Problems of International Codification - Were the Atrocities in Cambodia and Kosovo Genocide?
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Problems of International
Codification – Were the Atrocities in
Cambodia and Kosovo Genocide?
William A. Schabas*
When Michael Scharf asked me to debate this issue, he did not specify
which atrocities were to be addressed. I toyed with the idea, somewhat
mischievously, of discussing the bombing of Cambodia in the early 1970s,
and of Kosovo in 1999, by the United States Air Force. In both cases,
there is a strong argument that the aerial attacks constituted violations of
international humanitarian law. Aggression would be the crime that fits
most closely. Although somewhat marginalized in contemporary interna-
tional humanitarian law,1 the crime of aggression was punished by war
crimes tribunals in the 1940s, when it was known as “crimes against
peace.”2 However, the brutal bombings of Kosovo and of Cambodia
might also meet the conditions of crimes against humanity, to the extent
that they constituted widespread or systematic attacks on civilian popula-
tions.
It is surely more than a rhetorical ploy to la unch this discussion with
an unexpected reference to the United States bombings, for in both cases
there is an arguable case for a connection to subsequent atrocities
committed by the regimes of Pol Pot and Slobodan Milosevic. In the
Cambodian case, Pol Pot’s Khmer Rouge were welcomed as they marched
into Phnom Penh in 1975. Many of those who would be its future victims
believed that Pot’s army would protect them from American attack.
Indeed, the notorious emptying of Cambodian cities that characterized the
beginning of the country’s bizarre social revolution was accomplished
peacefully. Most urban residents believed that the temporary evacuation
was required because of the threat of renewed attack from the United
* M.A. (Toronto), LL.D. (Montreal), Professor of Human Rights Law, Na-
tional University of Ireland, Galway and Director, Irish Centre for Human Rights.
Paper presented at the conference International Jurisdiction: Myths, Realities and
Prospects, New England School of Law, November 3, 2000.
1 . See Rome Statute of the International Criminal Court, U.N. Doc.
A/CONF.183/9 (1998), art. 5(2) (1998) [hereinafter Rome Statute].
2 . Agreement for the Prosecution and Punishment of the Major War Crimi-
nals of the European Axis, and Establishing the Charter of the International Mili-
tary Tribunal (I.M.T.), annex, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279, re-
printed in 39 A M. J. INT’L L. 257 (Supp. 1945), art. 6(a) [hereinafter Agreement
for the Prosecution].
287288 NEW ENGLAND LAW REVIEW [Vol. 35:2
States Air Force. In Kosovo, attacks on Kosovar Albanian populations
that were somewhat modest in scale only became full-blown ethnic
cleansing after the North Atlantic Treaty Organization (NATO) bombing
campaign had begun. Cause and effect? Surely not. However, to this
observer it seems grotesquely one-sided to examine only the atrocities of
the Khmer Rouge and Serbian armed forces and militias. To the victims,
people whose bodies are maimed and whose homes are destroyed by
napalm and cluster bombs, terms like “collateral damage” are surely little
more than sophistry.
To be fair to the organizers of this “brief debate,” I presume that the
subject is whether the atrocities committed by the Khmer Rouge in
Cambodia in the late 1970s and by the Milosevic forces in Kosovo in 1999
should be labeled “genocide.” A strict construction of the scope of the
term, defined in Article II of the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide,3 suggests the conclusion that they
were not. According to the Convention:
In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
4
(e) Forcibly transferring children of the group to another group.
Regrettably, most discussions of what is first and foremost a legal issue
usually degenerate, in short order, into accusations of “revisionism.” In-
sistence upon giving the term “genocide” a precise and rigorous scope is
said by some to further injure the sensibilities of the victims. Implied
analogies are made with the repulsive and discredited work of those who
deny the truth of the Holocaust, like David Irving and Robert Faurisson,
making genuine discussion difficult.
Of course, these innuendos are all wrong, because the debate is not
about the truth of what happened in Kosovo and in Cambodia. Rather, it
is about the characterization of the atrocities committed, and atrocities
they most certainly were. This debate is not about whether the crimes
committed by Pol Pot and Milosevic actually took place; it is only about
3 . Convention on the Prevention and Punishment of the Crime of Genocide,
Dec. 9, 1948, 78 U.N.T.S. 277, reprinted in 45 A M. J. INT’L L. 7 (1951).
4 . Id.2001] PROBLEMS OF INTERNATIONAL CODIFICATION 289
whether they are more properly described as crimes against humanity,
rather than genocide. There are several definitions of crimes against hu-
manity, but they share the common denominator of persecution of indi-
viduals or groups in a widespread and systematic fashion. 5 As for geno-
cide, it has a time-honored definition, first set out in Article II of the 1948
Convention and repeated without significant change in several subsequent
instruments, including the Rome Statute of the International Criminal
Court.6
CAMBODIA : WHAT IS THE GROUP?
In Cambodia, there has already been a genocide conviction, of sorts. In
1979, the regime that finally chased the Khmer Rouge from power held a
show trial of Pol Pot and Ieng Sary for charges of genocide. They were,
of course convicted, which is unsurprising given that the preamble of the
Decree Law establishing the so-called People’s Revolutionary Tribunal
denounced the massacres committed by the Pol Pot – Ieng Sary clique.
However, the convictions were not for genocide as defined in the Conven-
tion, but rather an idiosyncratic definition that is substantially akin to the
concept of crimes against humanity: “planned massacres of groups of in-
nocent people; expulsion of inhabitants of cities and villages in order to
concentrate them and force them to do hard labor in conditions leading to
their physical and mental destruction; wiping out religion; destroying po-
litical, cultural and social structures and family and social relations.”7
5 . See Agreement for the Prosecution, supra note 2, at art. 6(c); Control
Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes
Against Peace and Against Humanity, Dec. 20, 1945, Control Council for Ge r-
many, Official Gazette, No. 3, Berlin, Jan. 31, 1946, 50-55, art. II(1)(c); Principles
of International Law Recognized in the Charter of the Nuremberg Tribunal and in
the Judgment of the Tribunal, adopted at Geneva, July 29, 1950, U.N. GAOR
Supp. (no. 12), at 11, U.N. Doc. A/1316 (1950), reprinted in 44 A M. J. INT’L L.
126 (1950); Draft Code of Offences Against the Peace and Security of Mankind,
U.N. GAOR, 9th Sess., Supp. No. 9, U.N. Doc. A/2691 (1954), art. 2; Draft Code
of Crimes Against the Peace and Security of Mankind, Report of the International
Law Commission on its Forty-Third Session, U.N. GAOR, 46th Sess., Supp. No.
10, U.N. Doc. A/46/10 (1991), art. 21; Draft Code of Crimes Against the Peace
and Security of Mankind: Titles and Articles on the Draft Code of Crimes Against
the Peace and Security of Mankind Adopted by the International Law Commission
on its Forty-Eighth Session, U.N. GAOR, 51st Sess., U.N. Doc. A/CN.4/532
(1996), art. 18; Statute of the International Criminal Tribunal for the Former
Yugoslavia, U.N. Doc. S/RES/827 (1993), annex, art. 5; Statute of the Interna-
tional Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex, art. 4.
6 . See Rome Statute, supra note 1, art. 7.
7 . GENOCIDE IN CAMBODIA: DOCUMENTS FROM THE TRIAL OF POL POT AND
IENG SARY 45 (Howard J. De Nike et al. eds., 2000).290 NEW ENGLAND LAW REVIEW [Vol. 35:2
Genocide, as defined in the Convention, requires the intentional de-
struction of a “national, ethnical, racial or religious group.” Which group
was it in Cambodia? The indictment at the 1979 trial talks about a “sys-
tematic plan to kill all strata of the population.”8 Indeed, it is generally
agreed that the Khmer victims of the atrocities were identified by social or
economic standing. Those wearing eyeglasses, for example, were singled
out for persecution because they belonged to the suspect class of intelle c-
tuals. When the definition of genocide was being devised by the Sixth
Committee of the General Assembly in 1948, there were proposals to in-
clude social and economic groups, but these were quite unequivocally
rejected. 9 Furthermore, over the years, many have pleaded, but unsuccess-
fully, for an expanded scope of the Convention so as to cover political,
economic and social groups.10
Hurst Hannum and others have argued that because the victims were
members of a national group, this must constitute genocide.11 The argu-
ment leads to the conclusion that all mass killing is equivalent to geno-
cide, because obviously any large group of people will belong to one or
more national groups. The reasoning becomes circular and in effect de-
prives the distinct concept of genocide of any real meaning. To be fair,
the argument has found some sympathy before the Spanish courts in the
recent Pinochet case.12 The more perverse consequences of such an argu-
ment emerged when Milosevic charged NATO countries with genocide on
the same basis before the International Court of Justice in what is surely
one of the more frivolous claims to be submitted before that August
body.13
8. Id. at 463.
9. See U.N. GAOR, 6th Comm., 74th mtg., U.N. Doc. A/C.6/SR.74 (1948)
(de Beus, Netherlands). See also U.N. GAOR, 6th Comm., 69th mtg., U.N. Doc.
A/C.6/SR.69 (1948) (Pérez-Perozo, Venezuela); U.N. GAOR, 6th Comm., 72d
mtg., U.N. Doc. A/C.6/SR.72 (1948) (Raafat, Egypt).
10 . See, e.g., Comments and Observations of Governments on the Draft
Code of Crimes Against the Peace and Security of Mankind Adopted on First
Reading by the International Law Commission at its Forty-Third Session, U.N.
GAOR, 4th Comm., 448th mtg., U.N. Doc. A/CN.4/448, at 35-36 (1991); Report of
the Preparatory Committee on the Establishment of an International Criminal
Court, U.N. GAOR, 51st Sess., 22d Res., U.N. Doc. A/51/22, Vol. I, pp. 17-18, at
60 (1996); Report of the Preparatory Committee on the Establishment of an Inter-
national Criminal Court, Draft Statute & Draft Final Act, U.N. Diplomatic Conf.
of Plenipotentiaries on the Establishment of an ICC, U.N. Doc.
A/CONF.183/2/Add.1, at 11, n.2 (1998).
11 . See, e.g., Hurst Hannum, International Law and Cambodian Genocide:
The Sounds of Silence, 11 HUM. RTS. Q. 82 (1989).
12 . See Margarita Lacabe, The Criminal Procedures against Chilean and
Argentinian Repressors in Spain, available at
http://www.derechos.net/marga/papers/spain.html.
13 . See Legality of Use of Force (Yugo. v. Bel.), Verbatim Record, May 10,2001] PROBLEMS OF INTERNATIONAL CODIFICATION 291
Most serious observers, including my distinguished opponent in this de-
bate, Jason Abrams, now reject such a simplistic construction of the
Genocide Convention. 14 The United Nations Group of Experts (the
Group) that inquired into Khmer Rouge prosecutions was also quite skep-
tical of the argument. While agreeing that the Khmer people of Cambodia
constituted a national group within the meaning of the Convention, the
Group said that “whether the Khmer Rouge committed genocide with re-
spect to part of the Khmer national group turns on complex interpretative
issues, especially concerning the Khmer Rouge’s intent with respect to its
non-minority-group victims.”15 The Group declined taking a position on
the issue, saying that the matter should be addressed by the courts if
Khmer Rouge officials are charged with genocide against the Khmer na-
tional group. 16
Thus, the fundamental difficulty with using the term genocide to de-
scribe the Cambodian atrocities lies with the group that is the victim of
genocide. Destruction of Khmers by Khmers simply stretches the defini-
tion too much. At the same time, many observers attempt to salvage the
genocide allegation in Cambodia by focusing on the persecution of relig-
ious groups which are comprised within the Convention definition of
genocide. The Khmer Rouge considered Buddhist monks to be social
parasites. They obliged them to abandon their religious robes and to work
in manual labor alongside the Cambodian peasants. Those who refused
were punished with great brutality. Symbols of the religion, including the
pagodas, were vandalized and pillaged. The Khmer Rouge were no more
tolerant towards minority religions than they were towards Buddhism, that
of the majority. Thus, for example, the Muslim Cham were also singled
out for attack, with the goal being their assimilation into the majority
Khmer population.
Destruction of cultural institutions and forced assimilation are very ef-
fective techniques for destroying religious or ethnic groups. They are
prohibited by international law.17 The problem here is that these are not
acts of genocide within the scope of article II of the Convention. Indeed,
the drafters of the Convention quite expressly excluded cultural genocide,
1999 (Rodoljub Etinski); Legality of Use of Force (Yugo. v. Bel.), Verbatim Rec-
ord, May 12, 1999 (Ian Brownlie).
14 . See STEVEN R. RATNER & JASON S. A BRAMS, A CCOUNTABILITY FOR
HUMAN RIGHTS A TROCITIES IN INTERNATIONAL LAW, BEYOND THE NUREMBERG
LEGACY 245-47 (1997).
15. Report of the Group of Experts for Cambodia Established Pursuant to
General Assembly Resolution 52/135, U.N. GAOR, 53d Sess., U.N. Doc.
A/53/850, U.N. Doc. S/1999/231, annex, at 65 (1999).
16. See id.
17 . See International Covenant on Civil and Political Rights, adopted Dec.
19, 1966, 999 U.N.T.S. 171, art. 27 (entered into force Mar. 23, 1976).292 NEW ENGLAND LAW REVIEW [Vol. 35:2
with one exception, the forced transfer of children from one group to an-
other. The principal opposition to including cultural groups came from
countries of the “new world,” notably the United States and Canada.18
They wanted to stifle resistance to assimilation by immigrants and, per-
haps only intuitively at that time, were nervous about future claims from
aboriginal groups. In any event, that cultural genocide was excluded from
the Convention is uncontestable. For this reason, what was essentially
cultural genocide perpetrated against the Muslim Cham and the Buddhist
Monks falls short of what is proscribed by the Convention. The treatment
of the Buddhist Monks and the Muslim Cham would meet our contempo-
rary definitions of crimes against humanity without great difficulty. 19
They certainly fit within the tailor-made definition of genocide adopted by
the organizers of the 1979 trial.
Nevertheless, while the term “genocide” is legally inappropriate to de-
scribe the Khmer Rouge atrocities, it may have irrevocably entered our
human rights nomenclature.20 Legislation enacted in the United States in
1987 declares: “The persecution of the Cambodian people under the
Khmer Rouge rule, [when] the bulk of the Khmer people were subjected
to life in an Asian Auschwitz, constituted one of the clearest examples of
genocide in recent history.”21 A General Assembly resolution adopted in
1997 states: “Desiring that the United Nations respond positively to assist
efforts to investigate Cambodia’s tragic history including responsibility
18 . See U.N. ESCOR, 623d mtg., at 10, U.N. Doc. E/623 (1948); U.N.
ESCOR Ad Hoc Comm. on Genocide, 6th Sess., 14th mtg., at 10 (1948) U.N. Doc.
E/AC.25/SR.14, at 10; U.N. GAOR, 6th Comm., 83d mtg. (1948) U.N. Doc.
A/C.6/SR.83; see also W ILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW
179-89 (2000).
19 . There is, of course, the issue of whether crimes against humanity require
a nexus with armed conflict. Although required at Nuremberg, it is today axio-
matic that crimes against humanity can be committed in time of peace. See Prose-
cutor v. Tadic (Case no. IT-94-1-AR72), Decision on the Defence Motion for In-
terlocutory Appeal on Jurisdiction, Oct. 2, 1995, (1997) 105 I.L.R. 453, 35 I.L.M.
32, paras. 78, 140-41. Nevertheless, the point in time at which the nexus disap-
peared is certainly debatable.
20 . One of the great think tanks on the subject is called the Cambodian Geno-
cide Program, at Yale University.
21 . United States Foreign Relations Authorization Act, Fiscal Years 1988
and 1989, Pub. L. No. 100-204, § 906. In 1994, the United States Congress passed
the Cambodian Genocide Justice Act, which states that “[c]onsistent with interna-
tional law, it is the policy of the United States to support efforts to bring to justice
members of the Khmer Rouge for their crimes against humanity committed in
Cambodia between April 17, 1975 and January 7, 1979” Pub. L. No. 103-236, §
572(a). The 108 Stat. 486, 486-87 (1994) Act authorized the creation of the Office
of Cambodian Genocide Investigation to “develop the United States proposal for
the establishment of an international criminal tribunal for the prosecution of those
accused of genocide in Cambodia.” Id. at § 573(b)(4).2001] PROBLEMS OF INTERNATIONAL CODIFICATION 293
for past international crimes, such as acts of genocide and crimes against
humanity.”22
While this colloquial use of the term genocide may have considerable
appeal, it becomes troublesome once criminal prosecution is contem-
plated, as is currently the case with respect to the Cambodian atrocities.
In the course of negotiations concerning the establishment of a United
Nations-supported Khmer Rouge tribunal, the Cambodian government
proposed to redefine genocide once again, making it easier to convict.23 A
United Nations delegation, headed by legal officer Ralph Zacklin, noted
the discrepancy with the Convention definition and charged that any such
provision would violate the prohibition of retroactive offences.24 It added,
however, that the categories not covered by the Convention definition
would be captured under the rubric of crimes against humanity. 25 A
United Nations counter-proposal confined itself to the text of article II of
the Convention.26
KOSOVO : IS ETHNIC CLEANSING THE SAME AS GENOCIDE?
In contrast with the Cambodian atrocities, there is really no legal diffi-
culty with the targeted group in Kosovo. Clearly, the Kosovar Albanians
constitute a national, ethnical, racial or religious group. In 1999, they
were driven from their homes within Kosovo by Serb militias, who used
terrible violence in order to accomplish their objective: the ethnic cleans-
ing of the territory and the forced displacement of the Albanians to neigh-
boring states, principally Albania and the former Yugoslav Republic of
Macedonia. At the height of the violence, Louise Arbour, prosecutor of
the International Criminal Tribunal for the former Yugoslavia, indicted
several Serb leaders including Slobodan Milosevic for crimes against hu-
manity. The indictment includes the following:
22 . Situation of Human Rights in Cambodia, G.A. Res. 52/135, U.N. GAOR,
52d Sess., U.N. Doc. A/52/49 (1997) (emphasis added).
23 . The 1999 Cambodian proposal enlarged the enumeration of protected
groups to include: “wealth, level of education, sociological environment (ur-
ban/rural), allegiance to a political system or regime (old people/new people),
social class or social category (merchant, civil servant, etc.). See Draft Law on the
Repression of Crimes of Genocide and Crimes Against Humanity (unofficial trans-
lation from French) (copy on file with author).
24 . See Comments On the Draft Law Concerning the Punishment of the
Crime of Genocide and Crimes Against Humanity, Aug. 1999, para. 4 (copy on file
with author).
25 . See id. para. 3.
26 . Draft Law On the Establishment of a Tribunal for the Prosecution of
Khmer Rouge Leaders Responsible for the Most Serious Violations of Human
Rights, Aug. 1999 (copy on file with author).294 NEW ENGLAND LAW REVIEW [Vol. 35:2
34. During their offensives, forces of the FRY [former Republic of Yugosla-
via] and Serbia acting in concert have engaged in a well-planned and co-
ordinated campaign of destruction of property owned by Kosovo Albanian
civilians. Towns and villages have been shelled, homes, farms, and busi-
nesses burned, and personal property destroyed. As a result of these orches-
trated actions, towns, villages, and entire regions have been made uninhabit-
able for Kosovo Albanians. Additionally, forces of the FRY and Serbia have
harassed, humiliated, and degraded Kosovo Albanian civilians through
physical and verbal abuse. The Kosovo Albanians have also been persis-
tently subjected to insults, racial slurs, degrading acts based on ethnicity and
religion, beatings, and other forms of physical mistreatment.
35. The unlawful deportation and forcible transfer of thousands of Kosovo
Albanians from their homes in Kosovo involved well-planned and co-
ordinated efforts by the leaders of the FRY and Serbia, and forces of the
FRY and Serbia, all acting in concert. Actions similar in nature took place
during the wars in Croatia and Bosnia and Herzegovina between 1991 and
1995. During those wars, Serbian military, paramilitary and police forces
forcibly expelled and deported non-Serbs in Croatia and Bosnia and Herze-
govina from areas under Serbian control utilising the same method of opera-
tions as have been used in Kosovo in 1999: heavy shelling and armed attacks
on villages; widespread killings; destruction of non-Serbian residential areas
and cultural and religious sites; and forced transfer and deportation of non-
27
Serbian populations.
Significantly, the indictment does not charge the crime of genocide.
The indictment’s allusion to ethnic cleansing during the wars in Bosnia
and Herzegovina earlier in the decade is intriguing, because it implies that
this too was a crime against humanity and not genocide.
But why the distinction between ethnic cleansing28 and genocide? After
all, even the General Assembly of the United Nations, in a December
1992 resolution, spoke of “the abhorrent policy of ‘ethnic cleansing,’
which is a form of genocide.”29 The Special Rapporteur of the Commis-
27 . National Criminal Tribunal for Former Yugoslavia (Prosecutor v.
Milosevic), 1999, May 22, 1999 (Indictment No. IT-99-37-I).
28 . There is no official definition of the term “ethnic cleansing,” but the
proposal of Elihu Lauterpacht, sitting as an ad hoc judge in the International Court
of Justice, is widely acknowledged: “the forced migration of civilians.” Applica-
tion of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), 1993 I.C.J.
431, at 69.
29 . The Situation in Bosnia and Herzegovina, G.A. Res. 121, adopted on
Dec. 18 1992, U.N. GAOR, 47th Sess., U.N. Doc. A/RES/47/121 (1993). U.N.
SCOR, 47th Sess., 91st mtg., at 99, U.N. Doc. A/47/PV.91 (1993) (One hundred
and two in favor, with fifty-seven abstentions, on a recorded vote). The absten-
tions concerned a provision in the resolution calling for an arms embargo to be2001] PROBLEMS OF INTERNATIONAL CODIFICATION 295
sion on Human Rights on Extrajudicial, Summary and Arbitrary Execu-
tions has characterized ethnic cleansing as a euphemism for genocide.30
The view that the two terms are equivalent or that they overlap is widely
held within the diplomatic and academic communities.31 After many years
of sharing such a view, I have come to the conclusion that the two con-
cepts are quite distinct and that they do not coexist.
The principal act of genocide listed in the Convention is killing. It is
axiomatic that the distinction between genocide and the myriad other
forms of killing lies in the mental element or mens rea of the crime. The
génocidaire seeks to kill individuals with the intent to destroy the group to
which they belong, in whole or in part. Herein lies the fundamental dif-
ference with ethnic cleansing, which generally involves killing, but with
the intent to effect forced migration from a territory. The ultimate conse-
quence may be the same: the ethnically cleansed group, deprived of its
linguistic, cultural, economic and political infrastructure may well cease to
exist as a result of such forced migration. But this corresponds to acts of
cultural genocide which are not, unfortunately, contemplated by the Con-
vention definition. The ethnic cleanser may become frustrated, of course,
and evolve into a related but distinct species, the génocidaire. This is
what happened in Rwanda, when the extremists responsible for the ethnic
cleansing of Tutsi over several decades realized that their measures had
been ineffective, and that the return of Tutsi refugees was ensured by the
1993 Arusha Accords. When they realized the ineffectiveness of mere
ethnic cleansing, their intent was transformed into one bent to destruction,
not expulsion.
There is case law to support this analysis of the difference between eth-
nic cleansing and genocide. Until 1941, Nazi anti-semitic policies were
directed towards convincing Jews in Germany to leave the country. Jews
were required, of course, to pay a price for their freedom. Moreover, large
numbers who attempted to leave were unable to find refuge because other
lifted, and had nothing to do with the reference to genocide. See also Situation of
Human Rights in the Territory of the Former Yugoslavia: Violations of Human
Rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the
Federal Republic of Yugoslavia (Serbia and Montenegro), U.N. GAOR, 48th
Sess., U.N. Doc. A/RES/48/153 (1994); Rape and Abuse of Women in the Areas of
Armed Conflict in the Former Yugoslavia, U.N. GAOR, 48th Sess., U.N. Doc.
A/RES/48/143 (1994); Rape and Abuse of Women in the Areas of Armed Conflict
in the Former Yugoslavia, U.N. GAOR, 49th Sess., U.N. Doc. A/RES/49/205
(1995); Rape and Abuse of Women in the Areas of Armed Conflict in the Former
Yugoslavia, U.N. GAOR, 50th Sess., U.N. Doc. A/RES/50/192 (1996); Rape and
Abuse of Women in the Areas of Armed Conflict in the Former Yugoslavia, U.N.
GAOR, 51st Sess., U.N. Doc. A/RES/51/115 (1996).
30 . Extrajudicial, Summary or Arbitrary Executions, Note by the Secretary-
General, U.N. GAOR, 51st Comm., 457th mtg., U.N. Doc. A/51/457, at 69 (1996).
31 . See generally SCHABAS, supra note 18, at 192-94.296 NEW ENGLAND LAW REVIEW [Vol. 35:2
states refused to admit them. 32 The Nazi policy, at the time, was one of
ethnic cleansing although it would change, roughly at the time of the
Wannsee Conference in early 1942, to genocide. The District Court of
Jerusalem, in the Eichmann case, noted this evolution in Nazi policy,
commenting that “[t]he implementation of the ‘Final Solution,’ in the
sense of total extermination, is to a certain extent connected with the ces-
sation of emigration of Jews from territories under German influence.”33
Until mid-1941, when the Final Solution emerged, the Israeli court said “a
doubt remains in our minds whether there was here that specific intention
to exterminate,” 34 as required by the definition of genocide. The Court
said it would deal with such inhuman acts as being crimes against human-
ity rather than genocide. Eichmann was acquitted of genocide for acts
prior to August 1941.
When the Convention was being drafted, in 1948, there were proposals
aimed at broadening the definition of genocide so as to include
“[i]mposing measures intended to oblige members of a group to abandon
their homes in order to escape the threat of subsequent ill-treatment.”35
Proposed by Syria, it was obviously inspired by recent ethnic cleansing in
Palestine. But the major powers resisted its inclusion in the Convention
mainly out of fear that it might imply the ethnic cleansing perpetrated
against German minorities in Europe following the war, all of this pursu-
ant to the Potsdam Protocol. 36 During drafting of the Convention, the
United States expressed concern that the proposed definition of the crime
“might be extended to embrace forced transfers of minority groups such as
have already been carried out by members of the United Nations. ”37
32 . UNITED STATES HOLOCAUST M EMORIAL M USEUM, HISTORICAL A TLAS OF
THE HOLOCAUST 25-27 (1996).
33 . Att. Gen. Israel v. Eichmann, (1968) 36 I.L.R. 5 (D.C., Jerusalem), para.
80.
34 . See id. paras. 186-87, 244.
35 . Genocide – Draft Convention (E/794) and Report of the Economic and
Social Council, U.N. GAOR, 6th Comm., 3rd Sess., 234th mtg., U.N. Doc.
A/C.6/234 (1948).
36 . See A. De Zayas, International Law and Mass Population Transfers, 16
HARV. INT’L L.J. 207 (1975); A. DE ZAYAS, NEMESIS AT POTSDAM; THE
EXPULSION OF THE GERMANS FROM THE EAST (1989); Freiherr Von Braun, Ger-
many’s Eastern Border and Mass Expulsions, 58 A M. J. INT’L L. 747 (1964).
37 . Comments by Governments on the Draft Convention prepared by the
Secretariat, Communications from Non-Governmental Organizations, U.N. Doc.
E/623 (1948). The United States cited specifically paragraph 3(b): “Destroying
the specific characteristics of the group by: (b) Forced and systematic exile of
individuals representing the culture of a group . . . .” The fears of the United
States were not totally misplaced. One academic writer has said that “the expul-
sion of Germans and of persons of German descent living in the former eastern
provinces of Germany and in eastern and south-eastern European countries fre-
quently took place under conditions that are classifiable as genocide . . . .” Hans-2001] PROBLEMS OF INTERNATIONAL CODIFICATION 297
KNITTING TOGETHER GENOCIDE AND CRIMES AGAINST
HUMANITY
In both cases under discussion – Cambodia and Kosovo – the debate is
about use of the term genocide, and not about whether terrible atrocities
took place. It is surely common ground that the crimes committed in both
countries may be qualified as crimes against humanity. This raises the
question about the relationship between the two categories of offences. To
understand this aspect of the problem, a historical digression is required.
Both terms, genocide and crimes against humanity, emerged in the con-
text of criminal prosecution of Nazi crimes prior to and during World War
II. The term genocide was actually devised by an academic lawyer, Raph-
ael Lemkin, in a book published in 1944. 38 It was used by the prosecutor
at Nuremberg, in the 1945 indictment before the International Military
Tribunal, charging the defendants with “deliberate and systematic geno-
cide, viz, the extermination of racial and national groups, against the civil-
ian populations of certain occupied territories in order to destroy particular
races and classes of people, and national, racial or religious groups, par-
ticularly Jews, Poles, and Gypsies.”39 But the Nazis were not convicted of
genocide, because no such crime existed in the Charter of the Nuremberg
Tribunal. The judgment of September 30-October 1, 1946 referred, in-
stead, in article 6(c), to crimes against humanity. Although the expression
“crimes against humanity” had been used occasionally in the past, the
suggestion that it had a precise legal definition only arose in the final days
of the London Conference in August of 1945.
Since 1943, the United Nations War Crimes Commission and then, in
1945, the London Conference, had wrestled with whether or not atrocities
committed against civilians within Germany could even engage interna-
tional criminal liability. This idea came to be accepted, and in the final
text proposed by Robert Jackson, labels were given to the categories of
crime, including “crimes against humanity.” Jackson said the idea for the
term had come from a distinguished professor of international law, widely
Heinrich Jescheck, in II ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 541
(Rudolph Bernhardt, ed., 1995). During United States Senate consideration of the
Genocide Convention in 1950, James Finucane of the National Council for the
Prevention of War testified about the United States’ “genocidal intent, or geno-
cidal carelessness, at Potsdam.” Hearings Before a Subcommittee of the Commit-
tee on Foreign Relations, United States Senate, Jan. 23-25, and Feb. 9, 1950, at
312 (U.S. Gov’t Printing Office, 1950).
38 . See RAPHAEL LEMKIN, A XIS RULE IN OCCUPIED EUROPE: LAWS OF
OCCUPATION, A NALYSIS OF GOVERNMENT, PROPOSALS FOR REDRESS (1944).
39 . France v. Goering, (1946) 22 I.M.T. 203, at 45-46.298 NEW ENGLAND LAW REVIEW [Vol. 35:2
believed to be Sir Hersh Lauterpacht. However, Jackson and the other
representatives of the great powers – smaller powers did not participate in
the London Conference – were concerned that criminalization of civilian
atrocities might ultimately come back and bite them. The record of the
meetings leaves no doubt that the four powers insisted upon a nexus be-
tween the war itself and the atrocities committed by the Nazis against their
own Jewish populations. It was on this basis, and this basis alone, that
they considered themselves entitled to contemplate prosecution. The dis-
tinctions were set out by the head of the United States delegation, Robert
Jackson, at a meeting on July 23, 1945:
It has been a general principle of foreign policy of our Government from
time immemorial that the internal affairs of another government are not or-
dinarily our business; that is to say, the way Germany treats its inhabitants,
or any other country treats its inhabitants is not our affair any more than it is
the affair of some other government to interpose itself in our problems. The
reason that this program of extermination of Jews and destruction of the
rights of minorities becomes an international concern is this: it was a part of
a plan for making an illegal war. Unless we have a war connection as a ba-
sis for reaching them, I would think we have no basis for dealing with atroci-
ties. They were a part of the preparation for war or for the conduct of the
war in so far as they occurred inside of Germany and that makes them our
40
concern.
Speaking of the proposed crime of “atrocities, persecutions, and depor-
tations on political, racial or religious grounds,” Justice Jackson betrayed
the lingering concerns of his government:
[O]rdinarily we do not consider that the acts of a government toward its own
citizens warrant our interference. We have some regrettable circumstances
at times in our own country in which minorities are unfairly treated. We
think it is justifiable that we interfere or attempt to bring retribution to indi-
viduals or to states only because the concentration camps and the deporta-
tions were in pursuance of a common plan or enterprise of making an unjust
or illegal war in which we became involved. We see no other basis on
which we are justified in reaching the atrocities which were committed in-
side Germany, under German law, or even in violation of German law, by
41
authorities of the German state.
Justice Jackson’s oblique reference to the apartheid-like oppression of
40 . Minutes of Conference Session of July 23, 1945, in REPORT OF ROBERT
H. JACKSON, UNITED STATES REPRESENTATIVE TO THE INTERNATIONAL
CONFERENCE ON M ILITARY TRIALS 331 (1949).
41 . Id. at 333.2001] PROBLEMS OF INTERNATIONAL CODIFICATION 299
African-Americans within the United States at the time surely resonated
with the other delegations, the United Kingdom, France and the Soviet
Union, who had similar issues of their own either within their own territo-
ries or in their far-flung colonial empires.
The result, then, was the famous nexus between crimes against human-
ity and armed conflict, a definitional requirement whose ultimate disap-
pearance was only confirmed in 1995 in the Tadic jurisdictional decision42
and finally laid to rest in article VII of the Rome Statute of the Interna-
tional Criminal Court.43 The nexus was the creation of the major powers,
and it arose out of concerns that they too might be held accountable for
human rights violations within their own territories. This view was not
shared by many of the smaller, emerging powers at the time, troubled by
the hypocrisy of a definition of crimes against humanity that would target
the Nazis but leave colonial abuses untouched. For them, international
prosecution of atrocities committed against civilians within sovereign
states was a component of the new world order founded on human rights
that had been promised them as part of the post-war peace dividend.44
In the days that followed the Nuremberg judgment in 1946, several of
these third world states, such as India, Costa Rica, Cuba and Saudi Arabia,
went on the offensive. Rather than amend the definition of crimes against
humanity, they proposed the codification of a cognate concept, genocide,
but with the added proviso that it could be committed in time of peace as
well as war.45 In effect, they sought the recognition of crimes against hu-
manity without the nexus. But there was a price to pay: the scale of civil-
ian atrocities would be narrower, confined to the intentional destruction of
groups rather than the broader concept of persecution that could be found
in crimes against humanity. Both the protected groups and the punishable
acts had considerably more scope in the original proposal of the definition
of genocide, but this was narrowed in the course of the two-year long ne-
gotiations which were only finalized in December 1948.
For fifty years, crimes against humanity and genocide co-existed in par-
allel, so to speak. Most authorities treated genocide as a sub-category of
crimes against humanity,46 although there were obvious distinctions that
42 . See Prosecutor v. Tadic, 35 I.L.M. 32, paras. 78, 140-41.
43 . See, e.g., Rome Statute, supra note 1.
44 . See generally PAUL GORDON LAUREN, THE EVOLUTION OF
INTERNATIONAL HUMAN RIGHTS, VISIONS SEEN (1998).
45 . See G.A. Res. 96(I), U.N. Doc. A/Res/96(I) (1946). For a summary of
the history of the resolution, see U.N. Doc. E/621 (1947).
46 . See Convention on the Nonapplicability of Statutory Limitations to War
Crimes and Crimes Against Humanity, 754 U.N.T.S. 73, art. I; European Conven-
tion on the Non-Applicability of Statutory Limitation to Crimes Against Humanity
and War Crimes of January 25, 1974, E.T.S. 82, art. 1(1); Second Report On the
Draft Code of Offences Against the Peace and Security of Mankind, by Mr. Dou-300 NEW ENGLAND LAW REVIEW [Vol. 35:2
made the relationship awkward. Recently, these distinctions have been
highlighted by judges at the ad hoc tribunal for Rwanda in the context of
debates about cumulative offences.47 It would be more productive for
judicial energy to be devoted to harmonizing the two offenses,48 in much
the same way as the Appeals Chamber addressed the incoherence between
“grave breaches” and “violations of the laws or customs of war” in the
Tadic jurisdictional decision. The Chamber found the latter to be the
“umbrella clause” addressing all forms of war crimes except for a special
category, created by treaty, known as “grave breaches.”49 However, the
various chambers of the ad hoc tribunals have, to date, leaned towards
distinguishing the two concepts. They have held that “cumulative of-
fenses” of crimes against humanity and genocide are possible because the
two categories do not overlap, and that there is no hierarchy between the
various crimes within their jurisdiction. 50 Yet, the description of genocide
as “the crime of crimes” suggests that a hierarchy must exist.51
dou Thiam, Special Rapporteur, 1984 U.N.Y.B., Vol. II, at 93, paras. 28-29; Re-
port of the International Law Commission On the Work of Its Forty-Eighth Session
6 May-26 July 1996, U.N. GAOR, 51st Sess., U.N. Doc. A/51/10 (1996), at 86;
STEFAN GLASER, DROIT INTERNATIONAL PÉNAL CONVENTIONNEL 109 (1970);
Yoram Dinstein, Crimes Against Humanity, in THEORY OF INTERNATIONAL LAW AT
THE THRESHOLD OF THE 21ST CENTURY 905 (Jerzy Makarczyk ed., 1996); Theodor
Meron, International Criminalization of Internal Atrocities, 89 A M. J. INT’L L.
554, 557 (1995); Prosecutor v. Tadic, supra note 19, at 140; Prosecutor v. Tadic
(Case No. IT-94-1-T), Opinion and Judgment, May 7, 1997, paras. 622, 655;
Prosecutor v. Tadic (Case No. IT-94-1-A), Judgment, July 15, 1999, at 251. Report
on the situation of human rights in Rwanda submitted by Mr. René Degni-Segui,
Special Rapporteur, under paragraph 20 of resolution S -3/1 of 25 May 1994, U.N.
Doc. E/CN.4/1996/7, para. 7; Report of the Committee on the Elimination of Ra-
cial Discrimination, U.N. GAOR, 52d Sess., para. 159 (1997), U.N. Doc. A/52/18.
For a discussion of the issue at the time of the drafting of the Genocide Conven-
tion, see the annotation to United States of America v. Greifelt (“Rusha trial”),
(1948) 13 L.R.T.W.C. 1 (United States Military Tribunal), at 40-41.
47 . See Prosecutor v. Kayishema & Ruzindana (Case No. ICTR-95-1-T),
Judgment, May 21, 1999, para. 89.
48 . For a helpful proposal along these lines, see L.C. Green, ‘Grave
Breaches’ or Crimes Against Humanity?, 8 U.S.A.F. ACAD. J. LEGAL STUD. 19, 29
(1997-98).
49 . See generally Tadic, 35 I.L.M. 32, and supra note 19 and accompanying
text.
50 . Prosecutor v. Erdemovic (Case No. IT-96-22-S), Separate Opinion of
Judge Shahabudeen, Mar. 5, 1998, (1998) 37 I.L.M. 1182, para. 20, Prosecutor v.
Tadic (Case No. IT-94-1-T), Separate Opinion of Judge Robinson, Nov. 11, 1999;
Prosecutor v. Blaskic (Case No. IT-95-14-T), Judgment, Mar. 3, 2000, para. 802;
Prosecutor v. Furundzija (Case No. IT-95-17/1-A), July 21, 2000, paras. 243, 247.
51 . Prosecutor v. Rutaganda (Case No. ICTR-96-3-T), Judgment and Sen-
tence, Dec. 6, 1999, § 451; Prosecutor v. Serushago (Case No. ICTR-98-39-S),
Sentence, Feb. 2, 1999, at 15.2001] PROBLEMS OF INTERNATIONAL CODIFICATION 301
CONCLUSION
The historic muddying of distinctions between genocide and crimes
against humanity may be understood as an attempt to stigmatise behavior.
It is often hard to resist the temptation to qualify atrocities with the word
“genocide,” a word loaded with such terrible connotations. The corollary
of this is the difficulty in contending that specific acts, while horrible, do
not rise to the threshold of genocide. But this is more than just a political
argument. The odium attached to genocide is mirrored in international
law by the very existence of a treaty, the Convention, something that can-
not be said for the case of crimes against humanity. Since 1948, then,
human rights activists seeking to apply international law to atrocities
turned inevitably to the Convention. Like the fabled Procrustes bed, the
definition of genocide was subject to a more or less continual process of
interpretation in the hopes that it would fit situations for which it was
never designed.
These comments about the atrocities committed in Kosovo and Cambo-
dia are informed with a narrow construction of the definition of genocide,
and as such run up against a great deal of academic commentary over pre-
vious decades favoring its enlargement, either by amendment or by gener-
ous judicial interpretation. Lest I be accused of being overly inspired by
strict constructionists like Antonin Scalia, let me explain what I consider
to be sound policy reasons for retaining a narrow approach to the defini-
tion of genocide.
First, of course, there are serious arguments rooted in the norms of hu-
man rights dealing with judicial fairness that militate against liberal con-
structions of penal offenses. Besides the well-known interpretative canon
of strict construction, reference should also be made – as was done by a
United Nations lawyer in the Cambodia negotiations, cited above – to re-
spect for the rule against retroactive criminal offences. But this is not the
heart of my concern about broadening the scope of the term genocide.
Although the Convention is principally about the punishment of the
crime – a matter addressed in most of its substantive provisions – the
treaty also imposes an obligation of prevention. The term is an enigma,
and there is essentially nothing in the Convention to designate the scope of
the duty to prevent genocide. How states behave when confronted with
genocide may give some clues on this. In 1994, as the Rwandan genocide
unfolded, several members of the Security Council, and in particular the
permanent members, were extremely reluctant to use the word “genocide”
in a resolution directed to the Rwandan crisis.52 In the view of many, in-
52 . According to the Report of the Independent Inquiry into the Actions of302 NEW ENGLAND LAW REVIEW [Vol. 35:2
cluding the Secretary-General Boutros Boutros-Ghali, this was because a
finding of genocide would impose an obligation to act to prevent the
crime. The United States was foremost among those who were uncom-
fortable with the word genocide. At a press briefing on June 10, 1994,
Department of State spokeswoman Christine Shelley said that the United
States was not prepared to declare that genocide was taking place in
Rwanda because “there are obligations which arise in connection with the
use of the term.”53 The position of the United States is still not entirely
clear on the subject, although obviously there has been considerable soul-
searching about the obligations that flow from the Convention in terms of
preventing genocide. In a speech at Kigali airport, on March 25, 1998,
President Bill Clinton said, contritely: “We did not immediately call these
crimes by their rightful name: genocide.”54 It is reasonable to deduce that
American hesitation at the time was in some way connected with a percep-
tion that there was indeed an obligation under the Convention.
If genocide is to be stopped in the future, it is imperative that the vague
obligation to prevent set out in article I of the Convention be made more
robust. But enhancing the obligations states are prepared to assume when
faced with genocide, up to and including military intervention, will never
be achieved if they are unsure about the crime’s parameters. Strict defini-
tion of the crime explains why, in 1948, the international community was
able to achieve a Convention, something that proved elusive for the
broader concept of crimes against humanity. And it remains the price to
be paid for recognition of a positive duty to act in order to prevent geno-
cide.
the United Nations During the 1994 Genocide in Rwanda, issued December 15,
1999 by the United Nations, “The delay in identifying the events in Rwanda as a
genocide was a failure by the Security Council. The reluctance by some states to
use the term genocide was motivated by a lack of will to act, which is deplorable.”
Id. (emphasis added).
53 . See PHILIP GOUREVITCH, W E W ISH TO INFORM YOU THAT TOMORROW
W E W ILL BE KILLED W ITH OUR FAMILIES, STORIES FROM RWANDA 153 (1998).
54 . Clinton’s Painful Words of Sorrow and Chagrin, N.Y. TIMES, Mar. 26,
1998, at A10.You can also read
