of the civilized world" (57).

"The Declaration announced that punishment. for war crimes, whoever committed them, was now a principal war aim of the governments at the conference. It also made clear the intention to bring to justice not only those who themselves physically perpetrated such crimes, but those leaders who ordered them. The St. James Declaration was approved by Britain, the United States and the USSR, and significantly, expressed disgust not only at atrocity but at the idea of mere vengeance: it implied a desire for some [page 39] form of judicial proceeding to determine guilt and satisfy a sense of justice. The St. James's conference was followed by one practical step: the United Nations War Crimes Commission was set up in London in 1943 to collect and collate information on war crimes and criminals. 58/

At the Moscow Conference of Foreign Ministers in November 1943, Britain, the United States and the Soviet Union had issued a joint declaration condemning Nazi atrocities in occupied Europe. This stated that 'at the time of the granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi Party who have been responsible for or who have taken part in the above atrocities, massacres and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of those liberated countries and of the Free Governments which will be erected therein'."

74. Although a historic impetus of international agreement achieved the unprecedented establishment of the Nuremberg and Tokyo Tribunals, these were open to the accusation that they were set up ad hoc to enable victors, to pass judgement on vanquished. It would be a preferable concept to have instead an impartial but respected international body with permanent authority. None the less the final Count in the Nuremberg Charter broke new ground by charging defendants with "Crimes against Humanity" (59) a term used to cover the persecution of racial and religious groups and the wholesale exploitation of peoples. Doenitz suggested in his memoirs that the acts the Tribunal had examined were a purely German affair: Germans, he said, should have been allowed to "investigate and then bring to justice those who had been responsible for the in human enormities that had taken place". But what some of the international lawyers at Nuremberg hoped was that the trial would be the foundation of a new legal order. They wanted international law to be advanced and to govern the future conduct of nations. Robert Jackson reported to President Truman subsequently that the London agreement, prior to Nuremberg, had for the first time made explicit that:

"to persecute, oppress,. or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war; or to exterminate, enslave or deport civilian populations is an international crime and that for the commission of such crimes individuals are responsible." (60)

However once the International Military Tribunal at Nuremberg finished its work, there was no international criminal court. President Truman welcomed Biddle's recommendation that the United Nations be invited to draft a code of international criminal law. It has not yet been drafted. As historians of the Nuremberg cases observe, "it is in the broadest sense a political question whether nations prefer [Page 40] to have same objective body of law and an impartial institution to administer it or whether they prefer to settle disputes and fulfil their ambitions by force". (61)

75. It has equally been suggested that the influence of historical events also caused the character of the Convention to constitute more protest against the immediate past crimes than to create an effective instrument for the prevention or repression of genocide. (62) Critics have in fact alleged that the Convention represents at best almost a dead letter, and at worst has been perverted into a weapon of political warfare, (63) instead of being an instrument to liberate and reconcile mankind.

What should, and can be done?

76. One basic difficulty is that although the Convention concentrates on punishment of the crime, this is nearly meaningless at the international level in the absence of an International Penal Tribunal. Hence, it is only the Governments of States in the territories of which the crime was committed, that can institute proceedings for its punishment. However, in the case of "domestic" genocides, these are generally committed by or with the complicity of Gevernments, with the bizarre consequence that the Governments would be required to prosecute themselves. In actual practice, mass murders are protected by their own Governments, save in exceptional cases, where these Governments have been overthrown. Thus in Equatorial Guinea, Macias was found guilty of a number of crimes, including genocide, and executed. (64) In Kampuchea, however, Pol Pot is still at large, protected by his own army, and presumably also in some measure by the continued international recognition of his régime.

77. There exists support for a Supplementary Convention or Protocols to improve the Convention, though consensus would be hard to achieve amongst all Governments. (65) It is possible, and indeed to be hoped, though improvable, that [page 41] the existence of the Convention may have deterred more genocide from being committed. But as in attitudes to improving the United Natons human rights' effectiveness generally, too often respect for State sovereignty, domestic and territorial integrity can, and does, take precedence over the concern for protection against genocide. In these circumstances, there is a need for some new ideas or for institutions, relatively independent of the deliberations of the delegations of member States, such as an International Penal Court, and a High Commissioner for Human Rights, or else for forms of organized action outside the United Nations, by for example, the international non-governmental organizations. The recent United Nations support for the new Convention on Torture (reproduced as an appendix to this study) may afford fresh grounds for optimism, as well as some useful parallels. It is important to be practical and realistic, but also to work hard and without delay in view of the gravity of the subject.

______________________

[Page 38]
55. More than 50 Turkish diplomats, who certainly were innocent of any possible involvement in the Ottoman Empire's treatment of Armenians, have been assassinated by terrorists. The reform of legitimate international measures to deal with genocide would be a highly constructive way to cut support for terrorism.

56. United Kingdom Lord Chancellor's Office, LCO 2.2978. See A. and J. Tusa, op cit.

57. Telford Taylor, International Conciliation,  No. 450 (April 1949).
[Page 39]
58/ It was made up of representatives of 17 nations - but had no Russian member. Stalin would only join if every Soviet Republic were given separate representation. This was refused.

59. A term coined by Professor [Hersch] Lauterpacht [1897-1960].

60. 15 October 1946 ([Robert H.] Jackson papers [Library of Congress]).

61. A. and J. Tusa, op. cit.
[Page 40]
62. Dr. Lack, statement for the World Jewish Congress to the Sub-Commission, E/CN4/Sub.2/1984/SR.4.

63. Leo Kuper, op.cit.

64. In a report on The Trial of Macias in Equatorial in Guinea  (International Commission of Jurists, Geneva, 1979), the Legal Officer of the ICJ, Dr. Alejandro Artucio, concluded (i) that Macias was wrongly convicted of genocide, the Convention not having been signed or ratified by Equatorial Guinea, nor the crime of genocide incorporated in its laws, and (ii) that though mass murder was established, the intentional destruction of national, ethnic or religious groups, in terms of the Convention, was not proved. In an article on "The Human Rights Commission: The Equatorial Guinea Case", Human Rights Quarterly   (Vol. 3, No. 1), Randall Pegley expressed the view that the action of the Macias régime against two ethnic groups, the Bubis and Fernandinos, did fall within the United Nations definition of genocide but the author did not address the specific issue of the validity of the charge of genocide under the laws of Equatorial Guinea. In February 1984 it was reported that two former leaders were being tried in absentia for genocide in Bolivia.

65. Support for various additional protocols was received from the replies, inter alia, of the Governments of El Salvador and of Spain.

UN Whitaker Report on Genocide, 1985, paragraphs 69-77, pages 37-40 [ Table of Contents , Previous Section , Next Section ]