Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide

This article discusses one of the most controversial yet importantmodes of liability in international criminal law: joint criminalenterprise (JCE). One such controversy is whether Third CategoryJCE can serve as a basis for genocide convictions. To answerthis question one needs to uncover the nature and origins ofJCE. It is submitted that convictions for genocide based uponthe application of Third Category JCE are justifiable. Thiscontention stems from the premise that JCE is a form of criminalparticipation to which principles of derivative liability apply.However, such an approach is only valid when JCE is strippedto its core and applied as a small-scale group crime, whichrequires proof of a direct link between co-perpetrators. Moreover,in the case of Third Category JCE, a participant should be convictedof participating in genocide, which would carry a lower sentencethan committing genocide as a participant in a First or SecondCategory JCE.     

Divergent Approaches to Determining Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case

Internationally sanctioned assessments of genocide are relativelyuncommon, and since genocide is usually assessed in the contextof an individual's criminal prosecution, assessments of stateresponsibility for genocide are even rarer. Yet two such analyseshave recently been completed: the International Commission ofInquiry on Darfur's Report and the International Court of Justice'sJudgment on genocide in Bosnia. On a key issue, the methodologyfor determining whether a state is responsible for genocide,they diverged. Whereas the Darfur Commission determined whetherthe ‘central government’ of Sudan pursued a statepolicy or plan for genocide in Darfur, the ICJ stressed thata state commits genocide through the acts of its officials,holding that if a state organ or a person or group whose actsare legally attributable to the state, engages in genocide,then the international responsibility of that state is incurred.This article critically examines the different methodologicalapproaches taken by these two bodies in light of internationaljurisprudence. It argues that the Darfur Commission erred infocusing its genocide inquiry on whether high-level officialsin Sudan's government possessed genocidal intent, rather thanon the perpetrators of the underlying criminal acts. In addition,it argues that, whether the Commission's goal was to determinestate responsibility or individual criminal responsibility,its approach was at variance with international law as elucidatedin the UN ad hoc tribunals and as subsequently confirmed bythe ICJ in the Genocide Case. In that regard, the ICJ Judgmentreestablishes two sound methodological principles: the existenceof a state plan or policy, although probative of intent, isnot an implicit element of genocide; and determining state intent(however that may be defined) is not a part of determining stateresponsibility for genocide.     

The Background and Causes of the Genocide in Rwanda

This article begins with an account of significant events andsocio-political relationships in the history of Rwanda, leadingto mass murder and genocide in 1994. An explanation is thenoffered of these crimes, based on an analysis of certain ecological,economic, cultural and political factors specific to Rwanda,but shared to an important extent by much of East Africa.     

Is victim identity in genocide a question of science or law? The scientific perspective,with special reference to Darfur

In genocide, victims must represent an ethnic, racial, religious or national group. But is victim identity a question of science or law? Must victims be a socially recognized group or can group identity exist solely in the mind of the perpetrator? This question is relevant to the on-going crisis in Darfur. The “Arab-on-African” violence depicted in the media encompasses identities not shared by Darfurians. This study details an evaluation of victim identity in Darfur, based on field research and literature review. Darfurians are defined by subsistence strategy and economic groups are not protected under genocide law. Whether Darfur is genocide depends on whether victims must conform to scientific group classifications or need only be defined by their relationship to the perpetrators.     

Human rights violations and genocide in the Democratic Republic of the Congo

The massacres that took place in the Democratic Republic of Congo (DRC) between 1996 and 2003 have posed an interesting challenge to the global community, specifically to its more powerful members. Ironically, the Tutsi-dominated government of Rwanda enjoys international recognition and benefits based on the genocide, Rwanda suffered in 1994, but continues to deny the same benefit to Hutus as they were accused of leading a counter-genocide campaign then in the DRC. While the people of the DRC, as well as human rights activists, call for justice for all who were affected, the government of Rwanda, strongly backed by a number of powerful international powers, opposed attempts by the international community to pin charges of genocide perpetrated by its army in the DRC on it. Because of the clear negation of the genocide report by the Rwandan government, the nature of human rights, human rights violations, and genocide criteria proposed and defended by key members of the international community in relation to the mass killings in the DRC are examined.     

The Student Dormitory in the "Period of Stagnation" : The Erosion of Regulatory Processes

First, let us talk about definitions. After the events of 11 September, the theme of terrorism moved to the fore. Unfortunately, a confusion of concepts often takes place: political assassinations, genocide, intertribal strife, and many other things are now all being referred to as terrorism.     

AGE,GENDER, AND THE CRIME OF CRIMES: TOWARD A LIFE‐COURSE THEORY OF GENOCIDE PARTICIPATION*

This article asks whether genocide follows the age and gender distributions common to other crime. We develop and test a life‐course model of genocide participation to address this question using a new dataset of 1,068,192 cases tried in Rwanda's gacaca courts. Three types of prosecutions are considered: 1) inciting, organizing, or supervising violence; 2) killings and other physical assaults; and 3) offenses against property. By relying on systematic graphic comparisons, we find that the peak age of those tried in the gacaca courts was 34 years at the time of the genocide, which is older than the peak age for most other types of crime. We likewise find that women were more likely to participate in crimes against property and comparatively unlikely to commit genocidal murder. Symbolic–interactionist explanations of crime suggest people desist from crime as a result of shared understandings of the expectations of adulthood. We argue that this process may be turned on its head during genocide as participants may believe they are defending their communities against a perceived threat. Thus, in contrast to other criminological theories suggesting that people must desist from crime to be accorded adult status, some adults may participate in genocide to fulfill their duties as adult men.     

Crime and punishment in Rwanda

In 1994 Rwanda was devastated by genocide that killed hundreds of thousands of people and destroyed the country’s infrastructure. The credibility of the criminal justice system was questioned following the genocide because it had failed to stop the slaughter and may have contributed to it. In order to address these concerns, Rwanda rebuilt its criminal justice system in light of its history and troubled past. The success of the reestablishment may be debated but there can be no question that Rwanda had a tabula rasa with which to form an effective criminal justice system. Examining the law details the ideals of the criminal justice system as established post-genocide. These ideals exemplify the democratic process. Examining current events allows for a practical assessment of the success of the new system. In both theory and practice the country’s criminal justice system has changed drastically since 1994.     

Preventing Genocide: Measuring Success by What Does Not Happen

Although the concept of genocide prevention is recognized in international jurisprudence and the Responsibility to Protect (R2P) doctrine, its content remains vague and peripheral to legal scholarship and policy-making. Effective prevention is particularly challenging to grasp because success must be measured by what does not happen. Reaction to mass-atrocities must be replaced by early warning and rapid engagement through modest and feasible measures. With escalating violence, there may be greater attention to a situation, but also less willingness to intervene as humanitarian intervention through force and similar means becomes increasingly costly. A better understanding of the norms, institutions, and tools within reasonable reach of decision-makers is essential to translating genocide prevention from an elusive ideal into reality. This article evaluates and elucidates the law and practice of early warning and genocide prevention. First, the far-reaching potential of a preventive approach is illustrated based on the example of Rwanda where measures as modest as jamming radio broadcasts inciting hatred could have substantially constrained genocidal violence. Second, scholarship on the indicia and prediction of mass atrocities will be explored with a view to understanding the timeliness of action. Third, the legal and institutional dimensions of an obligation to prevent genocide and other mass-crimes will be addressed with a focus on recent developments within the UN system. And fourth, success stories from Macedonia, Côte d??Ivoire and Burundi will be examined in order to demonstrate the practical impact of early warning and prevention     

论卢旺达国际刑事法庭的管辖权

卢旺达国际刑事法庭的管辖权包括五类:其属地管辖权涵盖卢旺达及其邻国;其属人管辖权限于自然人;其属事管辖权包含种族灭绝罪、反人道罪和战争罪;其属时管辖权仅限于1994年度发生的犯罪,遭到卢旺达政府的批评;其并行管辖权和优先管辖权则与前南斯拉夫国际刑事法庭规定的同名管辖权有着质的区别。     

Gendered Genocide: The Socially Destructive Process of Genocidal Rape,Killing, and Displacement in Darfur

Accounts of mass atrocities habitually focus on one kind of violence and its archetypal victim, inviting uncritical, ungendered misconceptions: for example, rape only impacts women; genocide is only about dead, battle‐aged men. We approach collective violence as multiple, intersecting forms of victimization, targeted and experienced through differential social identities, and translated throughout communities. Through mixed‐method analyses of Darfuri refugees' testimonies, we show (a) gendered causes and collective effects of selective killing, sexual violence, and anti‐livelihood crimes, (b) how they cause displacement, (c) that they can be genocidal and empirically distinct from nongenocidal forms, (d) how the process of genocidal social destruction can work, and (e) how it does work in Darfur. Darfuris are victimized through gender roles, yielding a gendered meaning‐making process that communicates socially destructive messages through crimes that selectively target other genders. The collective result is displacement and destruction of Darfuris' ways of life: genocide.     

Making Genocide Unthinkable: Three Guidelines for a Critical Criminology of Genocide

Through a critical examination of some of the prevailing arguments for establishing a criminology of genocide, this paper seeks to demonstrate the limitations of mainstream criminological frameworks for understanding genocide. Moreover, it argues that, if we are to move beyond a mechanical application of the criminological canon to this thus far understudied area of criminal behaviour, we must develop a critical and reflexive criminological approach to the topic of genocide. In this manner, the analysis presented here follows in the footsteps of Bauman [Bauman (1989). Modernity and the Holocaust. Ithaca, NY: Cornell University Press] by asking: what can genocide teach us about criminology? In addressing this question, three guidelines for a future criminology of genocide are proposed. Briefly put, a criminology of genocide should be: (1) reflexive and non-redemptive; (2) ‘undisciplined’ and critical; and, (3) responsible.     

What the ICJ did not say about the Duty to Punish Genocide: The Missing Pieces in a Puzzle

The article focuses on the legal implications of the constructionof the International Court of Justice (ICJ or the Court) ofthe duty to punish genocide under Article VI of the Conventionon the Prevention and Punishment of the Crime of Genocide inthe Bosnia and Herzegovina v. Serbia and Montenegro judgment.It posits that the Court's discussion of the duty to punishis satisfying in terms of what it says and less satisfying interms of what it is silent about. It is satisfying in the sensethat the Court's construction of the duty to cooperate withinternational tribunals prosecuting genocide as including aduty of extradition, seems to extend beyond the plain languageof the Convention and indeed beyond the parties’ originalintent. It is not fully satisfying because the duty to prosecuteremains quite limited. It is further argued that the obligationto punish genocide as established in Article I and the obligationto prosecute genocide as established in Article VI should beunderstood as two distinct obligations. Article VI merely setsthe institutional arrangements for prosecution. Other normativesources support the conclusion that a general duty to prosecuteperpetrators of genocide or extradite them for prosecution elsewhereapplies even in those cases where the offence was not committedin the territory of a contracting state or when the offenderis prosecuted by an international court that has jurisdictionover the state where the alleged perpetrator is found.     

Then they came for the dogs!

This paper examines the British state’s desire to liquidate the Pit Bull as a breed. It examines the moral panic that brought the Pit Bull Terrier to public attention and traces the government’s knee-jerk response that resulted in the Dangerous Dogs Act (1991), the legal instrument that mandated Britain’s first attempt at canine genocide. Though public protection was the stated justification of this exercise in state violence, there was and is no evidence to support the case for canine killing through the indiscriminate blanket medium of breed specific legislation. Far from conceiving the dog an aggressor and humans its victims, this paper precedes on the assumption that the dogs are the victims and humans the inhuman aggressor. The paper concludes by examining the factors that provoked the UK’s descent into mass dog killing.     

The (in)significance of genocidal behavior to the discipline of criminology

Though scholars devoted to the discipline of criminology purport to be theoretically and pragmatically exhaustive with respect to their research on ``crime,' the study of genocide, an offense prohibited by international criminal law, has been virtually ignored. Nevertheless, the obligation to research genocidal behavior seems critical because of the comprehensive and threatening nature of the offense. Clearly, the consequences of genocide are more ominous than any single violation of domestic statutory law. Presentations at two annual criminal justice conferences and papers published in 13 prestigious periodicals devoted to the discipline of criminology are examined between 1990 and 1998. Content analyses demonstrate the reluctance of the discipline of criminology to identify the crime of genocide as one worthy of scholarly attention. These findings and the future of the discipline of criminology are assessed in light of the unequivocal danger posed by genocidal behavior.     

The Mengistu Genocide Trial in Ethiopia

This article analyses the sentencing judgment issued on 11 January2007 by the Ethiopian Federal High Court in the case of MengistuHailemariam and his co-accused who had been tried, among others,on charges of genocide and crimes against humanity. This wasthe first African trial where an entire regime was brought tojustice before a national court for atrocities committed whilein power. Twenty-five of the 55 accused found guilty, includingMengistu, were tried in absentia (Mengistu remains in exilein Zimbabwe). The trial took 12 years, making it one of thelongest ever trials for genocide. In December 2006, Mengistuwas convicted by majority vote of genocide and crimes againsthumanity pursuant to Article 281 of the 1957 Ethiopian PenalCode, which includes ‘political groups’ among thegroups protected against genocide. A dissenting judge took theposition that the accused should have been convicted of aggravatedhomicide because the relevant part of the provision had beenrepealed. A few weeks later, the Court, by majority, sentencedthe top tier of the accused to life imprisonment, taking intoaccount certain extenuating circumstances. If not for these,the death penalty would have been imposed. In addition to ensuringsome accountability, the judgment is important for providingan official and detailed account of what happened in those yearsin Ethiopia under Mengistu's reign. Given that in Ethiopia thereare no official gazettes where court judgments are published,it is unlikely that the public will be able to read the judgmentand thus become aware of what had happened. In addition to analysingthe reasoning of the court, this article also looks into theprevailing political circumstances in the country and reflectsupon the trial and the reception that this important decisionhas had, and will receive, in the wider community.     

Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?

The article addresses the tension between nation‐state memory and the law through “memory laws.” In contrast to laws that ban genocide denial or a positive perception of a violent past, I focus on laws that ban a negative perception of a violent past. As I will show, these laws were utilized for a non‐democratic purpose in the last decade or more: They were proposed in order to limit public debate on the national past by banning oppositional or minority views, in contrast to the principles of free speech and deliberative democracy. Their legislation in such cases also stands in opposition to truth‐telling efforts in the international arena. I compare two cases of memory legislation, in contemporary Russia and Israel, and evaluate their different impacts on democratic public debates in practice. A third case of “failed legislation” in France compliments the analysis by demonstrating not only the capacity but also the limitation of state power to silence or control public debate using the law. Although national laws often reflect majority culture and memory, I propose that memory laws in Russia, Israel, and France present an escalating degree of minority exclusion—from omission to active banning.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Collecting on Moral Debts: Reparations for the Holocaust and Pořajmos

In the early 1980s, Sebba (1980) explored the victimological and criminological dimensions of German Holocaust reparations, utilizing a broad definition of victimization similar to Mendelsohn's (1976) earlier framing of this notion, which included victims of genocide and mass violence. Since this time, scant attention has been paid to the victimology of state crime, and even less to the victimological implications of genocide and mass violence. This is unfortunate since critical victimological lessons can be drawn from the study of the victims of genocide and mass violence. In this article, we focus on the post–World War II monetary reparations, or "compensation," demands made against the West German state by Jewish and "Gypsy" survivors of Nazi state-sponsored violence. Through a comparative analysis of these two cases, we seek to illustrate the organizational, social, and discursive conditions that either enabled or obstructed victim mobilization and, in so doing, to develop critical tools for better understanding "victim movements" and the trauma narratives they construct.