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The Genocide Convention

The Genocide Convention: The Travaux Preparatoires (The Travaux Preparatoires of Multilateral Treaties) by Hirad Abtahi and Phillipa Webb (Brill Academic Publishers) This work gathers together for the first time in a single publication the records of the multitude of meetings which, in the context of the newly established United Nations, led to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide on 9 December 1948. This work will enable academics and practitioners easy access to the Genocide Convention's travaux preparatoires - an endeavour that has until now proven extremely difficult. This work will be of paramount importance for the international adjudication of the crime of genocide insofar as recourse to the 'general rule of interpretation' and the 'supplementary means of interpretation' under the 1969 Vienna Convention on the Law of Treaties is concerned.

Hirad Abtahi, diplome d'etudes approfondies in international law, is the first Legal Adviser to the International Criminal Court's Presidency. He was formerly legal officer in the Milosevi trial, at the UN International Criminal Tribunal. He has lectured and published in English, French and Persian. Philippa Webb, BA(Hons)/LLB (UNSW), LLM (Yale), is Special Assistant to President Rosalyn Higgins and Legal Officer of the International Court of Justice. She was formerly Associate Legal Adviser to the Prosecutor of the International Criminal Court.

Excerpt: This year the international community is celebrating the anniversaries of the adoption of two significant milestones in the effort to prevent and punish the crime of genocide.

On 9 December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. To this day, the Convention has provided the authoritative definition of genocide under international law. The Contracting Parties to this historic treaty confirmed that genocide is a crime under international law and undertook to prevent and to punish the crime. Moreover, they declared that individuals should be punished for genocide regardless of their official status. They agreed to enact necessary legislation to punish genocide and to provide effective penalties for those convicted of this offence. Article 6 of the Convention foresaw the possibility of an inter-national penal tribunal which could try persons charged with genocide.

Fifty years later, on 17 July 1998, a United Nations-sponsored conference created just such an international penal tribunal when it adopted the Rome Statute of the International Criminal Court. The Court has jurisdiction over the most serious crimes of concern to the international community, including genocide. It is a treaty-based court with 108 States Parties. The definition of genocide in the Rome Statute is taken from the 1948 Convention, and, like the 1948 Convention, the Rome Statute provides that official status does not exempt individuals from criminal responsibility.

Both the 1948 Convention and the Rome Statute recognize that it is primarily the responsibility of national courts to investigate and prosecute genocide. However, where national courts are unwilling or unable to do so genuinely, international courts and tribunals are necessary. For the first forty-five or so years following the adoption of the 1948 Convention, genocide was rarely punished by national courts, and no international courts or tribunals existed. Beginning in the 1990s, however, the situation changed considerably with the creation of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, and then the Rome Statute of the International Criminal Court. Trials have since been conducted and individuals have been convicted for genocide before the ad hoc Tribunals and national courts. Following the adoption of the Rome Statute and in accordance with its principle of complementarity, many States reviewed and amended their domestic legislation to be able to more effectively prosecute and punish international crimes, including genocide. In cases where national courts are unwilling or unable genuinely to investigate or prosecute, individuals may be tried on charges of genocide before the International Criminal Court.

As national and international courts are called on to deal with genocide, they will normally have recourse to the 1948 Convention either directly or in interpreting their own applicable laws. In the case of the International Criminal Court, for example, the Court shall apply applicable treaties and rules of international law as well as general principles of law derived from national laws of legal systems of the world. In this regard, it is worth recalling the finding of the International Court of Justice that "the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation."

As courts look into the 1948 Convention, many questions of interpre-tation will undoubtedly come up. In line with article 32 of the Vienna Convention on the Law of Treaties, the travaux pre'paratoires will play a valuable role as a supplementary means of interpretation. By collecting the travaux into one resource and giving the reader direct and unfettered access to the original sources, the authors of this book have performed a task which will be greatly appreciated by practitioners and academics alike. Using their experience at different international courts and tribunals dealing with genocide, they have organized and indexed the work in such a way as to assist the reader understand the 1948 Convention's complex history.

From the moment that Raphael Lemkin first coined the term "genocide" in 1944, the international community has sought to establish effective mechanisms to ensure its criminal prosecution either domestically or inter-nationally, and thereby its prevention. The world is still a long way from banishing this "odious scourge" as the Convention calls it. Nevertheless, with the recent enhancement of international criminal justice through the strengthening of domestic courts and the establishment of international courts and tribunals, substantial progress is being made.

Philippe Kirsch
The Hague
25 September 2008

Sixty years have passed since the Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature. It is a grim reality that there has been cause for national and international courts to interpret and apply this Convention on a regular basis. On the international level, the question of genocide has come before the International Court of Justice (ICJ), the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the European Court of Human Rights, the Inter-American Court of Human Rights, the Iraqi Special Tribunal and the Extraordinary Chambers in the Courts of Cambodia. Dozens of cases have also been heard by national courts.

The growing body of judicial practice that exists reveals different approaches to several aspects of the crime of genocide, including the definition of the protected group, the nature of the intent, the requirements of complicity, the relationship between ethnic cleansing and genocide, and whether cultural genocide exists. It is our hope that this publication will prove a source of reference for those who are grappling with these difficult questions.

This work had its genesis seven years ago, in the chambers of the ICTY, one of the international courts actively engaged in interpreting and applying the Genocide Convention.

In early 2001, while presiding over the genocide-related Sikirica case in the ICTY's Trial Chamber III, Judge Patrick Lipton Robinson would draw Hirad's attention to the 1969 Vienna Convention on the Law of Treaties during the discussions regarding the relevant provisions of the 1948 Genocide Convention. Judge Robinson particularly referred to Article 31 on "general rule of interpretation" and Article 32 on "supplementary means of interpretation", which provides:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. In accordance with this provision, Hirad gathered those documents of the travaux pre'paratoires that were relevant to the legal and factual aspects of the case at hand. Later in 2001, when the Milosevic case, which included genocide charges, was assigned to Trial Chamber III, Hirad did the same.

Beyond those travaux documents that appeared to be relevant to the above cases, the information contained in other travaux documents was so enlightening that Hirad began gathering them for his own interest, even after he left the ICTY to become the Legal Adviser to the ICC Presidency. To his surprise, there was no single publication containing all the travaux. It was during those years that the idea of this book germinated: to gather together in a single publication the records of the multitude of meetings which led to the adoption of the Genocide Convention.

But soon the task appeared to be monumental: dating back to the very origins of the United Nations in the late 1940s, most of the documents were old, often in bad condition and scattered in various places. Since the negotiations kept moving from one entity to another (and at times overlapped), tracing the discussions was like putting together a puzzle. Far from being discouraged, this complexity constituted an extra motivation

for developing the book project and in 2006 Hirad invited Philippa — a former colleague from the ICC who had taken up the post of Special Assistant to the President of the ICJ — to join the project. Having worked on the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the first legal case in which allegations of genocide had been made by one State against another, she immediately saw the value of the project.

Philippa undertook the task of gathering the remaining documents. Since no central list was ever produced by the UN, this process involved reading through the text and footnotes of every document to see which other documents were cited, searching electronic databases and catalogues, and trawling through materials in the Peace Palace Library in The Hague and the Dag Hammarskjöld Library in New York. After much investigative work, the number of documents had grown to three bulging folders.

The next challenge was to put these documents into an order that reflected the progression of the negotiations, and took into account the multiple entities, delegations and persons who contributed to the Convention. During many evenings in The Hague, after long days at the ICC and ICJ, Hirad and Philippa sorted through the documents and created the Complete List of Documents with Full Titles that appears before the Index. This detailed list adopts a minimalist approach, highlighting the three main texts: the Secretariat Draft, the Ad Hoc Committee Draft and the final Convention. It was a conscious decision not to provide multiple sub-headings. This was partly a result of the overlapping nature of some of the discussions — the negotiations simply could not be neatly divided into discrete categories. Moreover, Hirad and Philippa believed a 'neutral' presentation of the List would facilitate the act of interpretation.

None of the 337 documents were available in electronic, searchable format. Moreover, many of the documents only existed as fragile hard copies.

Brill arranged for all the materials gathered by Hirad and Philippa to be "rekeyed" and transformed into word-processed documents.

After receiving the word-processed files, Hirad and Philippa embarked on the editing process. This involved reading through the documents line by line, correcting any errors that occurred during the rekeying process, inserting [sic] to indicate errors in the original documents, reformatting the documents to achieve a consistent style for headings, paragraphs, quotations and lists, indicating where discussions did not pertain to the Genocide Convention, and identifying relevant line and page numbers for corrigenda.

Hirad and Philippa determined early on that a detailed Index would be vital to the project and meticulously compiled a long list of keywords to this end. These keywords were then arranged into analytical categories and cross-referenced. The Index is intended to be research guide. A reader may indeed start their research on the travaux with the Index; it is a gateway to the negotiation process.

In reading the travaux, the reader should bear in mind their historical context — the Genocide Convention was drafted at a time when, while the ashes of the Holocaust were still warm in Europe, the Pacific entrée en scène of Little Boy and Fat Man had brought World War II to a definitive end. This was a time when the Nurnberg and Tokyo trials were undertak-ing the then unimaginable task of trying individuals for war crimes and crimes against humanity. A time when a State called the Soviet Union existed, and when Bernard Baruch and Walter Lipmann were in the process of introducing the term Cold War. This was a time when the People's Republic of China had not yet been proclaimed, nor had Alfred Sauvy yet coined the term "Third World", and when, though still a fact of life, colonialism was beginning to be challenged.

It was in that context that the negotiations on the Genocide Convention took place, within the framework of the young United Nations. Bearing in mind this historical context helps one better understand the discussions among the delegations, including why particular topics generated in-depth — and at times passionate — debate.

Hirad and Philippa found two books particularly helpful for understanding the context of the negotiations: Nehemiah Robinson's masterful The Genocide Convention: a commentary' and William A. Schabas' definitive Genocide in international law. These two works are respectively a commentary and a "study" on the Convention, with the main voice being that of the author. This publication differs from those works in that it seeks to bring out the voices of the negotiators and drafters of the Convention by providing readers with the actual texts to interpret for themselves. It also includes a greater number of texts, such as working documents and corrigenda. This publication serves a complementary purpose to the invaluable works of Robinson and Schabas.

The decision to include every single relevant document produced between 1946 and 1948 was also motivated by the desire to make this work of interest to legal historians. The documents reproduced here are useful not only as "supplementary means of interpretation", but also as records of the "making of" one of the very first multilateral conventions drafted under the auspices of the United Nations. These verbatim records contain fascinating exchanges between some of the leading legal minds of the time (a number of whom went on to become Members of the International Court of Justice) and provide insights into the evolving methods of work for the drafting of international conventions.

There are many treasures buried in these travaux preparatoires. For instance, it is not widely known that it was the delegation of Saudi Arabia that proposed the very first draft of the Genocide Convention.' Some events take on significance with the benefit of hindsight — the delegation of Yugoslavia was one of the most vocal advocates of the "obligation to prevent" during the drafting of the Convention. Six decades later, Serbia was held by the ICJ to have violated this very obligation with regard to the 1995 genocide in Srebrenica.

Bearing in mind the fact that genocide is a complex crime (many nave opined that it has a subjective surplus and an objective deficit) it is our sincere hope that the readers — international and national judges and lawyers, legal academics, historians, anthropologists, sociologists, political scientists — will find this work helpful in comprehending the contours of this crime.

Hirad Abtahi and Philippa Webb The Hague, 8 August 2008

Reader's Guide

This work contains 337 documents produced between 1946 and 1948. It is treasure chest of material. The documents originated from national delegations, various committees and commissions, the Economic and Social Council, the Sixth Committee and the General Assembly. They include letters, communications, working papers, reports, summary records, procès verbaux, memoranda, notes, amendments, revisions, corrections, draft conventions and resolutions.

It is rather miraculous that the United Nations — newly established and working without the benefit of information technology — was able com-prehensively to document the making of the Genocide Convention in the way that it did. At the same time, the travaux pre'paratoires do con-tain errors and sometimes puzzling changes in chronology, language and numbering. In piecing together the negotiating and drafting process, we have had to make decisions about how to arrange this mass of material and present it to the reader. Our guiding principle has been to make the materials as accessible and user-friendly as possible, while being true to the originals.

This Reader's Guide explains the distinctive features of United Nations documentation and sets out the decisions we took in transforming this mass of papers into this publication. It also contains notes about specific documents.

Between 1946 and 1948, the United Nations was working on multiple issues and meetings that involved discussion of the Genocide Convention often included discussion on other issues. We have omitted such discus-sions where it is crystal clear that the discussion has no relevance to the Genocide Convention. We indicate this with "[Discussions pertaining to issues other than the Genocide Convention]". However, where the discussion could have some relevance or influence on the making of the Genocide Convention, we have erred on the side of caution and included it in the text and the index. Similarly, annexes that do not relate to the Genocide Convention are listed in the Table of Contents: Annexes to provide the reader with the context for meetings of the Sixth Committee that took place in 1948.

Tables of contents that appear in the original documents have been repro-duced, but page numbers now correspond to the pages in this publication. Footnotes are those found in the original documents, but we have, where necessary, moved them from the bottom of the page to a position in the text that makes it easier for the reader to refer to the footnote. Underlin-ing used in the original document has been converted to italics.

The English text of a document has been used even when the original language of the document was another official language of the United Nations. In two cases, only the French version of a document was available so we have included it here.6 Where a corrigendum pertains only to the French version of a document, we have not included in this work.'

Where identical documents with different document numbers exist, we have included only one.'

We have strived to establish the order of the documents in relation to the chronology of the discussions, not the date of issuance of the documents.

Often they coincide, sometimes they do not. We have been guided by the order in which documents were discussed by the drafters of the Genocide Convention.

As would be expected for such a large amount of material produced in rudimentary manner by today's standards, the travaux pre'paratoires contain a number of errors, ranging from spelling mistakes to incorrect document numbers.° "[sic]" has been inserted after apparent errors in the original documents. We have indicated punctuation errors with "kid" where the sense of sentence would otherwise be affected.

We have not indicated errors through the use of "[sic]" in the spelling of names of persons unless it is an obvious spelling mistake in a name that is repeated, such as "Laks" instead of "Lachs". In all other cases, we have reproduced the spelling, accents and symbols as they appear in the original documents. We have not corrected commonly accepted errors, such as "Nurnberg" or "Nuremberg" instead of "Nurnberg".

Some of the original documents are now in very poor condition. "[illegible]" has been used to replace words that cannot be read in the original or the best copy available thereof.

In several instances, a corrigendum was issued after the original document had been distributed. Since the line and page numbers in the corrigenda no longer relate to the line and page numbers of this publication, we have indicated in bold and square brackets the line and page numbers in the document that is being corrected. We have done the same where one document refers to certain pages in another document."

 

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